United States District Court, D. Alaska
ORDER MOTION FOR PARTIAL SUMMARY JUDGMENT
H.
Russel Holland, United States District Judge.
Defendant
moves for partial summary judgment and seeks the dismissal of
plaintiff's personal injury claims for lack of subject
matter jurisdiction.[1] This motion is opposed.[2] Oral argument was
not requested and is not deemed necessary.
Facts
Plaintiff
is Andrew Eichorst. Defendant is the United States of
America.
In May
2015, plaintiff was injured in a motor vehicle accident when
his vehicle was struck by Joshua Moore, who was a member of
the United States Air Force and who was on duty at the time
of the accident. Plaintiff testified that at the time of the
accident he was employed by Pratt and Whitney as an engine
mechanic, working on F119 engines which are used in F22
fighter jets.[3] Plaintiff further testified that when the
accident occurred, he was on his way to “an engine tear
down class which was held on JBER” and that he was
driving his own vehicle.[4] Plaintiff testified that he received
worker's compensation benefits after the
accident.[5]
Plaintiff
commenced this Federal Tort Claims Act (FTCA) case on May 2,
2017. Defendant now moves to dismiss plaintiff's personal
injury claims on the ground that the court lacks subject
matter jurisdiction.[6]
Discussion
Although
defendant has titled the instant motion as a motion for
partial summary judgment, the motion is in fact a Rule
12(b)(1) motion and is treated as such by the court. “A
party may move at any time to dismiss a complaint for lack of
subject matter jurisdiction.” Rubenstein v.
Smith, 132 F.Supp.3d 1201, 1203 (C.D. Cal. 2015) (citing
Fed.R.Civ.P. 12(b)(1), (h)(3)). “A Rule 12(b)(1)
jurisdictional attack may be facial or factual.”
Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004). “In a facial attack, the
challenger asserts that the allegations contained in a
complaint are insufficient on their face to invoke federal
jurisdiction. By contrast, in a factual attack, the
challenger disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
jurisdiction.” Id. Here, defendant is making a
factual attack.
“In
resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint without
converting the motion to dismiss into a motion for summary
judgment.” Id. The court “is not
restricted to the face of the pleadings, but may review any
evidence, such as affidavits and testimony, to resolve
factual disputes concerning the existence of
jurisdiction.” McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988). However, “a
‘[j]urisdictional finding of genuinely disputed facts
is inappropriate when the jurisdictional issue and
substantive issues are so intertwined that the question of
jurisdiction is dependent on the resolution of factual issues
going to the merits' of an action.” Safe Air
for Everyone, 373 F.3d at 1039 (quoting Sun Valley
Gas, Inc. v. Ernst Enters., 711 F.2d 138, 139 (9th Cir.
1983)). Here, the jurisdictional issue is not intertwined
with the substantive issues; so, the court may resolve any
factual disputes pertaining to jurisdiction.
As an
initial matter, plaintiff argues that the instant motion must
be denied because defendant improperly relied on his
deposition testimony. This argument fails. The court
“may review any evidence” in deciding a
Rule 12(b)(1) motion. McCarthy, 850 F.2d at 560
(emphasis added).
Turning
then to the substance of the instant motion, defendant argues
that the court lacks subject matter jurisdiction of
plaintiff's personal injury claims. “As a
sovereign, the United States is immune from suit except to
the extent that it has unequivocally consented to litigation
against itself.” LaBarge v. Mariposa County,
798 F.2d 364, 366 (9th Cir. 1986). The FTCA “acts as a
waiver of the United States' traditional sovereign
immunity for certain torts committed by its employees.”
Delta Savings Bank v. United States, 265 F.3d 1017,
1024 (9th Cir. 2001). “‘The United States shall
be liable . . . in the same manner and to the same extent as
a private individual under like circumstances. . . .”
Id. (quoting 28 U.S.C. § 2674).
“Furthermore, ‘the district courts . . . shall
have exclusive jurisdiction of civil actions on claims
against the United States, . . . if a private person[] would
be liable to the claimant in accordance with the law of the
place.'” Id. (quoting 28 U.S.C. §
1346(b)). But, if a private person would be immune from suit,
then the United States is also immune from suit.
LaBarge, 798 F.2d at 369.
Under
Alaska law, “a claim under the Alaska Workers'
Compensation Act is the exclusive remedy for an
employee's injury.” Rosales v. Icicle Seafoods,
Inc., 316 P.3d 580, 584 (Alaska 2013). A project owner
is also covered by the exclusive liability provisions of the
Alaska Workers' Compensation Act. Anderson v. Alyeska
Pipeline Service Co., 234 P.3d 1282, 1288 (Alaska 2010).
“‘[P]roject owner' means a person who, in the
course of the person's business, engages the services of
a contractor and who enjoys the beneficial use of the
work[.]” AS 23.30.045(f)(2). A
“‘contractor' means a person who undertakes
by contract performance of certain work for another but does
not include a vendor whose primary business is the sale or
leasing of tools, equipment, other goods, or
property[.]” AS 23.30.045(f)(1).
Defendant
argues that it is a project owner under the facts of this
case and thus immune from suit. Defendant contends that it
contracted with Pratt and Whitney to maintain the Pratt and
Whitney F119 engines installed on the F22 fighter jets at
JBER. Defendant argues that it “engage[d] the services
of a contractor, ” namely Pratt and Whitney, and that
it enjoyed the “beneficial use of the work”
performed by Pratt and Whitney. AS 23.30.045(f)(2).
The
problem with this argument, according to plaintiff, is that
there is absolutely no evidence that defendant had a contract
with Pratt and Whitney. Plaintiff acknowledges that it is
undisputed that he worked on F119 engines which were
installed in F22 fighter jets, but he argues that there is no
evidence before the court as to Pratt and Whitney's
relationship with defendant. Plaintiff suggests that it is
possible that Pratt and Whitney was a vendor, not a
contractor, which would mean that defendant could not be a
project owner. AS 23.30.045(f)(1) expressly excludes “a
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