Opinion
2:23-cv-00334-HL
11-03-2023
SHAD HARRISON, in his capacity as Personal Representative of The Estate Of Jonathon Harrison, Plaintiff, v. VALE OREGON IRRIGATION DISTRICT, a local government entity; TY KING, an individual; and the UNITED STATES BUREAU OF RECLAMATION, a federal government agency, Defendants,
Bruno J. Jagelski Dayna C. Carter Yturri Rose, LLP Attorneys for Plaintiff. Brett Mersereau The Law Office of Brett Mersereau Blake H. Fry Hart Wagner, LLP Attorneys for Defendants Vale Oregon Irrigation District and Ty King. Natalie K. Wight, United States Attorney District of Oregon Michael Jeter, Assistant United States Attorney Attorneys for the United States Bureau of Reclamation.
Bruno J. Jagelski Dayna C. Carter Yturri Rose, LLP Attorneys for Plaintiff.
Brett Mersereau The Law Office of Brett Mersereau Blake H. Fry Hart Wagner, LLP Attorneys for Defendants Vale Oregon Irrigation District and Ty King.
Natalie K. Wight, United States Attorney District of Oregon Michael Jeter, Assistant United States Attorney Attorneys for the United States Bureau of Reclamation.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Shad Harrison brings this wrongful death action against the United States Bureau of Reclamation (“United States” or “BOR”), Vale Oregon Irrigation District (“VOID”), and Ty King (“King”). Before this Court are two motions to dismiss: (1) the United States moves to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that all claims are barred by the Federal Tort Claims Act, see ECF 17 (“BOR Mot.”); and (2) VOID and King move to dismiss Plaintiff's claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), see ECF 12 (“VOID Mot.”). This Court heard oral argument on VOID and King's motion to dismiss on July 18, 2023, see July Tr., ECF 25; on August 14, 2023, this Court heard oral argument on the United States' motion to dismiss, see Aug. Tr., ECF 29.
For the reasons discussed below, the United States' Motion to Dismiss should be GRANTED, and Plaintiff's claims against the United States should be dismissed with prejudice. This Court should decline to exercise supplemental jurisdiction over Plaintiff's pendent state law claims against VOID and King, and those claims should be dismissed without prejudice. VOID and King's Motion to Dismiss should be DENIED as moot.
BACKGROUND
I. The Parties
Plaintiff is the personal representative of the estate of Johnathon Harrison (“Harrison”). Compl. ¶1, ECF 1. Harrison is a former VOID employee who died on October 27, 2021, when he was driving a dump truck for VOID that went off the road, rolled down an embankment, and caused his death. Id. ¶¶2, 24-25. VOID is a local government entity based in Vale, Oregon that operates and manages an irrigation district known as the Vale Project. Id. ¶¶6, 26; Horsburgh Decl. ¶2, ECF 18. King is VOID's Manager and was Harrison's direct supervisor. Compl. ¶7. The Vale Project is comprised of land that is owned by the United States and includes multiple dams, reservoirs, the Vale Main Canal, and a distribution and drainage system (“irrigation works”). Id. ¶8, 26; Horsburgh Decl. ¶2. Since 1926, the United States, acting through BOR, has entered into multiple contracts with VOID regarding the construction and maintenance of canals within the Vale Project. Id. ¶3; Compl. ¶¶8, 28.
II. Vale Project History
In 1926, the United States entered into a contract with VOID in which the United States agreed to construct the irrigation works, including a main canal, laterals, sublaterals, and appurtenant structures, as well as a drainage system. Horsburgh Decl. ¶5; id. Ex. 1 (Contract No. Ilr-64, dated October 22, 1926 (“1926 Contract”)); Vale Project History, UNITED STATES BUREAU OF RECLAMATION (Oct. 17, 2023, 9:37 AM), https://www.usbr.gov/projects/index.php?id=415). Upon completion of the construction, the 1926 Contract provided that the United States would transfer the irrigation works to VOID for care, operation, and maintenance. Horsburgh Decl. ¶5; id. Ex. 1. The 1926 Contract stated: “The United States assumes no responsibility whatever for the safety, integrity, or operation of the said irrigation works or any portion thereof and [VOID] will hold the United States and its assigns, officers, agents, and employees harmless from any and all claims arising in connection therewith.” Id. ¶11.
In 1949, the United States entered into a contract with VOID that transferred the operation and maintenance of the irrigation works to VOID as follows:
Transferred Works: Care, Operation and Maintenance Thereof 15. (a) The United States reaffirms the transfer made to [VOID] on January 1, 1949 pursuant to the Government-[VOID] contract of the works constructed by the United States, exclusive of the reserved works. (b) [VOID] reaffirms its acceptance of the transferred works. [VOID] shall care for, operate and maintain the transferred works in such manner that they will remain in as good and efficient condition, and of equal capacity for the carrying and distribution of irrigation waters, as of the date of the transfer to [VOID]; and will use all proper methods to secure the economical and beneficial use of irrigation waters. The care, operation and maintenance of the transferred works by the District shall be without cost or expense to the United States.Id. Ex. 2 ¶15 (Contract No. IlR-1552, dated April 11, 1949 (“1949 Contract”)). The 1949 Contract provided that VOID make “all repairs” to the transferred works, and in the case of neglect or failure to do so, the United States “may enter on the transferred works . . . for the purpose of making any necessary repairs and may charge the cost thereof to [VOID].” Id. ¶16(a). Title of the transferred works remained with the United States. Id. ¶17. The 1949 Contract provided that BOR “may cause to be made from time to time a reasonable inspection of the transferred works to ascertain whether the terms of the contract are being met by [VOID.]” Id. ¶18. The 1949 Contract stated: “Should [VOID] default in any manner in the performance of this contract . . . the United States may take over the operation and maintenance of all or any part of the transferred works.” Id. ¶19.
