Holdsworth v. United States of America et al
Filing
32
DECISION and ORDER dismissing 14 Motion to Dismiss without prejudice to refiling within 30 days following the end of the 90-day discovery period.. Signed by Hon. Leslie G. Foschio on 9/27/2012. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSHUA HOLDSWORTH,
Plaintiff,
v.
UNITED STATES OF AMERICA,
L&D JOHNSON PLUMBING & HEATING, INC.,
a/k/a U.S. Veterans Constructions & Management Corp.,
DECISION
and
ORDER
11-CV-889A(F)
Defendants.
APPEARANCES:
HOGANWILLIG
Attorneys for Plaintiff
TERESA A. BAILEY, of Counsel
2410 North Forest Road, Suite 301
Getzville, New York 14068
WILLIAM J. HOCHUL, JR.
UNITED STATES ATTORNEY
Attorney for Defendant United States
GAIL Y. MITCHELL,
Assistant United States Attorney, of Counsel
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
BARTH, SULLIVAN & BEHR
Attorneys for Defendant L&D Johnson Plumbing
LAURENCE D. BEHR, of Counsel
43 Court Street, Suite 600
Buffalo, New York 14202
In this Federal Tort Claims Act action, Defendant, United States of America,
(“Defendant”) moved to dismiss based on a lack of subject matter jurisdiction, pursuant
to Fed.R.Civ.P. 12(b)(1) (“Defendant’s motion”) (Doc. No. 14). By papers filed April 10,
2012, Defendant asserts that it is immune from liability based on the discretion any
function exception to the FTCP and that Plaintiff’s action against it is also barred under
the Independent Contractor Doctrine (Doc. No. 22 ¶ ¶ 36-37). In opposition, Plaintiff
contends he is unable to oppose Defendant’s motion without adequate discovery. CoDefendant, L&D Johnson Plumbing & Heating, Inc. (“Co-Defendant L&D”) also opposes
Defendant’s motion on the merits and alternatively requests discovery directed to the
two grounds asserted in support of Defendant’s motion (Doc. No. 23 at 18). Upon
review of the Defendant’s motion papers, the opposition of Plaintiff and Co-Defendant
L&D, the court finds that discovery limited to Defendant’s assertion of the discretionary
function exception and independent contractor doctrine as grounds for Defendant’s
motion is warranted. See Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004) (citing
Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006, 1011 (2d Cir. 1986)
(“party asserting jurisdiction [ ] permitted discovery of facts demonstrating jurisdiction”)).
Such limited discovery may proceed for a 90-day period commencing upon service of
this Decision and Order. Defendant’s motion (Doc. No. 14) is therefore DISMISSED
without prejudice to refiling within 30 days following the end of the 90-day discovery
period. An order scheduling Plaintiff’s and Co-Defendant L&D’s further responses and
Defendant’s reply will be entered by the court following the expected re-filing of
Defendant’s motion which shall include consideration of the results of the limited
discovery permitted hereunder.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: September 27, 2012
Buffalo, New York
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