BURKE et al v. VEOLIA ENERGY COMPANY et al

Filing 18

ORDER, THAT THE DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS IS GRANTED. PLAINTIFFS' COMPLAINT AGAINST THE UNITED STATES IS DISMISSED. IT IS FURTHER ORDERED THAT THE RULE 16 CONFERENCE IS CONTINUED TO 2/21/2017 AT 1:00 PM IN COURTROOM 11A. ETC.. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 2/1/2017. 2/1/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BETZAIDA BURKE, et al.
v.
VEOLIA ENERGY COMPANY, et al.

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CIVIL ACTION
No. 16-5559

ORDER
AND NOW, this 1st day of February, 2017, upon consideration of Defendant the United
States of America’s Motion to Dismiss Plaintiffs’ Complaint, Plaintiffs Betzaida and Joseph
Burke’s opposition thereto, and the United States’ reply, and for the reasons set forth in the
accompanying Memorandum, it is ORDERED the Motion (Document 10) is GRANTED.
Plaintiffs’ Complaint against the United States is DISMISSED for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The dismissal is without
prejudice as to Plaintiff Betzaida Burke and with prejudice as to Plaintiff Joseph Burke.
It is further ORDERED the Rule 16 conference scheduled for February 2, 2017, is
CONTINUED to February 21, 2017, at 1:00 p.m. in Courtroom 11A. Counsel for all parties are
required to complete Rule 26(a) disclosures, to confer pursuant to Rule 26(f), and to complete
and submit to the Court the Joint Rule 16 Conference Information Report included in Judge
Sánchez’s procedures at least 24 hours prior to the Rule 16 Conference. The parties shall raise
any objections to the continued existence of federal subject matter jurisdiction in this case in
advance of the Rule 16 conference.1

1

Although Plaintiff’s Complaint against the United States is dismissed, the United States has not
moved to dismiss Defendant Veolia Energy Philadelphia, Inc.’s cross-claims for contribution and
indemnification against it, see Veolia’s Answer With Affirmative Defenses and Crossclaims, at
21, and those cross-claims appear to provide a basis for federal subject matter jurisdiction over
the balance of the case, see Tomlin v. Pease, 2014 WL 1340624, at *6 (E.D. Pa. Apr. 4, 2014)
(denying the United States’ motion to dismiss FTCA cross-claims following the dismissal of the
plaintiff’s FTCA claims against the United States for lack of subject matter jurisdiction and

BY THE COURT:

/s/ Juan R. Sánchez
Juan R. Sánchez, J.

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holding the FTCA cross-claims provided an independent basis for the exercise of subject matter
jurisdiction); Rodgers v. Se. Pa. Transp. Co., No. 06-1640, 2006 WL 2924562, at *1-2 (E.D. Pa.
Oct. 5, 2006) (same).
2