III. Harrison's Employment with VOID and Fatal Accident
In or around February 2020, Harrison began working for VOID as a ditch rider, truck driver, and laborer. Id. ¶11. Harrison's job duties included operating dump trucks and other heavy equipment that required a commercial driver's license (“CDL”). Id. On November 19, 2020, Harrison obtained a CDL learner's permit from the State of Oregon. Id. ¶13. The permit allowed Harrison to operate dump trucks and other commercial vehicles only under the “close supervision” of someone with a CDL. Id. Harrison was given 30 days to complete the driving test to obtain his Class A CDL. Id. ¶14. Harrison attempted but failed to obtain his CDL within the initial 30 days and was granted three 30-day extensions so that he would have the opportunity to retest. Harrison re-tested but continued to fail, and his CDL learner's permit expired on April 4, 2021. Id. Plaintiff states that Harrison was unable to pass the driving test to obtain his CDL license because VOID and King “failed to provide him with proper and adequate training and instruction on the operation of commercial vehicles, or assist him in understanding the test despite his requests for help.” ¶15. Although Harrison informed King and VOID's officers that he was unable to pass the test required to obtain a Class A CDL, id. ¶15, VOID and King “continued to force [Harrison] to operate the dangerous vehicles even after his learner's permit expired as a condition of his employment.” Id. ¶16.
On October 25, 2021, Vale, Oregon experienced a heavy rainstorm that soaked the canal roads that ran along the Vale Project Main Canal. ¶17. A light rain continued through October 26, 2021. Id.
On October 27, 2021, the date of Harrison's death, King told Harrison and a co-worker to transport heavy loads of concrete from the city of Vale to the Project's Main Canal to stabilize sections of the canal. Id. ¶18. The Main Canal road had not yet dried from the rain. Id. The dirt roads which ran along the canals of the Project were “impassable and not navigable when wet.” Id. ¶21. Plaintiff alleges that, BOR, VOID, and King “knew that vehicle operators could not steer or control their vehicles on the canal roads when they were wet.” Id. On October 27, 2021, VOID and King assigned Harrison to drive a “dangerous . . . 1991 Kenworth dump truck” with “defective brakes and an obsolete suspension system.” Id. ¶20. VOID and King knew that the truck's “out-of-date and worn-out suspension system had a tendency to list to one side when carrying heavy loads” and “[t]hey also knew the brakes were defective.” Id. The canal road that Harrison was required to drive on was a narrow, winding, dirt road with sharp drop offs on each side. It was so narrow that two vehicles could not safely pass by one another. Id. ¶22. Harrison and his co-worker were instructed by King to “split tracks” as they drove on the canal road, which meant that they were to avoid driving in the same tire tracks and to compact the soft, wet sections of the road. Id. ¶23. This meant that Harrison was told to avoid driving on the parts of the road that “were proven solid and safe, and instead seek out soft unstable portions to compact the Truck's weight.” Id.
After Harrison took his first load up the canal road, his co-worker picked up a load of concrete and waited near the entry to the road for Harrison to return so he could safely pass. Id. ¶24. When Harrison failed to return at the expected time, his co-worker drove up the canal road to investigate. Id. The co-worker observed Harrison's truck at the bottom of an embankment with Harrison trapped underneath the passenger side of the truck. Id. ¶25. When emergency personnel arrived, they pronounced Harrison deceased. Id.
IV. Plaintiff's Allegations
Plaintiff broadly alleges that all three defendants-the United States, VOID, and King- are responsible for Harrison's death. Plaintiff specifically alleges that defendants King and VOID failed to properly train or supervise Harrison, failed to inspect and repair VOID equipment, and failed to comply with applicable safety standards. Compl. ¶30(a)-(s) (alleging multiple failures on the part of VOID and King regarding training, supervision, inspections, and repairs). The United States remarks, and this Court agrees, that “the bulk of the allegations are directed at the conduct of . . . King and [VOID], and not the United States' acts and omissions.” BOR Mot. 35.
However, the complaint also “appears to lump all Defendants together.” Id. For example, Plaintiff alleges that “Defendants . . . did not provide [Harrison] . . . with legally required safety equipment, safety training, or supervision from licensed drivers[,]” Id. ¶33 (emphasis added), and that “Defendants . . . forced [Harrison] and other employees to use defective dump trucks and equipment ....” Id. ¶34 (emphasis added). Although nothing in the complaint or record suggests that any BOR employee was present at the Vale Project or involved in staff training or equipment maintenance, the undifferentiated allegations against “Defendants” indicate that Plaintiff seeks to hold the United States liable for the allegedly defective training and supervision of VOID employees and the allegedly defective inspection and repair of VOID equipment.
Additionally, Plaintiff alleges that BOR “failed to exercise oversight over VOID” and “failed to require VOID to follow an accident prevent[ion] program or comply with state and federal safety laws.” Id. ¶29. Plaintiff alleges that BOR “retained ultimate control of the [Vale] Project” and had “the right to inspect VOID's work,” “the right to impose monetary penalties on VOID,” and “the right to terminate VOID's oversight of the [Vale] Project and even . . . assume absolute control of the Vale Project[.]” Id. ¶¶27-28. As the United States notes, those allegations “boil down to BOR allegedly failing to exercise oversight over [VOID] by not forcing it to comply with its safety obligations.” BOR Mot. 34-35.
Based on the alleged acts and omissions of BOR, VOID, and King, Plaintiff asserts the following claims against all defendants: (1) wrongful death; (2) violation of the Oregon Employer Liability Law; (3) negligence; and (4) negligence per se. Compl. ¶¶31-59. Plaintiff brings claims against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1331, and brings claims against VOID and King under the Oregon Tort Claims Act, Or. Rev. Stat. § 30.260. Id. ¶1.
