Harper v. United States Postal Service et al

Filing 36

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT HILER BUFFALO, LLC'S 27 MOTION FOR LEAVE TO AMEND ANSWER TO ASSERT CROSSCLAIM AGAINST UNITED STATES OF AMERICA. Signed by Senior Judge Frederick P. Stamp, Jr. on 5/22/18. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DEBBIE HARPER,
Plaintiff,
v.

Civil Action No. 5:17CV12
(STAMP)

UNITED STATES POSTAL SERVICE
and UNITED STATES OF AMERICA,
Defendants,
and
DEBORAH L. HARPER,
Plaintiff,
v.

Civil Action No. 5:17CV156
(STAMP)

HILER BUFFALO, LLC
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT HILER BUFFALO, LLC’S
MOTION FOR LEAVE TO AMEND ANSWER TO ASSERT
CROSSCLAIM AGAINST UNITED STATES OF AMERICA
This is a Federal Tort Claims Act (“FTCA”) case arising out of
a fall at the United States Post Office in Chester, West Virginia
(“the Post Office”).

The plaintiff, Deborah L. Harper, filed this

action under the FTCA against the United States of America and the
United States Postal Service.

Plaintiff originally filed her

complaint against Hiler Buffalo, LLC (“Hiler Buffalo”) on or about
August 29, 2016 in the Circuit Court of Hancock County, West
Virginia in Civil Action No. 16-C-101.

After discussion and

agreement by the plaintiff and defendant Hiler Buffalo, a notice of
removal and stipulation regarding removal were filed to remove the

state court matter to the United States District Court for the
Northern District of West Virginia.

Additionally, a joint motion

to consolidate the removed matter with the matter pending against
the United States (Civil Action No. 5:17CV156) was filed.

This

Court entered and order granting the joint motion to consolidate.
ECF No. 20.
Now pending before the Court is defendant Hiler Buffalo’s
motion for leave to amend its answer to assert a crossclaim against
defendant United States of America pursuant to Federal Rule of
Civil Procedure Rule 15 (ECF No. 27).

Defendant Hiler Buffalo’s

motion is fully briefed and ripe for decision.

For the following

reasons, defendant Hiler Buffalo’s motion (ECF No. 27) is denied.
I.

Background

On April 5, 2018, defendant Hiler Buffalo filed a motion for
leave to amend its answer to assert a crossclaim against defendant
United

States

of

Procedure Rule 15.

America

pursuant

ECF No. 27.

to

Federal

Rule

of

Civil

In support, Hiler Buffalo asserts

that no improper motive is asserted by defendant Hiler Buffalo as
“[t]he facts of this case demonstrate that the United States of
America, as the lessee and possessor of the real property where
plaintiff’s alleged fall occurred, may be the party responsible for
any defect, knowledge of any defect or report of any defect.”
at 2.

Id.

Additionally, Hiler Buffalo asserts that “the United States

of America may be the party liable for any injuries asserted by
plaintiff.”

Id.

Defendant

asserts

2

that

“[t]he

cross-claim

proffered pursuant to this Motion is an attempt to resolve all
issues of fact and law in a single proceeding and avoid unnecessary
and duplicitous litigation.

If it is determined that the United

States of America is the liable party, Hiler Buffalo, LLC will be
entitled

to

express

and

implied

indemnification

and/or

contribution.” Id. at 3. Hiler Buffalo states that the failure to
address all of these issues in a single litigation will result in
the filing of an additional action by Hiler Buffalo, LLC to
preserve

and

contribution.

protect
Id.

its

rights

of

indemnification

and

Hiler Buffalo argues that there is no undue

delay or prejudice, this addition of a crossclaim does not alter
the facts or course of this litigation, this motion is filed timely
under the Court’s scheduling order, and that the United States will
not suffer any prejudice as there is no additional discovery or
litigation

activity

necessary

to

indemnification and contribution.

