Lentz v. United States Air Force

          ORDER

          Honorable John J. Tuchi United States District Judge.

         At issue is Defendant United States Air Force's (USAF) Rule 12(b)(1) Motion to Dismiss (Doc. 29, MTD), to which pro se Plaintiff Gary Lentz has filed a Response (Doc. 30, Resp.), and the USAF has filed a Reply (Doc. 31, Reply). No party requested oral argument on the Motion and the Court finds it appropriate for resolution without such argument. See LRCiv 7.2(f). For the reasons set forth below, the Court will grant the USAF's Motion and dismiss Plaintiff's claim with prejudice.

         I. BACKGROUND

         In this lawsuit, Plaintiff brings a property damage claim against the USAF pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. On July 29, 2016, an unexpected storm known as a “microburst” struck the area near Gila Bend Air Force Auxiliary Field (GBAFAF) in Maricopa County, Arizona. (Compl. ¶ 3; Resp. at 3.) The storm produced wind speeds of up to nearly 90 mph, the highest wind gust speeds encountered at GBAFAF in a seven month period. (MTD Ex. 3 ¶¶ 7-8.) The storm's high wind speeds resulted in significant damage to the roof of GBAFAF's main lodging/lobby, also known as Building 4300. (MTD Ex. 2 ¶ 15.) A portion of Building 4300's tarred asphalt roof landed northeast of the building in a tennis court and parking lot area. (MTD Ex. 1 ¶ 36.)

         At the time of the storm, Plaintiff's recreational vehicle (RV) was parked approximately 500 feet to the northwest of Building 4300 at a family campground known as “Fam Camp.” (Compl. ¶ 1; MTD at 3.) Plaintiff submitted a written claim for damages to the USAF approximately two weeks after the storm, alleging that flying debris from Building 4300 had caused damage to his RV. (Compl. ¶¶ 3-5.) The USAF rejected Plaintiff's claim for damages on January 11, 2017, approximately five months later. (Compl. ¶ 6.) Plaintiff now alleges that the USAF's negligent maintenance of Building 4300 caused damages to his RV and seeks damages in the amount of $48, 000 for storage fees, meals and incidental expenses, hotel and lodging, salvage value of the RV, and upgrade extras to the RV. (Compl. ¶ 14.)

         In its Motion to Dismiss, the USAF argues that Plaintiff's claim is barred by the independent contractor exception to the FTCA because contractor Tunista Services, LLC (Tunista) maintained and was independently responsible for the roofs at GBAFAF. (MTD at 4.)

         II. LEGAL STANDARD

         “A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may attack either the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction, or the existence of subject matter jurisdiction in fact.” Renteria v. United States, 452 F.Supp.2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). “Where the jurisdictional issue is separable from the merits of the case, the [court] may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary.” Thornhill, 594 F.2d at 733; see also Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (“With a 12(b)(1) motion, a court may weigh the evidence to determine whether it has jurisdiction.”).

         The burden of proof is on the party asserting jurisdiction to show that the court has subject matter jurisdiction. See Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). However, in FTCA cases, the “United States bears the burden of proving the applicability of one of the exceptions to the FTCA's general waiver of immunity.” Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992). Here, the USAF has filed declarations and other evidence with its Motion to Dismiss, thus mounting a factual attack on the existence of subject matter jurisdiction in this case. In response, Plaintiff has neglected to file any additional evidence, affidavits, or declarations to support his position. Plaintiff does not dispute the supplemental declarations and exhibits filed by the USAF. In evaluating the USAF's factual Rule 12(b)(1) challenge, the Court will consider the evidence submitted beyond the Complaint.

         III. ANALYSIS

         A. The USAF's Contract with Tunista

         The USAF's contract with Tunista became effective on February 9, 2015, and extends into the year 2020. (MTD Attach. A, LENTZ-USAF-000161.) As part of its contract with the USAF, Tunista was required to provide Civil Engineering services, including roof maintenance and repair, to GBAFAF. (MTD Ex. 1, Attach. A, LENTZ-USAF-000163.) These services were required to be performed “in accordance with the performance works statement.” (MTD Ex. 1, Attach. A, LENTZ-USAF-000163.) The performance works statement (PWS) states that “[t]he quality of the work performed under this contract is the responsibility of the contractor, ” and that Tunista must “provide and maintain a quality control program” as well as “perform all required inspections.” (MTD Ex. 1, Attach. B, LENTZ-USAF-000581, 696.) Tunista must also provide a site manager “who shall be responsible for the performance of all work.” (MTD Ex. 1, Attach. B, LENTZ-USAF-000583.) In his declaration, Timothy Sizemore avers that Richard Carr was Tunista's site manager during 2016 and was responsible for overseeing all work performed under the contract. (MTD Ex. 1 ¶ 16.) Moreover, in addition to the maintenance of GBAFAF, Tunista is responsible for maintaining Fam Camp and its utilities, parking spaces, improved grounds, and road and fire suppression systems. (MTD Ex. 1, Attach. B, LENTZ-USAF-000610.)

         The PWS projected that 220 man hours per year would be necessary for Tunista's maintenance and repair of the roofs, trim, and gutters at GBAFAF. (MTD Ex. 1, Attach. B, LENTZ-USAF-000721.) Specifically, the PWS stated that “the contractor shall install, repair, [and] replace components and maintain built up roofs, felts, bitumen, aggregate, stops, flashing, and insulation. [The contractor shall] [r]epair pitched roofs, shingles, roll roofs, felt and flashing, drip edges, gutters and down spouts[, ] [and] [r]epair metal roofs, roof beams, purling, sag rods and brace rods IAW AFI 32-1051. The contractor's repairs shall match the rest of the roof.” (MTD Ex. 1, Attach. B, LENTZ-USAF-000605.)

         In addition to the PWS, Tunista was required to adhere to and follow the Department of Defense's (DoD) United Facilities Criteria (UFC). (MTD Ex. 1 ¶ 13.) The UFC “provides planning, design, construction, sustainment, restoration, and modernization criteria, and applies to the Military Departments, the Defense Agencies, and the DoD Field Activities” and is “used for all DoD projects and work for other customers where appropriate.” (MTD Ex. 1, Attach. C, LENTZ-USAF-000237.) UFC Series 3-110-04 specifically applies to and “unifies the roofing maintenance and repair criteria for the DoD” and states that “[f]acility roof maintenance requirements and standards shall be performed by personnel responsible for this task.” (MTD Ex. 1, Attach. C, LENTZ-USAF-000238, 000241). Section 1-4.4 defines maintenance as “proactive efforts expended on a recurrent, periodic schedule that are necessary to preserve the condition of the ...