LEGAL STANDARDS
I. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013) (simplified). As such, a court is to presume “that a cause lies outside this 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) (simplified); see also Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A defense of lack of “subject matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by a court on its own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed.R.Civ.P. 12(b)(1). The court must dismiss any case over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (when a court lacks subject matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a case, the court must dismiss the complaint, even sua sponte if necessary).
A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court over the subject matter of the complaint and may be either “facial” or “factual.” See Safe Air, 373 F.3d at 1039. A facial attack “accepts the truth of the plaintiff's allegations but asserts that they are ‘insufficient on their face to invoke federal jurisdiction.'” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Safe Air, 373 F.3d at 1039)). A factual attack “contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Leite, 749 F.3d at 1121; Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013). In a factual challenge, “a court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment....It also need not presume the truthfulness of the plaintiffs' allegations.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (simplified); Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012) (in a factual challenge to jurisdiction, “no presumptive truthfulness attaches to plaintiff's allegations”) (simplified).
Here, the United States presents a factual challenge. “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1039-40 n.2.
II. Federal Tort Claims Act
Unless it waives sovereign immunity, the United States is immune from suit. United States v. Mitchell, 445 U.S. 535, 538 (1980). The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., provides a limited waiver of sovereign immunity, making the United States liable for “personal injury or death caused by the negligent or wrongful acts or omissions of any employee of the Government while acting within the scope of his office or employment ....” 28 U.S.C. § 1346(b)(1); Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008) (in the FTCA, Congress waived “the United States' sovereign immunity for claims arising out of torts committed by federal employees”). Where the FTCA applies, the United States may be liable for certain torts “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. “The extent of the United States' liability under the FTCA is generally determined by reference to state law.” Liebsack v. United States, 731 F.3d 850, 855 (9th Cir. 2013) (citing Molzof v. United States, 502 U.S. 301, 305 (1992); 28 U.S.C. § 2674); Gasho v. United States, 39 F.3d 1420, 1427 (9th Cir. 1994) (“Liability is determined by the tort law of the state where the claim arose.”).
The FTCA expressly retains immunity from some tort liability through enumerated statutory exceptions. 28 U.S.C. § 2680. If one of those exceptions applies, a court lacks subject matter jurisdiction to hear a claim. See Simmons v. Himmelreich, 578 U.S. 621, 626 (2016) (“[D]istrict courts do not have jurisdiction over claims that fall into one of the 13 categories of ‘Exceptions' because ‘section 1346(b) of this title'-the provision conferring jurisdiction on district courts-does ‘not apply' to such claims.”).
DISCUSSION
The United States argues that Plaintiff's claims should be dismissed because: (1) Plaintiff cannot hold the United States vicariously liable for VOID and King's alleged misconduct under the independent contractor exception to the FTCA, BOR Mot. 18-30; (2) Plaintiff cannot hold the United States directly liable under the FTCA for its own alleged misconduct because those claims fail to state a claim under state or federal law; and (3) all claims are barred by the discretionary function exception to the FTCA. Id. 30-47. Each argument is discussed in turn below.
I. Vicarious Liability Claims
The United States argues that the independent contractor exception to the FTCA bars Plaintiff's claims that are based on the conduct of VOID and King because it “has not consented to be sued for the acts of independent contractors and therefore retains sovereign immunity[.]” BOR Mot. 18. The United States argues that it “transferred to [VOID] the care, operation, and maintenance of the [Vale] Project in 1949” and “does not oversee the day-to-day operations of the Project nor retain the right to control the detailed physical performance of [VOID]'s work.” Id. Simply put, the United States contends that “it was not Mr. Harrison's employer” and “cannot be held liable for [his] on-the-job accident that occurred in the scope and course of his employment with [VOID].” Id.
A. Independent Contractor Exception
The FTCA's limited waiver of sovereign immunity “explicitly excludes ‘any contractor with the United States' from its definition of ‘[e]mployee of the United States.'” Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016) (citing 28 U.S.C. § 2671); Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (“[t]he FTCA includes officers and employees of ‘any federal agency' but expressly excludes ‘any contractor with the United States'” (quoting 28 U.S.C. § 2671)). This is known as “the independent contractor exception” to the FTCA. Edison, 822 F.3d at 517-18.
Under the FTCA, the negligence of a contractor cannot be imputed to the government absent a showing that the government controlled and supervised the “detailed physical performance” and “day-to-day operations” of the contractor. Autery, 424 F.3d at 956. “Contractual provisions directing detailed performance generally do not abrogate the contractor exception.” Id. at 957. Neither do detailed regulations and inspections, the ability to compel compliance with federal regulations, or the contractor's responsibility for maintaining property owned by the United States. Id.; see also Letnes v. United States, 820 F.3d 1517, 1519 (9th Cir. 1987); Borquez v. United States, 773 F.2d 1050, 1053 (9th Cir. 1985). “‘Since the United States can be sued only to the extent that it has waived its immunity, due regard must be given to the exceptions, including the independent contractor exception, to such waiver.'” Id. (quoting United States v. Orleans, 425 U.S. 807, 814 (1976)).
Plaintiff acknowledges that “the government cannot be held liable for torts committed by its independent contractors” and does not dispute that VOID is an independent contractor. Resp. 6, ECF 21. Plaintiff explains that his claims against the United States allege that BOR “engaged in direct negligent conduct” and do not rest on the acts of VOID as an independent contractor, or the acts of King or other VOID employees. Id. (emphasis added). At oral argument, Plaintiff emphasized that none of his four claims against the United States are based on a theory of “vicarious liability” and explained that he is “pursuing independent negligence based on [BOR's alleged] failure to enforce or implement the safety codes[.]” Aug. Tr. 25, ECF 29. Thus, Plaintiff insists that “the independent contractor exception does not apply.” Resp. 6.