Id.

address

the

claims

for

Hiler Buffalo attached a

proposed order and proposed amended answer to its motion.
Defendant

United

States

of

America

filed

a

response

in

opposition (ECF No. 28) and asserts that Hiler Buffalo’s motion is
“untimely” as it was filed two days after the deadline set by this
Court.

ECF No. 28 at 2.

The United States also asserts that Hiler

Buffalo’s amended answer “would be futile for two reasons: the
claim is not yet ripe, and, even more importantly, this Court lacks
subject matter jurisdiction to hear Hiler Buffalo LLC’s cross
claim.”

ECF No. 28 at 3.

The United States asserts that the

3

defendant’s proposed crossclaim is not ripe for adjudication,
stating that “Hiler Buffalo’s apparent sole claim against the
United States is contingent upon a future event that may never
occur.”

Id.

Moreover, the United States asserts that “[e]ven if

Hiler Buffalo LLC’s cross-claim were ripe, this Court lacks subject
matter jurisdiction to hear that claim” in that “Hiler Buffalo,
LLC’s cross-claim is based upon any dispute arising under or
relating to the lease between the United States Postal Service and
Hiler Buffalo, LLC, that contract is subject to the Contract
Disputes Act of 1978 (“CDA”), 41 U.S.C. § 7101 et seq.”

Id. at 5.

The United States asserts that “the CDA provides the exclusive
method for resolution of any dispute relating to a government
contract and district courts possess no jurisdiction in these
cases. 28 U.S.C. § 1346(a)(2).” Id.

Therefore, the United States

asserts that “Hiler Buffalo LLC’s cross-claim must be dismissed for
lack of subject matter jurisdiction, as disputes arising under and
relating to the lease brought by a government contractor are in the
exclusive jurisdiction of the Board of Contract Appeals or the
United States Court of Federal Claims, and this Court lacks
jurisdiction to hear this claim.”

Id. at 6.

Lastly, the United

States argues that to the extent Hiler Buffalo’s crossclaim alleges
that the United States should be liable for the negligence of Hiler
Buffalo, the United States has not waived sovereign immunity for
acts of an independent contractor.

4

Id.

Hiler Buffalo filed a reply (ECF No. 29) to the response in
opposition and asserts that its motion was timely filed.

In

support, Hiler Buffalo explains that as a result the motion being
filed under the original federal case number for the claims of the
plaintiff

against

Hiler

Buffalo,

LLC

(Civil

Action

No.

5:17-CV-00156), on April 5, 2018 such filing was placed in the
consolidated case and forwarded to the co-defendant the United
States. ECF No. 29 at 2. Further, Hiler Buffalo argues that, under
Rule 13, “[t]he adjudication of a cross-claim asserting claims for
indemnification and contribution should be decided in the case in
chief to preserve judicial resources and economy” in that “[i]n the
present

matter,

contribution

the

are

claims

based

on

asserted
and

for

arise

indemnification

under

the

same

and

facts,

occurrences, legal theories and circumstances as set forth in
plaintiff’s complaint.”

Id. at 2-3.

Hiler Buffalo also argues

that the crossclaim proffered is based on state tort law concepts
of joint and several liability, indemnification and contribution
and therefore, the United States of America’s argument that the
crossclaim of Hiler Buffalo is a contract claim and therefore
should be adjudicated in Agency Board of Contract Appeals or the
Federal Court of Claims is inaccurate.

Id. at 5.

Hiler Buffalo

maintains that it has asserted in its proposed crossclaim, that the
United States may be liable to it for damages assessed against
Hiler

Buffalo

negligence

of

that
the

were
United

occasioned
States,

5

and

or

attributable

that

such

a

to

the

claim

is

permissible under West Virginia law as it has not sought to argue
any contract issue or claim.

Id. at 7.

Hiler Buffalo states that

since this is a negligence based tort claim and crossclaim, the
Federal

Tort

Claims

Act

applies

and

this

Court

has

proper

jurisdiction under 28 U.S.C.A. § 1346, and therefore, the Contract
Disputes Act is inapplicable and the cross-claims are properly
before this Court.

