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Cannon v. United States

United States District Court, E.D. North Carolina, Eastern Division

December 6, 2019

JAMES A. CANNON, JR., and NANCY G. CANNON, Plaintiffs,



         This matter comes before the court on defendant's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (DE 12). The issues raised have been fully briefed, and in this posture are ripe for ruling. For the reasons that follow, defendant's motion is granted for lack of subject matter jurisdiction.


         Plaintiffs initiated this action on April 30, 2019, alleging defendant is liable for negligently creating and maintaining certain premises under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671-80. Defendant filed the instant motion to dismiss, arguing that the FTCA does not waive sovereign immunity in the instant case because defendant hired an independent contractor, and in any event the design and construction of the premises is a discretionary function of the government. In support of its jurisdictional arguments, defendant relies upon the declaration of Leanna Radford (“Radford”), Fleet Readiness Center East (“FRCE”) Deputy Logistics and Industrial Operations Group Head, together with supporting documents. Plaintiffs responded in opposition to the motion, relying upon testimony from Ronnie A. Acha (“Acha”), director of operations at plaintiff James Cannon's jobsite; Ashraf Guirgues (“Guirgues”), plaintiff James Cannon's treating doctor; and supporting exhibits.


         The facts alleged in the complaint may be summarized as follows. Plaintiff James Cannon worked at FCRE as an aviation fuel truck operator for an aviation fuel subcontractor in Craven County, North Carolina. (Compl. ¶ 7). Plaintiff James Cannon was responsible for getting fuel trucks ready to fuel aircraft. (Id.).

         Fuel creates static electricity when moved, requiring fuel truck operators to ground the fuel truck using a grounding cable, ground connector clip, and a ground point to ensure the safety of personnel and equipment. (Id. ¶ 8). Plaintiff James Cannon clocked into work at approximately 6:50 a.m. on March 21, 2014. (Id. ¶ 9). While attending to his duties, plaintiff James Cannon attempted to ground his fuel truck by attaching a grounding cable from the fuel truck to an aircraft tie down. (Id.). Afterwards, plaintiff James Cannon drained water-contaminated fuel from his fuel truck. (Id.). While carrying the contaminated fuel in a plastic bucket to dump it, he stepped on the grounding cable with his right foot. (Id.). Plaintiff James Cannon felt a shock in his right leg, and the next thing he remembered he was laying on the ground experiencing pain in his lower right leg. (Id.).

         Plaintiff James Cannon told Acha, his supervisor, of the incident. (Id. ¶ 10). Acha and Walter Taylor (“Taylor”), the division director in charge of work done at the site, walked to the site a few hours after the reported incident. (Id. ¶¶ 10, 11). The two found there were no designated grounding rods in the area, that plaintiff James Cannon used an aircraft tie down as a grounding point, and that the grounding points used were questionable. (Id. ¶ 11). Acha and Taylor recommended that facilities inspect the area to determine the proper grounding needed. (Id.). On April 7, 2014, new static ground points were installed, tested, and certified. (Id. ¶ 12). Additional facts pertinent to the court's jurisdictional inquiry will be discussed below.


         A. Standard of Review

         A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. Such motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant raises a “facial challenge[] to standing that do[es] not dispute the jurisdictional facts alleged in the complaint, ” the court accepts “the facts of the complaint as true as [the court] would in context of a Rule 12(b)(6) challenge.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018).When a defendant challenges the factual predicate of subject matter jurisdiction, a court “is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving party in such case “must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” Id.

         B. Analysis

         1. Independent Contractor Exception

         It is hornbook law that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941). Where the United States does consent to be sued, that consent “must be ‘construed strictly in favor of the ...

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