This Court agrees and therefore addresses whether Plaintiff can assert claims against the United States under the FTCA based on the United States' own alleged acts or omissions. Cf. Edison, 822 F.3d at 518 (finding that the plaintiffs “do not seek to hold the United States vicariously liable for the acts or omissions of [its independent contractors,]” and instead sought “to hold the United States directly liable for its failure to take action”-and therefore addressing the viability of the plaintiffs' claims against the United States because “[t]he independent contractor exception . . . has no bearing on the United States' FTCA liability for its own acts or omissions”) (emphasis in original)); see also Alvarado v. United States, CV-F-09-243LJO SMS, 2010 WL 3001391, at *6 (E.D. Cal. July 29, 2010) (noting that the plaintiffs “contend that they assert direct liability claims against the government . . . and do not assert vicarious liability claims” and therefore “determin[ing] the adequacy of the pleading from that position”).
II. Direct Claims Against the United States
Again, Plaintiff alleges that “BOR failed to exercise oversight over VOID, and failed to require VOID to follow an accident prevent[ion] program or comply with state and federal safety laws.” Id. ¶29. Plaintiff contends that the United States is liable for Harrison's death based on BOR's acts or omissions, but the complaint does not refer to or clearly identify any duty that the United States allegedly owed to VOID or Harrison that could give rise to any of his asserted claims. In his response, Plaintiff clarified his theory of liability by arguing that the United States had a “duty to warn invitees of latent dangers” and that the United States “failed to meet its basic duties as a landowner in Oregon” by “failing to warn [Harrison] of dangers on the property.” Resp. 7 (citing Cassidy v. Bonham, 196 Or.App. 481, 486 (2004)). At oral argument, Plaintiff further explained that he alleges that BOR had a nondelegable duty to “provide a safe workplace” because BOR hired VOID to perform, and Harrison was engaged in, “an inherently dangerous activity.” Aug. Tr. 15 (citing Johnson v. Salem Title Co., 246 Or. 409 (1967)).
This Court therefore construes the complaint as asserting against the United States: (1) a premises liability claim based on a duty to warn or inspect regarding dangerous conditions; and (2) a negligence claim based on the duty of care to supervise or inspect where a contractor is hired to perform work involving inherently dangerous activity. Neither allegation states a claim for relief against the United States, however.
A. Duty to Warn or Inspect
Under Oregon law, a landowner “has the duty to warn an invitee of latent dangers and to protect the invitee against dangers in the condition of the premises about which the [landowner] knows or reasonable should have known.” Towe v. Sacagawea, Inc., 246 Or.App. 26, 34 (2011), aff'd in part, rev'd in part, 357 Or. 74 (2015). A “possessor of land” may be liable for injury resulting from a condition on the land only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.”Id. (citing Johnson v. Short, 213 Or.App. 255, 260 (2007)).
There is no dispute that VOID manages an irrigation district comprised of federal land and that Harrison “was hauling concrete in dump truck for [VOID] to reinforce a federally owned canal in the Vale Project” when his fatal accident occurred on October 27, 2021. BOR Mot. 9; Compl. ¶25 (“BOR owns . . . the land VOID manages”). Plaintiff states that Vale experienced heavy rain in the days before Harrison's death and alleges that the “dirt road which ran along the canals of the Vale Project were impassable and not navigable when wet.” Compl. ¶21. Plaintiff alleges that “BOR, VOID, and King knew that vehicle operators could not steer or control their vehicles on the canal road when they were wet.” Id. Plaintiff further alleges that the canal road had “sharp drop offs on each side” and was “so narrow that two vehicles could not safely pass by one another.” Id. ¶22.
It is not clear whether Plaintiff has sufficiently alleged that the wet condition of the narrow dirt road presented an “unreasonable risk of harm” to Harrison or anyone in Harrison's position. See Towe, 246 Or.App. at 34. However, even assuming that Plaintiff's allegations are sufficient to show that the United States, as landowner, knew of a condition that presented an unreasonable risk of harm to Harrison, Plaintiff has not alleged that the allegedly dangerous condition of the canal road was such that Harrison or any licensee “[would] not discover or realize the danger” or that Harrison “[did] not know or have reason to know of the condition and the risk involved.” Id. Stated another way, Plaintiff fails to allege that the United States failed to warn Harrison regarding “latent dangers” that existed on the property. Id. To the contrary,
Plaintiff's allegations indicate that the dangerous condition of the roads on the date of Harrison's death were well known to all parties-including Harrison-and were therefore not at all “latent[.]” Plaintiff, in fact, specifically alleges that Harrison followed orders to haul a load of concrete up the canal road despite being “nervous and apprehensive about driving on these wet canal roads and request[ing] that he not be required to drive when the roads were wet.” Compl. ¶37.
In Edison, the plaintiffs similarly argued that the United States, as a landowner, had a duty to warn federal prisoners about dangerous conditions that existed on federal property, viz. an outbreak of coccidioidomycosis (“cocci”) at a federal prison. 822 F.3d at 520. Under California law on premises liability-which mirrors Oregon law-landowners may be held liable for a failure to warn invitees of hidden dangers where, “(1) [the] defendant [landowners] knew or reasonably should have known of a concealed, preexisting hazardous condition on their premises” and “(2) [the] plaintiff . . . did not know and could not reasonably ascertain the condition[.]” Id. (citations omitted). The court held that, “because cocci poses a hidden danger that [the p]laintiffs could not reasonable ascertain on their own, the United States had a duty to warn [the p]laintiffs of cocci's risks prior to the their transfer to the [federal prison].” 822 F.3d at 520 (emphasis added).
In contrast to the plaintiffs' allegations in Edison, Plaintiff in this case does not allege that the canal road on which Harrison's accident occurred presented any “hidden danger” or that the United States failed to warn VOID or Harrison about a dangerous condition that VOID or Harrison could not “reasonably ascertain” on their own. Thus, Plaintiff fails to state a claim for failure to warn or inspect based on a theory of premises liability.
