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Bass v. United States

United States District Court, W.D. Missouri, Western Division

December 17, 2019

QUINN BASS, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          ROSEANN A. KETCHMARK, UNITED STATES DISTRICT COURT JUDGE

         Before the Court is Defendant United States of America (the “Government”)'s Motion to Dismiss for Lack of Subject Matter Jurisdiction. (Doc. 17.) The Motion is fully briefed. (Docs. 18, 27, 33.) After careful consideration, the Motion is GRANTED, and the case is DISMISSED.

         Background

         Plaintiffs brings this action pursuant to Missouri's wrongful death statute, Mo. Rev. Stat. § 537.080, 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680. The case arises out of an explosion that occurred at Lake City Ammunition Plant (“Lake City”) on April 11, 2017, which killed Lawrence C. Bass, Jr. (“Bass”).

         Lake City is a Government Owned-Contractor Operated (“GOCO”) installation located in Independence, Missouri. On September 28, 2012, the Government awarded Orbital Alliance Technologies (“Orbital ATK”) a production contract (Doc. 18-6) to produce small caliber rifle ammunition and a facilities contract (Doc. 18-7) for the operation, maintenance, and modernization of Lake City. (Docs. 18-4, ¶¶ 8-9.) Both the production contract and the facilities contract (collectively, the “Contract”), were in effect on April 11, 2017. Orbital ATK hired its own employees, including Bass. In addition to Orbital ATK's employees, one Active Duty Army Lieutenant Colonel and 27 civilian employees of the Army also worked at Lake City. (Doc. 18-2.) The Contract provided that Orbital ATK would be responsible for the safety of employees at Lake City and that the presence of Government employees and/or safety personnel would not affect Orbital ATK's responsibility for safety. (Docs. 18-6, 18-7.) Finally, within the Contract, the Government reserved the right and power to inspect Orbital ATK's performance and cease Orbital ATK work if necessary. (Doc. 18-6, p. 162).

         On April 11, 2017, Bass was scheduled to work in building #85, bay # 901. (Doc. 1.) His job was to “wedge” Tetrazene, a chemical compound used as a primer in the ammunition being produced. (Id.) Approximately 20 seconds into the “wedging” of Tetrazene, an explosion occurred killing Bass. (Id.) Following the explosion, Bass' surviving descendants M.B. and T.B., through their natural mother and next friend, Phynice Kelley, were awarded worker's compensation benefits from Orbital ATK. (Doc. 18-5.) Now, Plaintiffs have filed this action against the Government. Plaintiffs advance three theories of liability in the complaint: (1) negligence; (2) strict liability for hiring an independent contractor to perform an ultrahazardous activity; and (3) negligent entrustment. (Doc. 1.) The Government has now filed its motion to dismiss for lack of subject matter jurisdiction on grounds of sovereign immunity and Missouri Workers' Compensation Law.

         Legal Standard

         “Subject matter jurisdiction is the power of a federal court to decide the claim before it. Id. (citing Lightfoot v. Cendant Mortg. Corp., 137 S.Ct. 553, 562 (2017)). “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Federal courts retain only the power authorized by the Constitution and statute. Id. “Generally speaking, a federal court's subject-matter jurisdiction over a case must be based on either [a] federal question . . . or diversity.” Miller v. Clark, 2013 U.S. Dist. LEXIS 196713, at *1 (W.D. Mo. June 14, 2013). If a federal court lacks jurisdiction over the subject matter of a case, the court must dismiss the action. Fed.R.Civ.P. 12(h)(3).

         “A Rule 12(b)(1) motion challenges the federal court's subject matter jurisdiction over a cause of action.” Knox v. St. Louis City Sch. Dist., 2018 U.S. Dist. LEXIS 209123, at *2 (E.D. Mo. Dec. 12, 2018). In deciding a Rule 12(b)(1) motion, a district court is required to distinguish between a facial attack and a factual attack. Croyle by & through Croyle v. United States, 908 F.3d 377, 380 (8th Cir. 2018). “In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a factual attack, the Court “may look outside the pleadings to affidavits or other documents.” Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018). This does not convert the Rule 12(b)(1) motion into one for summary judgment, however. Id. (citation omitted). Instead, the party invoking federal jurisdiction must prove jurisdictional facts by a preponderance of the evidence. Id. “Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). “[No presumption of] truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Titus, 4 F.3d at 593 n. 1. Further, Plaintiff bears the burden of proving jurisdiction exists. Id.; Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019) (citation omitted). Finally, “[i]t is to be presumed that a cause lies outside [of the Court's] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).

         Discussion

         The Government makers four factual challenges to the Court's jurisdiction. The Court will analyze each argument in turn.

         A. The United States Cannot be Strictly Liable

         In Count II of Plaintiffs' complaint, they allege the Government is strictly liable because it hired Orbital ATK to perform an ultrahazardous activity. (Doc. 1.) The Government points out however, it cannot be held strictly liable. (Doc. 18) (citing Laird v. Nelms, 406 U.S. 797, 802-03 (1972); United States v. Seekinger, 397 U.S. 203, 215 (1970)). Plaintiffs concede the Government cannot be strictly liable and seeks to amend the Complaint to state an additional claim(s) for negligence. (Doc. 27, pgs. 17-18.) However, Plaintiffs' request fails to comply with Local Rule 15.1. Specifically, Plaintiffs have failed to file a motion to amend and have not attached a proposed amended pleading as required by Local Rule 15.1(a)(2). Therefore, the Court will dismiss Count II of Plaintiffs' Complaint.[1]

         B. The Discretionary Function Exception Shields the ...


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