United States District Court, W.D. Missouri, Western Division
ROSEANN A. KETCHMARK, UNITED STATES DISTRICT COURT JUDGE
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
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.
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).
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.
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).
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).
Government makers four factual challenges to the Court's
jurisdiction. The Court will analyze each argument in turn.
The United States Cannot be Strictly Liable
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'
The Discretionary Function Exception Shields the ...