B. Duty to Supervise or Inspect Based on Inherently Dangerous Work
There is also no basis in Oregon law regarding Plaintiff's claim that the United States had a nondelegable duty to ensure VOID's compliance with safety standards and to “provide a safe workplace” because BOR hired VOID to perform, and Harrison was engaged in, “an inherently dangerous activity.” Aug. Tr. 15.
Under Oregon law, the general rule is that “the employer of an independent contractor is not liable for the contractor's negligence.” Meek v. Ward, 2:21-CV-00216-SU, 2021 WL 4319585, at *2 (D. Or. Aug. 9, 2021), report and recommendation adopted, 2021 WL 4317668 (D. Or. Sept. 22, 2021) (citing Johnson, 246 Or. at 413). However, that general rule is subject to a “significant exception: If the work to be done is ‘inherently dangerous,' the employer is liable for his contractor's negligence.” Id. As the court explained in Meek, “sections 413, 416, and 427 of the Restatement [(Second) of Torts (1965)] ‘describe exceptions to the general rule that employers are not liable for the torts of independent contractors' and ‘address the nondelegable duty employers have for work that involves unusual dangers inherent in the work.'” Id. at *2. Those sections “‘do not address ordinary dangers that are not special to the work at hand, . . .' but are instead aimed at ‘special dangers to others which the employer knows or has reason to know to be inherent in or normal to the work.'” Id. (citing Restatement (Second) Torts § 417).
Although an employer may be liable for harm caused by a contractor's performance of work involving ‘special dangers to others' under Oregon law, an employer's liability extends only to third parties and does not extend to injuries suffered by employees of the contractor. Wilson v. Portland Gen. Elec. Co., 252 Or. 385, 399 (1968). During oral argument, Plaintiff pointed out that other jurisdictions interpret Restatement (Second) Torts §§ 413, 416, and 417 as extending an employer's duty of care to employees of a contractor where the work involves special dangers. Aug. Tr. 11-13. Under Oregon law, however, an employer's duty of care in that context does not extend to a contractor's employees. As the Oregon Supreme Court made clear in Wilson, where an employer hires a contractor “to do work involving a special danger to others” and may be “subject to liability for physical harm caused to such others . . . ‘such others' to whom a duty is owed does not include employees of the independent contractor.” 252 Or. at 399 (emphasis added).
Specifically, Plaintiff cited Rooney v. United States, 634 F.2d 1238, 1244 (9th Cir. 1980), for the proposition that employees of independent contractors may bring claims against the United States under the FTCA “where the work to be performed involves special dangers.” See Tr. 1113 (also citing, Thorne v. United States, 479 F.2d 804, 808 (9th Cir. 1973), and Gardner v. United States, 780 F.2d 835, 837 (9th Cir. 1986)). In those cases, the Ninth Circuit applied California law to the employee's negligence claims, which, at the time of those decisions, provided that “the Government may be held liable for injuries to an employee of an independent contractor caused by the absence of the proper precautions[.]” Rooney, 634 F.2d at 1244 (citing Van Arsdale v. Hollinger, 68 Cal. 2d 245 (1968)). In Van Arsdale, the California Supreme Court interpreted §§413, 416, and 427 of the Restatement (Second) of Torts (1967) as extending to employees of contractors an employer's “nondelegable duty of due care” that may arise where “the work to be performed involves special dangers”). However, Privette v. Superior Court, 5 Cal.4th 689 (1993), overruled Van Arsdale, and held: “When, as here, the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor . . . the doctrine of peculiar risk affords no basis for the employee to seek recovery from the person who hired the contractor but did not cause the injuries.” Id. at 702; accord, Yanez v. U.S., 63 F.3d 870, 873 (9th Cir. 1995) (addressing wrongful death claim against the United States arising from the death of a contractor's employee and based on the peculiar risk doctrine, and dismissing the claim because that “theory of liability”-that an employer owes a duty of care to employees of a contractor performing inherently dangerous work-“[was] rejected in Privette”). Thus, the authority cited by Plaintiff is based on California law that has been overruled and has no bearing on this action.
Thus, under Oregon law, if BOR hired VOID to perform work that involved unusual or special dangers to others, BOR's duty of care would extend to third parties, but not to employees of VOID. See id. It is therefore unnecessary for this Court to address whether the complaint sufficiently alleges that the work BOR hired VOID to perform involved unusual or special dangers because there is no question that, even if it did, any purported duty of due care held by the United States in that context does not extend to employees of VOID-including Harrison. See Wilson, 252 Or. at 399. Cf. Buscher v. Pugent Sound Power and Light Co., 96 Wash.2d 274, 279-80 (1981) (noting that “jurisdictions . . . are divided over whether employees of an independent contractor owe the employees of the contractor a nondelegable duty of care based on the presence of inherently dangerous activity” and finding that “[t]he overwhelming number of jurisdictions which have resolved this issue have found . . . that no duty is owed by an owner to employees of an independent contractor.” Id. fn.2 (citing cases)).
This Court finds that Plaintiff has failed state a claim that the United States, acting through BOR, owed a duty of due care to Harrison under Oregon law to either (1) warn of allegedly dangerous conditions on the land owned by the United States, or (2) supervise, warn, or take special precautions based on the allegedly dangerous nature of the work being performed.
Plaintiff has therefore failed to state a claim against the United States under the FTCA based on the alleged negligence of federal employees.
