Upton v. United States Department of the Air Force

Filing 20

DECISION AND ENTRY DISMISSING WITH PREJUDICE ALL CLAIMS OF PLAINTIFFS IN (1) CASE NO. 3:20-CV-65 PURSUANT TO DECISION AND ENTRY FILED APRIL 9, 2021, (DOC. # 24 ) AND SUSTAINING MOTION TO DISMISS FOR LACK OF JURISDICTION AND FAILURE TO STATE A CLAIM (DOC. # 13 ); (2) CASE NO. 3:20-CV-71 PURSUANT TO DECISION AND ENTRY FILED APRIL 9, 2021, (DOC. # 19 ) AND SUSTAINING MOTION TO DISMISS FOR LACK OF JURISDICTION AND FAILURE TO STATE A CLAIM (DOC. # 17 ); AND (3) CASE NO. 3:20-CV-72 PURSUANT TO DEC ISION AND ENTRY FILED APRIL 9, 2021, (DOC. # 26 ); SUSTAINING MOTION TO DISMISS FOR LACK OF JURISDICTION AND FAILURE TO STATE A CLAIM (DOC. # 21 ); TERMINATION ENTRY IN CASE NO. 3:20-CV-65; CASE NO. 3:20-CV-71 ; AND CASE NO. 3:20-CV-72. Signed by Judge Walter H. Rice on 6/3/2021. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DIEDRA SIMPSON,
Plaintiff,

CASE NO. 3:20-cv-65
JUDGE WALTER H. RICE

v.

JOHN TOKARZ, et al.,
Defendants.
CALEB UPTON
Plaintiff,

CASE NO. 3:20-cv-71
JUDGE WALTER H. RICE

v.
UNITED STATES DEPARTMENT OF
THE AIR FORCE,
Defendant.
KATRICE MARSHALL
Plaintiff,

CASE NO. 3:20-cv-72
JUDGE WALTER H. RICE

V.

UNITED STATES DEPARTMENT OF
THE AIR FORCE
Defendant.

DECISION AND ENTRY DISMISSING WITH PREJUDICE ALL CLAIMS OF
PLAINTIFFS IN (1) CASE NO. 3:20-CV-65 PURSUANT TO DECISION
AND ENTRY FILED APRIL 9, 2021, (DOC. #24) AND SUSTAINING
MOTION TO DISMISS FOR LACK OF JURISDICTION AND FAILURE TO
STATE A CLAIM (DOC. #13); (2) CASE NO. 3:20-CV-71 PURSUANT TO
DECISION AND ENTRY FILED APRIL 9, 2021, (DOC. #19) AND
SUSTAINING MOTION TO DISMISS FOR LACK OF JURISDICTION AND

FAILURE TO STATE A CLAIM (DOC. #17); AND (3) CASE NO. 3:20-CV72 PURSUANT TO DECISION AND ENTRY FILED APRIL 9, 2021, (DOC.
#26); SUSTAINING MOTION TO DISMISS FOR LACK OF JURISDICTION
AND FAILURE TO STATE A CLAIM (DOC. #21 ); TERMINATION ENTRY
IN CASE NO. 3:20-CV-65; CASE NO. 3:20-CV-71 ; AND CASE NO. 3:20CV-72

This matter is before the Court pursuant to (1) an April 9, 2021, Decision and
Entry filed in three cases: Case No. 3:20-cv-65, Doc. #24; Case No. 3:20-cv-71 , Doc.
#19; and in Case No. 3:20-cv-72, Doc. #26. Th is Decision and Entry ordered
Plaintiffs to show cause, on or before April 26, 2021 , as to (1) why each case
should not be dismissed with prejudice and (2) why a Motion to Dismiss for Lack
of Jurisdiction and Failure to State a Claim ("Motion to Dismiss"), filed by
Defendants, the United States of America ("United States") and the United States
Department of the A ir Force, ("USAF"), in each case, Doc. ##13, 17 and 21,
respectively, should not be sustained. The Motions to Dismiss assert, among
other things, that although Defendant, John Tokarz, was an employee of the USAF
and working at Wright-Patterson Air Force Base ("WPAFB" ) in Dayton, Ohio, on
the date of the November 27, 2017, accident, he was not within the course and
scope of his employment when the accident occurred.
The Court will briefly review the background of the April 9, 2021, Decision
and Entry and the Motions to Dismiss.

