Estate of Justin M Magleby v. United States of America et al, No. 1:2023cv03060 - Document 46 (E.D. Wash. 2024)
Court Description: ORDER granting 32 Motion to Dismiss for Lack of Jurisdiction. The Complaint against the United States is DISMISSED with prejudice.The Complaint against the remaining two Defendants is DISMISSED without prejudice. Signed by Judge Thomas O. Rice. (BF, Paralegal)
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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 9 IN RE THE ESTATE OF JUSTIN M. MAGLEBY, Deceased, by and through STEVEN R. MAGLEBY, Personal Representative and on behalf of the Estate’s statutory beneficiaries, 10 11 12 13 14 15 16 CASE NO: 1:23-CV-3060-TOR ORDER GRANTING UNITED STATES’ MOTION TO DISMISS Plaintiff, v. UNITED STATES OF AMERICA; NORTHWEST HELICOPTERS, LLC, a Washington Limited Liability Company; MACKAY & SPOSITO INC., a Washington Corporation, Defendants. BEFORE THE COURT is the United States’ Motion to Dismiss Pursuant to 17 Rules 12(b)(1) and 12(h)(3). ECF No. 32. This matter was submitted for 18 consideration without oral argument. The Court has reviewed the record and files 19 herein, the completed briefing, and is fully informed. For the reasons discussed 20 below, Defendants’ Motion to Dismiss is granted. ORDER GRANTING UNITED STATES’ MOTION TO DISMISS ~ 1 1 Justin Magleby was an apprentice lineman employed by PAR Electrical 2 Contractors, LLC (“PAR”), an independent contractor hired by the Bonneville 3 Power Administration (“BPA”) to perform maintenance on the Olympia-Grand 4 Coulee transmission line in rural Kittitas County. Mr. Magleby tragically died 5 while he was performing maintenance work as a PAR employee. Tools on a ladder 6 he was descending contacted a line carrying induced voltage. PAR employees 7 failed to correctly ground the circuit before commencing work on the line and Mr. 8 Magleby did not maintain an appropriate distance from the line. 9 10 I. Standard of Review The Federal Rules of Civil Procedure provide for the dismissal of a complaint 11 for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1) and 12(h)(3). 12 “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for 13 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the 14 challenger asserts that the allegations contained in a complaint are insufficient on 15 their face to invoke federal jurisdiction.” Id. “[I]n a factual attack,” on the other 16 hand, “the challenger disputes the truth of the allegations that, by themselves, 17 would otherwise invoke federal jurisdiction.” Id. “In resolving a factual attack on 18 jurisdiction,” the Court “may review evidence beyond the complaint without 19 converting the motion to dismiss into a motion for summary judgment.” Id. The 20 ORDER GRANTING UNITED STATES’ MOTION TO DISMISS ~ 2 1 Court “need not presume the truthfulness of the plaintiff's allegations” in deciding 2 a factual attack. Id. 3 The United States is immune from civil liability unless it consents to be sued. 4 See Dalehite v. United States, 346 U.S. 15, 30 (1953) (citing Feres v. United 5 States, 340 U.S. 135, 139 (1950)). The FTCA provides a limited waiver of that 6 sovereign immunity, under which “the United States is liable to the same extent as 7 a private party for certain torts of federal employees . . . ‘in accordance with the 8 law of the place where the act or omission occurred.’” Autery v. United States, 424 9 F.3d 944, 956 (9th Cir. 2005) (quoting 28 U.S.C. § 1346(b)(1)). In relevant part, 10 11 12 13 14 15 § 1346(b)(1) provides that the United States may be sued: . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. The FTCA's limited waiver of sovereign immunity explicitly excludes “any 16 contractor with the United States” from its definition of “[e]mployee of the 17 government.” 