At oral argument, Plaintiff argued that the Employer Liability Law (“ELL”), ORS 654.305 et seq., also “provides for a nondelegable duty” that BOR allegedly owed to Harrison. See Tr. 14 (citing Yeatts v. Polygon, 360 Or. 170 (2016)). The complaint alleges that BOR was Harrison's “indirect employer[,]” Id. ¶8, and Yeatts says that “liability under the ELL can be imposed on an indirect employer[.]” 360 Or. at 179. However, Plaintiff fails to allege facts showing that BOR employees and VOID employees were engaged “in a ‘common enterprise'” or had “intermingled duties and responsibilities in performing the risk-creating activity[,]” or that BOR “retained the right to control” or “actually control[led] the manner or method in which the risk-producing activity is performed.” Id. (listing grounds for liability of “indirect employers” under the ELL). Because there is no dispute that no BOR employees were present at the Vale Project and that no BOR employees were involved in safety training, equipment inspections, or work assignments for VOID employees, this Court finds it unlikely that BOR owed a duty of care to VOID or Harrison under the ELL. See Yeatts, 360 Or. at 179-185. However, as discussed below, even if BOR had a duty of care under the ELL and breached that duty, such claims would nevertheless be barred by the discretionary function exception to the FTCA.
III. Discretionary Function Exception
The United States contends that even if BOR had a duty to warn or supervise under applicable state law standards, “the discretionary function exception [(“DFE”)] covers all the alleged acts and omissions.” BOR Mot. 35. The United States argues that “[its] alleged acts and omissions regarding the oversight of [VOID], as well as other allegations relating to training, supervision, inspections, equipment upkeep were inherently discretionary acts” because they “‘involve an element of judgment or choice.'” Id. (quoting United States v. Gaubert, 499 U.S. 315, 322-23 (1991)). This Court agrees.
A. DFE Standards
The DFE provides that the FTCA's waiver of sovereign immunity does not apply to “[a]ny 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 Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).
The Supreme Court has established a two-part test for determining whether the discretionary function test applies. See Berkovitz v. United States, 486 U.S. 531, 536-37 (1988); Gaubert, 499 U.S. at 322-23. The first step is to determine whether the challenged actions involve an “element of judgment or choice.” Id. at 322. “If a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow[,]' the act is not discretionary because ‘the employee has no rightful option but to adhere to the directive.'” Nieves Martinez v. United States, 997 F.3d 867, 876 (9th Cir. 2021) (quoting Berkovitz, 486 U.S. at 536). “This step is called the ‘discretionary act' prong of the discretionary function exception analysis.” Gonzales v. United States, 814 F.3d 1022, 1027 (9th Cir. 2016) (citation omitted).
If the challenged government action did involve choice or judgment, the second step is to determine whether that judgment was “of the kind that the discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322-23. The exception “protects only government actions and decisions based on considerations of public policy.” Id. at 323 (quoting Berkovitz, 486 U.S. at 537). “More specifically, ‘if the judgment involves considerations of social, economic, or political policy, the exception applies.'” Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996), as amended (Sept. 26, 1996) (citation omitted). “We refer to this as the ‘policy judgment' prong.” Gonzales, 814 F.3d at 1028 (citation omitted).
The DFE shields the government from liability even if its employees' actions were negligent. Gaubert, 499 U.S. at 323; Crane v. United States, 3:10-68-AC, 2011 WL 7277317, at *4 (D. Or. Nov. 29, 2011), report and recommendation adopted, 2012 WL 442748 (D. Or. Feb. 9, 2012) (“[i]f the challenged action or omission satisfies both prongs of the Berkovitz test, the government is shielded from liability for the employee's actions, even if they were negligent, constituted an abuse of discretion, or were the wrong choice under the circumstances”) (citing Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008)). “The United States bears the burden of proving the applicability of the discretionary function exception.” Terbush, 516 F.3d at 1128 (citing Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992)).
B. Discretionary Act
Plaintiff argues that BOR had a nondelegable and nondiscretionary duty under the Reclamation Safety and Health Standards (“BOR Standards”) to ensure VOID complied with BOR Standards and other relevant safety rules. Resp. 8-9 (citing BOR Standards (Horsburgh Decl. Ex. 5)). Additionally, Plaintiff argues, because BOR retained the right to reenter the Vale Project under the 1949 Contract “in the event VOID neglects or fails to make repairs[,]” that “implies that . . . BOR would maintain some form of oversight so that it would know if . . . VOID allowed the [Vale] Project, equipment, and facilities to fall into disrepair.” Id. at 8.
The United States acknowledges that “‘a safety or engineering standard operates to remove discretion under the FTCA when it is embodied in a specific and mandatory regulation or statute which creates clear duties incumbent upon the governmental actors.'” BOR Mot. 36 (quoting Kennewick Irr. Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989) (emphasis in original)). However, as the United States argues, BOR had discretion as to its supervision of VOID because “no federal law or policy”-including BOR Standards-“required that BOR force [VOID] to comply with [VOID]'s safety obligations” Id. at 36-37; see Alvarado, 2010 WL 3001391, at *6-7 (noting that the contractor was required to adhere to BOR Safety and Health Standards and finding that the Standards “fail to establish that the government had an actionable duty to inspect or maintain [the work site]” (emphasis added)). Moreover, “[t]he 1949 Contract gives BOR the option to inspect the [Vale] Project for compliance with the Contract, but it does not mandate any inspections.” BOR Mot. 38 (emphasis added); see Horsburgh Decl. Ex. 2 ¶18 (1949 Contract stating that BOR “may cause to be made from time to time a reasonable inspection of the transferred works to ascertain whether the terms of the contract are being met by [VOID]”); see also Alvarado, 2010 WL 3001391, at *7 (noting similar contractual provisions that allowed the government “from time to time to make an appropriate inspection of the facilities” and finding that the inspections were discretionary because “the government had a right to inspect [the work site] . . . [but] no duty to do so”).