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I.

April 9, 2021, Decision and Entry

As stated in the Decision and Entry, the Court conducted two in camera
reviews of Defendant Tokarz's medical records for November 27, 2017. The first in

camera review was of the medical records provided to the Court by Defendant
Tokarz's counsel and the second in camera review consisted of the medical
records that were subpoenaed and provided directly to the Court from the three
medical providers. The purpose of each review, which was requested by Plaintiffs'
counsel, was for the Court to see if information existed in the medical records
indicating whether Defendant Tokarz was within the course and scope of his
employment at the time of the November 27, 2017, accident. Assuming said
review by the Court was consistent with Defendant Tokarz's sworn deposition
testimony, Plaintiffs, who had not yet responded to the Motions to Dismiss,
represented that they would file a Stipulation of Dismissal without prejudice in
each of the three cases.
The Decision and Entry states that the Court found no information in either in

camera review indicating that Defendant Tokarz was within the course and scope
of his employment at the time of the accident. Accordingly, Plaintiffs' counsel
were ordered to show cause by April 26, 2021, as to why Case Nos. 3:20-cv-65,
3:20-cv-71 and 3:20-cv-72 should not be dismissed, with prejudice, for lack of
subject matter jurisdiction and/or for failure to state a claim.

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Plaintiffs have filed no response to the Court's Decision and Entry directing
them to show cause by April 26, 2021, as to why the cases should not be
dismissed with prejudice.

II.

Motion to Dismiss

Plaintiffs' three Complaints seek relief against the United States and/or the
USAF under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§1346(b)(1 ), for
wrongful death and injuries. The FTCA authorizes:
[C]ivil actions on claims against the United States, for money
damages ... for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.
28 U.S.C.

§

1346(b)(1 ).

The United States and the USAF move for dismissal of these Complaints
pursuant to Fed. R. 12(b)(1 ). They assert both a facial attack, with all the
allegations of the complaint taken as true, similar to the analysis undertaken in
deciding a motion to dismiss, Carrier Corp. v. Outokumpu

On: 673 F.3d 430, 440

(6th Cir.2012) (quoting Gentek Bldg. Prod., Inc. v. Sherwin-Williams Co., 491 F.3d
320, 330 (6th Cir. 2007)), and a factual attack. In a factual attack, the Court is
permitted to weigh the evidence in support of the motion Ohio Nat. Life Ins. Co. v.

United States, 922 F.2d 320, 325 (6th Cir. 1990). Defendants' Motions to Dismiss,
Doc. #13, 17 and 21, include a declaration of Timothy R. Kwast, Division Chief
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Engineer at WPAFB and supervisor of Defendant Tokarz, and a declaration of
Benjamin J. Hall, a Human Resources Specialist employed by the USAF. The Hall
declaration also includes Air Force Instruction 36-807 and a supplement to this
instruction. The instruction and supplement state, among other things, that
scheduled lunch periods at WPAFB range from 30 minutes to one hour, are
unpaid and not considered duty time. The United States and the USAF assert that
their Motions to Dismiss should be granted for three reasons: (1) the USAF must
be dismissed since under the FTCA the United States is the only proper party
Defendant; (2) the Court lacks jurisdiction under the FTCA since there is no
evidence that Defendant Tokarz was within the scope of his employment at the
time of the accident; and, (3) as to Case No. 20-cv-65, the Simpson Complaint,
allegations that the United States has liability for entrusting the vehicle that
Defendant Tokarz was driving and /or for failing to maintain or to inspect the
vehicle are unsupported by any evidence, merely conclusionary allegations and
not permitted under Ohio law.
As to Defendants' first reason in support of their Motions to Dismiss, the
law is clear that under the FTCA, the United States is the only proper defendant in
these cases. Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990) ("The FTCA
clearly provides that the United States is the only proper defendant in a suit
alleging negligence by a federal employee. Failure to name the United States as
defendant in an FTCA suit results in a fatal lack of jurisdiction.") Because both the
Upton Complaint, Case No. 3:20-cv-71, and the Marshall Complaint, Case No. 3:205