Id.

Lastly, Hiler Buffalo states that it

“seeks to protect its interest and to preserve its defenses to the
claims of the plaintiff” and that to the extent that Hiler Buffalo
is assessed liability based on the negligence of the United States,
the United States should be held accountable for such negligence
and Hiler Buffalo is entitled to indemnification and contribution
for any apportionment or percentage of liability attributable to
the United States.

Id. at 7.
II.

Applicable Law

Rule 15(a) of the Federal Rules of Civil Procedure grants the
district

court

broad

discretion

concerning

motions

to

amend

pleadings, and leave should be granted absent some reason “such as
undue delay, bad faith, or dilatory motive on the part of the
movant,

repeated

failure

to

cure

deficiencies

by

amendments

previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment or futility of the amendment.” Foman
v. Davis, 371 U.S. 178, 182 (1962); see also Ward Elec. Serv. v.
First Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987); Gladhill
v. Gen. Motors Corp., 743 F.2d 1049, 1052 (4th Cir. 1984).

6

The United States Court of Appeals for the Fourth Circuit has
interpreted Rule 15(a) to provide that “leave to amend a pleading
should be denied only when the amendment would be prejudicial to
the opposing party, there has been bad faith on the part of the
moving party, or the amendment would have been futile.” Laber v.
Harvey, 438 F.3d 404, 426–27 (4th Cir. 2006); see also Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (citing Foman
v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).
An amendment is futile if the amended claim would fail to survive
a motion to dismiss pursuant to Federal Rule of Civil Procedure.
Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995)(citing
Glick v. Koenig, 766 F.2d 265, 268–69 (7th Cir. 1985) (if amended
complaint could not withstand motion to dismiss, motion to amend
should be denied as futile)).
III.
This

Court

has

reviewed

Discussion
defendant

Hiler

Buffalo’s

fully

briefed motion for leave to amend its answer to assert a crossclaim
against defendant United States of America (ECF No. 27) and the
arguments asserted by the parties.

For the reasons set for below,

the motion is denied.
The United States raises two arguments in opposition to Hiler
Buffalo’s motion: (1) the motion was untimely filed; and (2) the
amendment is futile as the claim is not yet ripe and this Court
lacks

subject

matter

jurisdiction

7

to

hear

Hiler

Buffalo’s

crossclaim.

ECF No. 28.

These arguments are addressed, in turn,

below.
First, this Court finds that Hiler Buffalo’s motion for leave
to amend its answer to assert a crossclaim was timely filed.
Previously, this Court approved the parties’ jointly proposed order
(ECF No. 32-1) and entered an amended scheduling order in this
civil action (ECF No. 33).

The operable scheduling order in this

civil action states that “[m]otions to join additional parties,
motions to amend pleadings, and any crossclaim or counterclaim, as
well as any similar motions, shall be filed on or before July 3,
2018.”

ECF No. 33 at 4-5 (emphasis in original).

Thus, this Court

finds that the motion was timely filed.
Second, this Court finds that Hiler Buffalo’s proposed amended
answer would be futile as this Court does not have subject matter
jurisdiction over the proposed crossclaim.

Although this Court

cannot decide a claim that is not ripe for adjudication, this Court
does not find that “ripeness” is an issue.
asserted

claims

indemnification,

for
and

express

contribution

Hiler Buffalo’s

indemnification,
are

“pleadable,

implied
litigable

claim[s]” which may be tendered, under Federal Rule of Civil
Procedure Rule 13(g), “in a pending action in which the primary
liability is being adjudicated.”

Goldring v. Ashland Oil & Ref.

Co., 59 F.R.D. 487, 490 (N.D. W. Va. 1973) (citing Atlantic
Aviation Corp. v. Estate of Costas, 332 F. Supp. 1002, 1007
(E.D.N.Y. 1971)).