At oral argument, Plaintiff cited Ninth Circuit cases to bolster his claim that “safety manuals” such as BOR Standards “give rise to a nondelegable duty and defeat the discretionary immunity defense[.]” Aug. Tr. 16-20 (citing Myers v. United States, 652 F.3d 1021, 1029-30 (9th Cir. 2011); Bolt v. United States, 509 F.3d 1028, 1032-33 (9th Cir. 2007); Marlys Bear Medicine v. U.S. ex rel. Sec'y of Dep't of Interior, 241 F.3d 1208, 1213 (9th Cir. 2001)). Plaintiff argued that, “an agency may have discretion whether or not to create rules or to assign responsibility, but once they create them, they have to follow them and it's no longer discretionary.” Aug. Tr. 16. However, in each case cited by Plaintiff, the court cited specific provisions in the government's own safety policies that imposed a “specific and mandatory” duty on government employees to perform specified, safety-related functions in the contexts presented.
In Meyers, for example, the Navy's safety manual for environmental cleanup operations specified that Navy personnel “shall ensure that safety plans are reviewed and accepted prior to issuing the Notice to Proceed” and provided that “[a]ll . . . health and safety plans . . . shall be reviewed prior to initiating site work[.]” 652 F.3d at 1029 (emphasis added). Given those “unambiguously mandatory terms[,]” the court found that the government's safety manual imposed a “mandatory and specific duty” on the Navy itself to ensure that environmental remediation or cleanup plans were reviewed and accepted prior to commencing any cleanup work. Id. The court acknowledged that the Navy may have “some discretion in the fulfillment of its duty to review the [safety plans],” but held that “it had no discretion under the policy . . . about whether or not to review the [plans] at all[.]” Id. at 1030.
In Bolt, the Ninth Circuit similarly held that the U.S. Army's Snow Removal Policy imposed “specific and mandatory” responsibilities on Army staff where it required that snow be removed from family housing parking areas on a military base “once per year in late February or March.” Id. at 1032-33. The court found that the policy requiring snow removal within a specific timeframe “expressly impose[d] a specific and mandatory duty to clear [the areas] of snow and ice once a year, before the end of March.” Id. at 1033. Based on those “specific and mandatory” requirements and the absence of any provisions allowing “the Army not to meet its yearly deadline to clear such areas,” the court held that “the discretionary function exception [does] not apply[.]” Id. at 1032.
Plaintiff cites multiple sections of BOR Standards to show that BOR had a nondiscretionary duty to ensure VOID's compliance with applicable safety standards, but the provisions cited by Plaintiff fall under the section entitled, “Contractor Requirements” and enumerate VOID and other contractor's obligations regarding “Required Safety Programs” (Section 3.3), “Required Meetings” (Section 3.4), “Contractor Monthly Accident Summary Report” (Section 3.8), and “Training Requirements” (Section 3.9). See Horsburgh Decl. Ex. 5 at 25-28. While those provisions contain mandatory language to describe the various responsibilities of contractors, Plaintiff does not cite, and this Court is not aware of, any language in those sections that impose any specific, direct, or mandatory duties on BOR like the polices in Meyers and Bolt.
Plaintiff also relies on Bear Medicine, 241 F.3d at 1208, to no avail. In Bear Medicine, the plaintiffs alleged-like Plaintiff in the current action-that the Bureau of Indian Affairs (“BIA”) was negligent in “supervising and managing the safety aspects of [its contractor]'s logging operation and ensuring that [the contractor] utilized appropriate safety precautions.” Id. at 1214. Similar to VOID's obligation to comply with BOR Standards in the present action, the logging contractor in Bear Medicine was required to comply with “‘prescribed safety practices and Federal Law.'” Id. In contrast to the present case, however, the BIA was required to perform regular inspections of the logging site “[p]ursuant to its own operational manual[.]” Id. at 1215. The BIA, in fact, “regularly inspected the logging site to ensure ‘adherence to basic policy and forestry practices[,]'” Id., and “had virtually complete control of the timbering operations on Indian lands” as “the only organization on the reservation with the appropriate safety expertise[.]” Id. at 1217. Given the BIA's “‘pervasive'” and “‘comprehensive'” control over the timbering operations, the Court held that the BIA “had a duty to ensure that basic safety practices were communicated and used at the logging site.” Id. at 1219-20 (citing United States v. Mitchell, 463 U.S. 206, 219, 222 (1983)).
In contrast to the BIA's on-site inspection practices and supervision of its contractor in Bear Medicine, see 241 F.3d at 1215, BOR did not manage VOID's operation of the Vale Project, and VOID did not rely on the expertise of BOR staff regarding the training of VOID employees or inspections of VOID equipment. See id. Unlike BIA's own operations manual, there is also no provision in BOR Standards or in BOR contracts with VOID that require BOR to perform regular safety inspections of the Vale Project or to ensure adequate safety training or equipment for VOID employees. See id.; see also Terbush, 516 F.3d at 1131 (noting that “the policies cited by the [plaintiffs] . . . [do not] contain mandatory and specific provisions dictating that impairment, safety and hazard ‘reviews' must occur in the manner they describe”).
This Court finds, therefore, that BOR had discretion regarding its supervision of VOID and as to inspecting the Vale Project for compliance with applicable safety standards. BOR had this discretion because BOR Standards and BOR contracts with VOID “do not contain mandatory and specific directive to which [BOR] had ‘no rightful option but to adhere,'” Terbush, 516 F.3d at 1131, and because no other “‘federal statute, regulation, or policy specifically prescribes a course of action for [BOR] . . . to follow[.]'” Id. at 1129 (National Park Service had discretion regarding safety inspections of climbing areas because applicable policies did not contain “mandatory and specific provisions dictating” such inspections); see also Akers v. United States, CIV.01-1348-HU, 2002 WL 32513820, at *8 (D. Or. Nov. 27, 2002) (U.S. Army had discretion regarding its supervision of the contractor's “adherence to the specific [safety] provisions of the construction contract” at the Umatilla Chemical Weapons Disposal Facility where “[the] [p]laintiffs fail to point to any regulation, statute, or self-imposed specific and mandatory obligation on the part of the United States to oversee safety in a particular manner”).