cv-72, assert a claim under the FTCA naming only the USAF as Defendant, the

Court sustains the Motions to Dismiss as to these two cases. In the Simpson
Complaint, Case No. 3:20-cv-65, both the United States and USAF are named as
Defendants. Accordingly, the Court sustains Defendants' Motion to Dismiss the
USAF as a defendant from this case.
The Motions to Dismiss also argue that Defendant Tokarz was not within
the scope of employment with the USAF at the time of the accident, since he was
driving his personal vehicle during an uncompensated lunch break and was not
on duty for his employer. In determining whether an employee is within the
course and scope of his employment, the Court applies Ohio law, the law of the
state where the accident occurred. Williams v United States, 350 U.S. 857 (1955).
Under Ohio law, and based on the Kwast declaration, the Hall declaration and the
exhibits referenced therein, the Court finds that there is no evidence that
Defendant Tokarz was within the scope of his employment at the time of the
accident. Faber v. Meta/weld, Inc., 89 Ohio App.3d 794, 797 (Ohio Ct. App. 1992)

citing Bosh v. New York Life Ins. Co., 175 Ohio St. 458 (1964) (employee driving
personal vehicle is within the scope of his employment during a traffic accident
only if (1) the employer authorized the employee to use his own vehicle to
perform the work; (2) at the time of the accident, the employee was actively doing
the work he was employed to do; and (3) the employee was subject to the
direction and control of the employer in the operation of the vehicle.) Specifically,
at the time of the accident, Defendant Tokarz was on his lunch break and "off
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duty," thus not doing the government's work and subject to its direction and
control. Accordingly, the Court sustains Defendants' Motions to Dismiss as to all
three Complaints, based on the fact that Defendant Tokarz was not within the
scope and course of his employment at the time of the accident. Finally, the
Motions to Dismiss assert that allegations for negligent entrustment for the
vehicle that Defendant Tokarz was driving and /or for the failure of the United
States to maintain or inspect said vehicle in the Simpson Complaint, Case No. 20cv-65, are mere conclusory allegations, with no facts alleged in support, and are
claims not recognized under Ohio law. Myers v. United States, 17 F.3d 890, 899
(6th Cir. 1994) (" .. . the FTCA does not create liability, it merely waives sovereign
immunity to the extent that state-law would impose liability on a "private
individual in similar circumstances. 28 U.S.C.

§

2674. "). Because Defendant

Tokarz was operating his own vehicle during his off-duty lunch break, the Court
sustains the Motion to Dismiss concern ing the allegations in the Simpson
Complaint of negligent entrustment and failure to maintain and inspect the
vehicle.

Ill.

Conclusion

For the reasons set forth in the April 9, 2021, Decision and Entry, the Court
DISMISSES Case No. 3:20-cv-65, Case No. 3:20-cv-71 and Case No. 3:20-cv-72
WITH PREJUDICE to refiling in this Court. Additionally, for the reasons stated
above, the Court SUSTAINS the Motion to Dismiss for Lack of Jurisdiction and
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Failure to State a Claim filed by the United States and the USAF, Doc. #13 in Case
No. 3:20-cv-65; Doc. #17 in Case No. 3:20-cv-71 and Doc. #21 in Case No. 3:20-cv72.

The captioned cases are hereby terminated upon the docket records of the
United States District Court for the Southern District of Ohio, Western Division at
Dayton.

Date: June 3, 2021
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

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