United States District Court, E.D. North Carolina, Eastern Division
JAMES A. CANNON, JR., and NANCY G. CANNON, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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.
OF THE CASE
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.
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
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.).
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
Standard of Review
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.
Independent Contractor Exception
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