United States District Court, D. Arizona
REPORT AND RECOMMENDATION
D. THOMAS FERRARO, Magistrate Judge.
Pending before the Court are Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Plaintiff's Motion for Leave to Amend Complaint. (Docs. 21, 26.) Defendant responded to the request to amend and replied on its motion to dismiss; Plaintiff responded to the motion to dismiss. (Docs. 27, 28, 31.) Pursuant to the Rules of Practice in this Court, the matter was assigned to Magistrate Judge Ferraro for a report and recommendation. The Magistrate recommends the District Court, after its independent review of the record, enter an order granting Defendant's motion to dismiss for lack of subject matter jurisdiction and granting Plaintiff's request to amend.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Patricia Foster sued the United States under the Federal Tort Claims Act (FTCA). Foster alleges in her Complaint that, on November 19, 2011, George Frye recklessly and negligently operated a motor vehicle, which injured Foster who was riding as a passenger. She alleges that Frye was acting under the direction and supervision of the Veterans Administration (VA) at the time, and that the United States is liable for the actions of Frye.
Defendant argues that the Court lacks subject matter jurisdiction because Frye was not an employee of the United States at the time of the accident. In response, Plaintiff seeks leave to amend her complaint. The Court will examine its jurisdiction over the original complaint as raised by the motion to dismiss and then evaluate the proposed amendment.
The United States can only be sued to the extent it has expressly waived its sovereign immunity. Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1117 (9th Cir. 2003). The FTCA provides jurisdiction in the district courts for injuries caused by a government employee "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). In resolving a motion based on subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), the Court may consider evidentiary submissions outside the pleadings. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).
Motion to Dismiss
According to the evidence submitted by Defendant, from April 2011 to April 2012, Frye was participating in the Compensated Work Therapy (CWT) program at the Southern Arizona VA Health Care System. (Doc. 21, Ex. 1.) CWT "is a vocational rehabilitation program. It contracts with private industry and the public sector to provide its participants with therapeutic and rehabilitative work at VA health care facilities." ( Id. ) The Congressional authorization for the CWT program provides that the participants are not employees of the United States for any purpose. 38 U.S.C. § 1718(a).
Plaintiff does not dispute Defendant's evidence. Plaintiff merely contends she had requested depositions that were not completed. (Doc. 26 at 2.) The parties agreed at the Rule 16 Conference to narrow discovery to subject matter jurisdiction for the first two and a half months. (Doc. 14.) The Court extended this deadline for an additional two months, at Plaintiff's request. (Docs. 24, 25.) Defendant documented its willingness to conduct depositions limited to subject matter jurisdiction, however, Plaintiff's counsel failed to schedule the depositions. (Doc. 28, Exs. 2-6.) Plaintiff requested no discovery assistance from the Court. Because Plaintiff had the opportunity to obtain discovery on subject matter jurisdiction, her failure to submit any evidence is not a defense to Defendant's submission.
The original complaint simply alleged Defendant was liable for the actions of Frye, apparently based on a respondeat superior theory. The uncontested evidence shows Frye was not an employee of the United States at the time of his alleged negligent actions. Therefore, this Court does not have jurisdiction over the original complaint under the FTCA and the motion to dismiss should be granted. See Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992) (plaintiff must point to "unequivocal waiver of immunity") (quoting Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)).
Motion to Amend
Plaintiff argues that, even if Frye was not a federal employee, the United States is liable based upon negligent entrustment and negligent supervision/training theories. Accordingly, Plaintiff requests leave to amend her complaint to assert three claims. (Doc. 26-2.) The United States responded that the Court lacks subject matter jurisdiction over the proposed claims, therefore, the motion to amend should be denied as futile.
Motions to amend pleadings to add claims are governed by Federal Rule of Civil Procedure 15(a). While the decision to grant or deny a motion to amend is within the discretion of the district court, "Rule 15(a) declares that leave to amend shall be freely given when justice so requires.'" Foman v. Davis, 371 U.S. 178, 182 (1962). In exercising its discretion, a court must be guided by the underlying purpose of Rule 15: to facilitate decision on the merits rather than on the pleadings or technicalities. Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). Thus, Rule 15's policy of favoring amendments to pleadings should be applied with "extreme liberality." Id. The United States Supreme Court has established that motions to amend should be granted unless the district court determines that there has been a showing of: (1) undue delay; (2) bad faith or ...