28 U.S.C. § 2671 (“but does not include any contractor with the 18 United States.”). This exclusion is known as the “independent contractor 19 exception” to the FTCA. Courts have construed the independent contractor 20 exception to protect the United States from vicarious liability for the negligent acts ORDER GRANTING UNITED STATES’ MOTION TO DISMISS ~ 3 1 of its independent contractors. See Yanez v. United States, 63 F.3d 870, 872 n.1 2 (9th Cir. 1995). “Since the United States can be sued only to the extent that it has 3 waived its immunity, due regard must be given to the exceptions, including the 4 independent contractor exception, to such waiver.” United States v. Orleans, 425 5 U.S. 807, 814 (1976). 6 II. Whether Private Person would be Liable under Washington Law 7 The law as set forth by the Supreme Court of Washington in Tauscher v. 8 Puget Sound Power & Light Co., 96 Wash. 2d 274 (1981), controls this decision. 9 In that case, an employee of an independent contractor was working on certain 10 11 high voltage lines for Puget Power and was electrocuted. “The common law rule is that one who engages an independent contractor is 12 not liable for injuries to employees of the independent contractor resulting from the 13 contractor’s work.” Id. at 277. The “inherently dangerous nature” of the work 14 does not provide an exception to this rule in Washington. “When work by its very 15 nature creates some peculiar risk of injury, and the general contractor has reason to 16 know of the inherent hazards of the work, the general contractor has a duty to take 17 reasonable precautions against those hazards.” Kelley v. Howard S. Wright Constr. 18 Co., 90 Wash.2d 323, 332 (1978); see also Tauscher, 96 Wash. 2d at 279 (“We 19 adhere to the rule reaffirmed in the Epperly case that the employer’s liability does 20 not extend to employees of independent contractors merely because of the presence ORDER GRANTING UNITED STATES’ MOTION TO DISMISS ~ 4 1 of inherently dangerous activities.”). “Although electrical work is considered by 2 most to be an inherently dangerous activity, it is not necessarily inherently 3 dangerous to experienced linemen.” Tauscher, 96 Wash. 2d. at 280. 4 Plaintiff’s endless citations to the Contract between the BPA and PAR do not 5 show that the BPA was ultimately or only responsible for safety. PAR had that 6 obligation as demonstrated by the wording in the contract. While BPA could stop 7 work for certain reasons, it was not on site and did not control the safety of every 8 employee for the independent contractor, PAR. 9 According to the Contract, PAR was “responsible for proper safety and health 10 precautions to protect the work, the workers, the public, and the property of 11 others.” See ECF No. 33 at ¶ 8. It was PAR’s responsibility to establish project 12 plans, provide project management, procure all materials, provide and oversee 13 safety, labor, and equipment. Id. at ¶ 10. 14 The multiple cases cited by Plaintiff are inapplicable to the facts of this case. 15 According to the Federal Tort Claims Act, the United States has not waived 16 sovereign immunity with respect to the allegations made against it. 17 III. No Remaining Jurisdiction 18 Because jurisdiction was based on the Federal Tort Claims Act, ECF No. 13, 19 First Amended Complaint, this Court no longer has jurisdiction to proceed against 20 the remaining two Defendants. There is no diversity jurisdiction. According to 28 ORDER GRANTING UNITED STATES’ MOTION TO DISMISS ~ 5 1 U.S.C. § 1367(d), the period of limitations for any claim shall be tolled for a period 2 of 30 days after it is dismissed unless State law provides for a longer tolling period. 3 ACCORDINGLY, IT IS HEREBY ORDERED: 4 1. The United States’ Motion to Dismiss, ECF No. 32, is GRANTED. The 5 Complaint against the United States is DISMISSED with prejudice. 6 2. The Complaint against the remaining two Defendants is DISMISSED 7 without prejudice. 8 3. All deadlines, hearings and trial are VACATED. 9 The District Court Executive is directed to enter this Order and Judgment, 10 11 furnish copies to the parties, and CLOSE the file. DATED February 29, 2024. 12 13 14 THOMAS O. RICE United States District Judge 15 16 17 18 19 20 ORDER GRANTING UNITED STATES’ MOTION TO DISMISS ~ 6
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