United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
The Court has before it the United States' Motion to Dismiss (Dkt. 16) and the State of Idaho's Motion for Leave to File First Amended Complaint (Dkt. 21) ("Motion to Amend") to add two individual defendants to this case. Defendant opposes Plaintiff's Motion to Amend, suggesting this case should be dismissed for lack of subject matter jurisdiction, rendering Plaintiff's Motion to Amend moot. However, for the reasons expressed below, the Court will grant Plaintiff's First Motion to Amend and allow individuals John Clough, Jr., and Jacob Johnson to be added as defendants (hereinafter "Individual Defendants") to this action. The Court will defer ruling on Defendant's Motion to Dismiss until the Individual Defendants have had the opportunity to obtain representation and to respond to both Plaintiff's Complaint and Defendant's Motion to Dismiss. Following such response, an evidentiary hearing to resolve the scope of employment issue will be necessary in order for the Court to rule on Defendant's Motion to Dismiss.
This case involves a fire that occurred at the Naval Reserve Officer Training Corps (NROTC) Building at the University of Idaho. On June 18, 2011, active-duty Navy and Marine ROTC students attended a mandatory "Field Day" to thoroughly clean the NROTC building on campus. (Dkt. 16-3, pp. 7-8.) The cleaning was organized by senior ROTC officer Gunnery Sergeant Bradley Tyson. ( Id., p. 15; Dkt. 16-4, p. 14.) Approximately ten ROTC members were present for the Field Day, and each was assigned to clean a specific part of the NROTC building. (Dkt. 16-3, p. 24; Dkt. 16-4, pp. 14, 17; Dkt. 16-7, p. 7.) The cleaning project started first thing in the morning and ended several hours later, near lunch time. (Dkt. 16-3, pp. 7, 15.) After the cleaning project was complete, the mandatory assignment was over and the ROTC students were free to leave. (Dkt. 16-3, pp. 7, 15, 17; Dkt. 16-7, pp. 8, 15.) However, Sergeant Tyson decided to barbeque some leftover meat found in the NROTC building's refrigerator to reward the men for their work. (Dkt. 16-4, p. 25.) Approximately nine of the ten ROTC students who had been present for Field Day stayed for the barbeque. (Dkt. 16-3, p. 24.)
Sergeant Tyson went home and retrieved his barbeque grill, chimney lighter and charcoal, and also purchased some provisions from the store for the barbeque. (Dkt. 16-8, pp. 8-10.) It was pouring rain that day, and Sergeant Tyson had some trouble getting the coals hot enough to cook the meat. ( Id., p. 13.) Sergeant Tyson left the party while the majority of the men were still there, and Sergeant Johnson took over the cooking. (Dkt. 16-7, pp. 12-13.) When the cooking was complete, Sergeant Clough set the grill on the sidewalk in front of the NROTC building for the rain to dump into it. (Dkt. 16-3, p. 18.) Sergeant Johnson also dumped a bucket of water on the coals while they were still in the grill. (Dkt. 16-3, pp. 18-19; Dkt. 16-7, pp. 15-16.) Later, Sergeant Johnson dumped the coals out in the dirt next to the concrete patio. (Dkt. 16-7, pp. 15-16.) Sergeants Clough and Johnson also each dumped one or more buckets of water onto the coals to further extinguish them. (Dkt. 16-3, p. 19; Dkt. 16-7, pp. 15-16.) When the men left the barbeque, the coals were sitting in a mud puddle up against the concrete. ( Id. )
Later than evening, by 6:00 p.m., the NROTC building was on fire. (Dkt. 16-8, p. 19.) Plaintiff alleges the charcoal coals were not fully extinguished and ignited nearby mulch/plant material, which then spread to the building and caused substantial damage. (Dkt. 1, ¶ 11.) Plaintiff alleges the ROTC students were acting within the scope of their employment when they negligently failed to extinguish the charcoal, and brings a negligence action, pursuant to the Federal Tort Claims Act, 28 USC § 2671 et. seq., (hereinafter "FTCA") against the Defendant United States. In its Motion to Amend, Plaintiff seeks to add a negligence claim against the Individual Defendants, and suggests Sergeants Clough and Johnson were responsible for failing to extinguish the charcoal.
1. Motion to Amend
Federal Rule of Civil Procedure 15(a) is "very liberal" and leave to amend "shall be freely given when justice so requires." AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) ( quoting Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999)). The decision of whether to grant or deny a motion to amend pursuant to Rule 15(a) rests in the sole discretion of the trial court. U.S. v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). The four factors that are commonly used to determine the propriety of a motion for leave to amend are: 1) undue delay, bad faith or dilatory motive on the part of the movant; 2) repeated failure to cure deficiencies by amendments previously allowed; 3) undue prejudice to the opposing party by virtue of allowance of the amendment; and 4) futility of amendment. C.F. ex rel . Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 n. 5 (9th Cir.2011) ( citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
These factors are not of equal weight in that delay, by itself, is insufficient to justify denial of leave to amend. Howey v. United States, 481 F.2d 1187, 1191 (9th Cir. 1973). "Only where prejudice is shown or the movant acts in bad faith are courts protecting the judicial system or other litigants when they deny leave to amend a pleading." Id. Thus, although all four factors are relevant when ruling on a motion for leave to amend, the Ninth Circuit has held that the "crucial factor is the resulting prejudice to the opposing party." Id., at 1190. Indeed, prejudice is the touchstone of the inquiry under Rule 15(a). Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003). Ultimately, "[u]nless undue prejudice to the opposing party will result, a trial judge should ordinarily permit a party to amend its complaint." Howey, 481 F.2d at 1190.
In this case, Plaintiff filed the Motion to Amend to add the Individual Defendants by the Scheduling Order deadline of October 1, 2013. (Dkt. 12.) Further, pretrial motions are not due until April 30, 2014, and trial is not scheduled to begin until November 12, 2014. Under these circumstances, the Court finds allowing the proposed amendment would not unduly prejudice the United States. Further, the other three factors are not at issue because there is no evidence of undue delay or bad faith and Plaintiff has not previously sought to amend the Complaint. And, although the United States appears to imply amendment would be futile because this Court lacks subject matter jurisdiction, the Court finds Plaintiff has presented facts to raise a genuine dispute as to the character of the ROTC students' acts, namely, whether such acts were taken within the scope of their federal employment. Because the Court has subject matter jurisdiction under the FTCA if the ROTC students were acting within the scope of their employment, allowing Plaintiff to amend the Complaint to add the Individual Defendants would not be futile. As such, the Court will GRANT the Motion to Amend the Complaint.
2. Motion to Dismiss
In order for this Court to have subject matter jurisdiction under the FTCA, the ROTC students must have been acting with the scope of their federal employment when they were allegedly negligent. 28 U.S.C. §§ 1346(b)(1), 2679(b)(1). Defendant concedes that the ROTC students are employees of the United States. (Dkt. 16-1, p. 2.) However, Defendant argues the ROTC students were not acting within the scope of their employment when they allegedly acted negligently. ( Id. )
Under the FTCA, members of the armed forces act within the scope of their employment when they act "in the line of duty." 28 U.S.C. § 2671. In the FTCA context, the phrase acting "in the line of duty" merely invokes the state law of respondeat superior. Merritt v. United States, 332 F.2d 397, 398 (1st Cir. 1964) (citations omitted). The parties agree that because the fire and events leading to the fire occurred in Idaho, Idaho respondeat superior law determines whether the ...