Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA TIEN VAN COA, ET AL CIVIL ACTION VERSUS NO: 07-7464 GREGORY WILSON, ET AL SECTION: J(1)
ORDER AND REASONS
Before the Court is Plaintiff s’ Motion to Remand (Rec. Doc. 4). This motion, which is opposed, was set for hearing on November 28, 2007 on the briefs. Upon review of the record, the memoranda of counsel, and the applicable law, this Court now finds, for the reasons set forth below, that Plaintiffs’ Motion to Remand should be granted.
Background Facts
This action arises out of a motor vehicle collision that occurred in Orleans Parish on October 16, 2006. A vehicle driven by Plaintiff Tien Van Cao collided with a vehicle owned by Phillips and Jordan, Inc. (“P&J”) and operated by Gregory Wilson, an employee of P&J. The vehicle driven by Cao held four minor passengers.
At the time of the accident, P&J was the prime contractor for the Corps of Engineers (“USACE”), privately contracted to clear hurricane debris caused by Hurricane Katrina.
Plaintiffs brought suit in Louisiana state court in the Parish of Orleans alleging negligence on the part of P&J, its employee Wilson, and P&J’s insurer, Tennessee Insurance Services, LLC. Soon thereafter, Defendants removed the case alleging both complete diversity between the parties and invoking this Court’s jurisdiction under the Federal Tort Claims Act (“FTCA”).
The Parties’ Arguments A. Diversity Jurisdiction
According to Plaintiffs, complete diversity is lacking between the parties as Plaintiffs were all domiciled in Louisiana, as was Defendant Wilson. [1] Also, no Plaintiff has a damage claim greater than $75,000, a fact to which Plaintiffs stipulate in their motion to remand. As a result, this Court lacks diversity jurisdiction under 28 U.S.C. 1332.
Defendants fail to respond to these allegations.
B. Federal Question Jurisdiction
As to federal question jurisdiction, Defendants state that P&J was the prime contractor for USACE and Gregory Wilson was its employee, with both parties acting under the control and direction of USACE, thus invoking derivative immunity from state tort claims. As such, Plaintiffs’ claims should have been brought under the FTCA and are governed exclusively thereunder.
However, in their motion to remand, Plaintiffs argue that as
an independent contractor , P&J is not an employee of the federal
government, and consequently does not enjoy derivative immunity
and cannot invoke the FTCA. Plaintiffs cite United States v. New
Mexico in support of the notion that private contractors, whether
prime or subcontractors, are not government employees nor are
they agents of the federal government.
Plaintiffs also cite Whitaker v. Harvell-Kilgore in which
the Fifth Circuit held that a manufacturer of a grenade and the
manufacturer of the fuse of the grenade were not entitled to
sovereign immunity afforded to the federal government because
they were independent contractors.
In opposition, Defendants state that P&J was the prime
contractor for USACE, and not an independent contractor as
Plaintiffs suggest. According to Defendants, USACE maintained
the lead role in all clean-up activities, and P&J merely acted as
USACE’s agent and manager. As such, P&J is entitled to
derivative immunity under the FTCA, resulting in exclusive
federal jurisdiction. Yearsley v. Ross Constr. Co.,
Furthermore, P&J relies upon the government contractor’s
defense, in an attempt to argue federal conflict preemption.
[2]
Under the declared state of emergency that followed Hurricane
Katrina, P&J’s operations came under and were authorized as
“civil defense activities” resulting in a finding of immunity
even if its conduct was negligent. Defendants cite Sunrise
Village Mobile Home Park, L.C. v. United States for the
proposition that the government is immunized from claims arising
from a government contractor’s removal of debris from property
because “disaster relief” is considered to be the exercise of the
government’s discretionary function.
Defendants also cite Hudgens v. Bell Helicopter Textron in
which the Eleventh Circuit confirmed that service contractors
such as P&J may invoke the government contractor defense to
lawsuits seeking tort damages under state law.
In reply, Plaintiffs again assert that P&J is not an agent
of the federal government, but is instead an independent
contractor who remained a distinct entity pursuing private ends.
Also, Plaintiffs state that the government contractor’s defense
does not apply in this case. According to Plaintiffs, the
defense only applies to liability for design defects in military
equipment. Boyle v. United Technologies Corp.,
Discussion
Generally, a defendant may remove a civil action filed in
state court if a federal court would have had original
jurisdiction. See 28 U.S.C. § 1441(a). Original diversity
jurisdiction is appropriate where the matter in controversy
exceeds $75,000 and is between citizens of different states. 28
U.S.C. § 1332(a)(1). A defendant bears the burden of proving by
a preponderance of the evidence that jurisdiction exists. De
Aguilar v. Boeing Co.,
As to federal question jurisdiction, the FTCA “enables
District Courts to exercise jurisdiction over claims against the
United States 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.” Davis v. United States,
The question then becomes, was P&J considered to be a federal employee for purposes of the FTCA? [3] In other words, is P&J an agent of the federal government, or an independent contractor to which the FTCA does not apply?
In both cases relied upon by Plaintiffs, namely, Powell and
Whitaker, the “independent contractor” designation derived from
the manufacturer’s contract with the government, which expressly
stated that the contractor was an independent contractor and not
an agent of the government.
Absent an indication in the contract, the critical factor in
distinguishing an independent contractor from an employee “is the
power of the Federal Government ‘to control the detailed physical
performance of the contractor.’” Rodriguez v. Sarabyn, 129 F.3d
760 (5th Cir. 1997). However, this is not the only factor.
Broussard v. United States,
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion to Remand (Rec. Doc. 4) is hereby GRANTED; the above-captioned action is hereby REMANDED to the court from which it was removed .
New Orleans, Louisiana, this 29th day of November, 2007. _____________________________ CARL J. BARBIER UNITED STATES DISTRICT JUDGE
Notes
[1] Plaintiffs do not dispute the diversity of Defendant P&J, a foreign corporation incorporated in and with its principal place of business in Tennessee, or Defendant Tennessee Insurance Company, a foreign corporation incorporated and with its principal place of business outside of Louisiana.
[2] Under the Stafford Act, the federal government is not “liable for any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government . . . .” 42 U.S.C. 5148. Furthermore, the definition of what constitutes a “discretionary function” is the same as that term has been defined under the FTCA.
[3] See Bynum v. FMC Corp
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