8

However, this Court does find that defendant Hiler Buffalo’s
proposed amended answer is futile in that this Court does not have
subject matter jurisdiction over the proposed crossclaim to be
asserted against the United States.
the

Contract

Disputes

Act1

As the United States asserts,

provides

the

exclusive

method

for

resolution of any dispute relating to a government contract and
district courts possess no jurisdiction in these cases.
§ 1346(a)(2).2

28 U.S.C.

This Court notes that the lease agreement (ECF No.

28-1) between Hiler Buffalo and the United States specifically
provides that “[t]his Contract is subject to the Contract Disputes
Act of 1978” and that “all disputes arising under or relating to
this contract must be resolved under this clause.” ECF No. 28-1 at
7.

“The Contract Disputes Act [also “CDA”] is a comprehensive

statutory scheme for resolving contractual conflicts between the
United States and government contractors.”

United States v. J. &

E. Salvage Co., 55 F.3d 985, 987 (4th Cir. 1995).
resolution

of

defendant

Hiler

Buffalo’s

proposed

Thus, the
asserted

crossclaim must be adjudicated in Agency Board of Contract Appeals
or the Federal Court of Claims.

1

41 U.S.C. §§ 7101–7109.

2

[T]he district courts shall not have jurisdiction of any
civil action or claim against the United States founded upon any
express or implied contract with the United States or for
liquidated or unliquidated damages in cases not sounding in tort
which are subject to sections 8(g)(1) and 10(a)(1) of the Contract
Disputes Act of 1978.
9

Hiler Buffalo argues, however, that it “has not asserted a
contract claim” but rather, “seeks to protect its interest as an
alleged joint tortfeasor in this litigation.”

ECF No. 29 at 6.

In

considering this argument, this Court finds that the instant case
falls squarely within Boggs v. Cintas Corp. No. 2, 2012 WL 1189915
(S.D. W. Va. Apr. 9, 2012).

In Boggs, the plaintiff suffered

injuries resulting from a trip and fall caused by a floor mat at
the United States Post Office in Clendenin, West Virginia.
1.

Id. at

The floor mat was delivered to the post office by Cintas, the

company that provided floor mats to the Clendenin Post Office
pursuant to a contract with the United States Postal Service.

Id.

In Boggs, the United States contended that “the court must dismiss
the third-party complaint inasmuch as Cintas’ third-party claims of
contribution and indemnity are subject to the Contract Disputes Act
of 1978 [] and thus confined to the exclusive jurisdiction of the
Agency Board of Contract Appeals or United States Court of Federal
Claims.”

Id. at 5.

The Court in Boggs considered whether, by

agreeing to the contract containing express language subjecting the
contract

to

the

Contract

Disputes

Act,

the

defendant

Cintas

submitted to the exclusive jurisdiction of the Contract Disputes
Act for “all disputes arising under or relating to” the contract.
Id. at 6.

The Court ultimately found that Cintas’ third-party

claims constituted disputes “arising under or related to” the
underlying contract, and that such claims are subject to the
Contract Disputes Act and the exclusive jurisdiction of the Agency

10

Board of Contract Appeals or the United States Court of Federal
Claims.

Id.

Here, this Court finds the facts of Boggs to be applicable and
the Court’s reasoning to be persuasive.

This Court finds that

Hiler Buffalo’s proposed crossclaim against the United States is
premised upon claims which arise under and are related to the
underlying contract, and that such claims are subject to the
Contract Disputes Act and the exclusive jurisdiction of the Agency
Board of Contract Appeals or the United States Court of Federal
Claims.
Lastly, this Court notes that the FTCA, by its own terms,
applies only to the acts of federal employees and explicitly
excludes the possibility of federal government liability for the
acts of independent government contractors, and that the United
States has not waived sovereign immunity.

See Berkman v. United

States, 957 F.2d 108, 111 (4th Cir. 1992).
IV.

Conclusion

For the reasons set forth above, defendant Hiler Buffalo’s
motion for leave to amend its answer to assert a crossclaim against
defendant the United States of America (ECF No. 27) is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this order to
counsel of record herein.

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DATED:

May 22, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

12