United States District Court, D. Arizona
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
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