United States District Court, M.D. Louisiana
RULING AND ORDER
W. deGRAVELLES JUDGE
matter comes before the Court on the Motion to Dismiss (Doc.
16) filed by the United States. Plaintiff Angela Arbuthnot
opposes the motion (Doc. 24). The United States has filed a
reply. (Doc. 25). The Court has carefully considered the law,
the facts in the record, and the arguments and submissions of
the parties, and, for the following reasons, grants the
Motion to Dismiss (Doc. 16).
an automobile accident case brought pursuant to the Federal
Tort Claims Act (“FTCA”). Arbuthnot alleges that
she was “traveling southbound on Highway 61 at the
intersection of Highway 965 in St. Francisville . . . when
suddenly, violently, and without warning, the vehicle
operated by Rekeya L. Blackmore . . . ran the stop sign at
the intersection on Highway 965 approaching Highway 61, and
crashed into Angela Arbuthnot's vehicle causing serious
injuries.” (Doc. 1 at 3). Arbuthnot alleges that, at
the time of the accident, Blackmore was employed by the
United States Postal Service and was “acting within the
course and scope of her employment with the United States
Postal Service transporting mail at the time of the . . .
collision.” (Doc. 1 at 3). Rekeya Blackmore's
vehicle was allegedly owned by Porsha Lane Blackmore, who is
also purportedly a federal employee. (Doc. 1 at 3).
United States files the instant motion under Federal Rule of
Civil Procedure 12(b)(1) arguing that it is entitled to
sovereign immunity. The Government urges that it has waived
immunity only with respect to torts by employees. Further,
the Government argues that, because Rekeya Blackmore and her
employer, Rena Cage Stewart, are independent contractors and
not government employees, the United States is entitled to
sovereign immunity. Most of the Government's submissions
are devoted to establishing independent contractor status.
than address the merits of the United States' immunity,
Arbuthnot instead argues that the motion is premature.
Arbuthnot urges that the question of subject matter
jurisdiction is tied to the merits, so (1) the motion to
dismiss should be treated as a motion for summary judgment,
and, (2) accordingly, the Court should defer ruling until
Arbuthnot conducts limited discovery on whether Blackmore and
Cage are in fact independent contractors. In reply, the
Government maintains that the issue of independent contractor
status is not tied to the merits. Rather, it is a threshold
issue that can be resolved on a Rule 12(b)(1) motion with its
proffered evidentiary support.
federal court must dismiss any case over which it does not
have subject matter jurisdiction. Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006). The court can order
dismissal for lack of subject matter jurisdiction based on:
“(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.” Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001). On
a Rule 12(b)(1) motion to dismiss, the plaintiff bears the
burden of proving that subject matter jurisdiction exists.
the doctrine of sovereign immunity, the United States is
immune from suit unless it has expressly consented to be
sued. United States v. Mitchell, 445 U.S. 535, 538
(1980). “The FTCA was designed primarily to remove the
sovereign immunity of the United States from suits in
tort.” Millbrook v. United States, 569 U.S.
50, 52 (2013) (internal quotation marks omitted). It provides
for exclusive jurisdiction in federal district courts
“over claims against the United States for injury or
loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of a federal employee
acting within the scope of his office or employment.”
Id. “The FTCA, however, does not extend to
acts of independent contractors.” Linkous v. United
States, 142 F.3d 271, 275 (5th Cir. 1998). If the act
over which the Arbuthnot sues was committed by an independent
contractor and not a federal employee, “then the court
must dismiss for lack of subject matter jurisdiction”
under Federal Rule of Civil Procedure 12(b)(1). Id.
determine whether an individual is a federal employee or an
independent contractor, “[t]he critical factor . . . is
the power of the federal government to control the detailed
physical performance of the individual.” Id.
Control is not the only factor, however. The Fifth Circuit
considers a number of factors set out in the Restatement
(Second) of Agency, including the individual's outside
work, if any; the type of occupation; the skill required;
whether the employer or individual provides the
instrumentalities required to do the work; the length of the
relationship; and method of payment, among others.
Id. at 276.
Government has stridently argued that Blackmore and Cage, her
employer, were independent contractors and that it did not
have an employment relationship with either. Specifically,
according to the Government, Contract Delivery Service
(“CDS”) drivers like Cage perform mail delivery
services for the Postal Service in some parts of the country
where “contracting [is] more cost-effective, fiscally
prudent, or in furtherance of promoting a more efficient
distribution of the mail within various parts of the mail
transportation network.” (Doc. 16-1 at 4). The
contractors hire their own drivers and provide their own
equipment to deliver mail on specified routes. (Id.
at 4-6). In response, Arbuthnot does not dispute these
assertions. Instead, she argues that regardless of the
express terms of the CDS contract, the Postal Service may
have treated Cage and Blackmore as employees such that it
would be liable for Blackmore's purported negligence.
(See Doc. 24 at 6-7).
argument is akin to a request for jurisdictional discovery.
District courts have broad discretion to permit
jurisdictional discovery. See, e.g., Wyatt v.
Kaplan, 686 F.2d 276, 283 (5th Cir. 1982). “As the
party opposing dismissal and requesting discovery, the
plaintiff bear[s] the burden of demonstrating the necessity
of discovery.” Davila v. United States, 713
F.3d 248, 264 (5th Cir. 2013). Arbuthnot is not entitled to
discovery “if the record shows that the requested
discovery is not likely to produce the facts needed to
withstand a Rule 12(b)(1) motion.” Freeman v.
United States, 556 F.3d 326, 342 (5th Cir. 2009). And
the Court notes that the plaintiff's burden is higher
where, as here, “the party seeking discovery is
attempting to disprove the applicability of an
immunity-derived bar to suit because immunity is intended to
shield the defendant from the burdens of defending the suit,
including the burdens of discovery.” Id.
extensive discussion on this point is warranted, as
Arbuthnot's counsel conceded during a recent telephonic
status conference that she could not meet her burden to
demonstrate her entitlement to jurisdictional discovery.
Counsel anticipated that any deposition testimony by Cage or
Blackmore would be insufficient to establish an employment
relationship with the Postal Service. Based on the
concessions made by counsel, the Court ...