C. Policy Judgment
Regarding the “policy judgment” prong of a DFE analysis, the question is whether BOR's decisions regarding supervision of VOID and inspection of the Vale Project were “grounded in social, economic, and political policy[.]” Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996) (simplified). If the relevant policies permit discretion regarding the conduct at issue, then “[a court] must presume that an agent's acts or omissions are grounded in policy, whether or not [the court] suspect[s] that the discretion involved has been abused.” Gonzales, 814 F.3d at 1036 (citing Gaubert, 499 U.S. at 324). The existence of a regulation or policy that allows the government discretion “creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.” Gaubert, 499 U.S. at 324.
Having found that BOR had discretion regarding its supervision of VOID, this Court presumes that BOR's supervision of VOID was policy-based. See Gaubert, 499 U.S. at 324; see also Imus v. Uncompahgre Valley Water Users Ass'n, 22-CV-01460-NYW-GPG, 2023 WL 1993632, at *14 (D. Colo. Feb. 14, 2023) (finding that BOR's alleged failure to warn involved discretion and therefore “presum[ing] that BOR's decision-making was policy-based”) (citation omitted). Moreover, because Plaintiff's response omits any discussion of the “policy judgment” prong, that omission provides additional grounds for finding that the United States has satisfied the second prong of the DFE. Id. at *13 (noting that the plaintiffs “omit any discussion of the first prong of the [discretionary function] test in their response” and finding, “[a]ccordingly,” that “the first prong . . . is met here”).
Additionally, “[w]hen an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 819-20 (1984); accord, Akers, 2002 WL 32513820, at *8 (holding that United States' “decision to delegate safety to [the contractor] and the United States' exercise of discretion is susceptible to a policy analysis in that it involves a balancing of policies of personnel protection, environmental protection, and economic resources”). In Varig, the plaintiffs alleged that the Federal Aviation Administration (“FAA”) was negligent in adopting and administering a “spot-check system” to determine whether aircraft safety regulations were being followed. Id. The Supreme Court held that the DFE applied to both the agency's initial decision to adopt a spot-check system for safety compliance and the FAA's application of that system to specific planes involved in fatal crashes. Id. at 819. The Court explained that “[d]ecisions as to the manner of enforcing [safety] regulations directly affect the feasibility and practicality of the government's regulatory program” and “require the agency to establish priorities . . . by balancing the objectives sought to be obtained against such practical considerations as staffing and funding.” Id. at 820. The Court held that the FAA's adoption and application of its spot-check system involved both discretion and policy judgments and were therefore barred by the DFE. Id.
Like the FAA in Varig, BOR was “exercising discretionary regulatory authority of the most basic kind” when deciding the extent to which it supervised VOID's compliance with safety procedures. See 467 U.S. at 819. The United States asserts that BOR's decisions regarding its supervision of VOID involved “economic considerations including reducing BOR workforce commitments to irrigation operations and freeing up agency resources for other activities,” BOR Mot. 40-which Plaintiff does not dispute. Because BOR's oversight of VOID involved “such practical considerations as staff and funding[,]” Varig, 467 U.S. at 820, this Court finds that BOR's decisions regarding its oversight of VOID and the Vale Project were the type of policy decision that the DFE was designed to shield. See id.; see also Akers, 2002 WL 32513820, at *8 (holding that the United States' discretionary decision to delegate safety to its contractor and its exercise of that discretion were policy decisions and therefore barred by the DFE).
For these reasons, this Court finds that Plaintiff's claims are barred by the DFE. Thus, the United States' motion to dismiss should be granted, and Plaintiff's claims should be dismissed under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.
IV. Dismissal With Prejudice
Plaintiff asserts that “[t]o the extent the Court finds Plaintiff failed to sufficiently plead a claim or jurisdiction, Plaintiff requests leave to amend the Complaint.” Resp. 10. Plaintiff's request for leave to amend should be denied because any amendment would be futile.
A party may amend its pleading once as a matter of course or, thereafter, “only with the opposing party's written consent or with the court's leave.” Fed.R.Civ.P. 15(a)(1)-(2). “The court should freely give leave when justice so requires.” Id. However, the court need not grant leave to amend where the amendment “(1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014) (simplified). Amendment is futile “only if no set of facts can be proved . . . that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).
Here, this Court finds that any amendment to Plaintiff's claims against the United States would be futile in light of the DFE. Plaintiff asserts that it is possible that he could plead facts that would establish the direct liability of the United States through more specific and detailed allegations. Aug. Tr. 25. Even if this Court accepts that assertion, any of the United States' acts or omissions regarding the oversight of VOID, as well as other allegations relating to training, supervision, inspections, equipment upkeep were inherently discretionary acts subject to the DFE. No additional allegations against BOR will change that analysis. Accordingly, Plaintiff's request for leave to amend the allegations relating to BOR should be denied on the basis of futility, and the claims against the United States should be dismissed with prejudice.
V. State Law Claims against VOID and King
Plaintiff's remaining claims against VOID and King allege violations of state tort law and Oregon statutes and present a question regarding “the immunity provisions found in ORS 30.265(6)(a) and ORS 656.018” and whether they “deny Plaintiff a remedy in violation of Article I, section 10, of the Oregon Constitution.” Pl.'s Opp. VOID Mot. 9, ECF 14. At oral argument, the parties to the remaining claims agreed that if the claims against BOR were dismissed, this Court would no longer have any basis to maintain subject matter jurisdiction over the remaining claims against VOID and King. Aug. Tr. 27, 29. Accordingly, should Plaintiff's claims against the United States be dismissed, this Court should also decline to exercise supplemental jurisdiction over Plaintiff's remaining claims against VOID and King. See 28 U.S.C. § 1367(c)(3); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc) (“[I]n the usual case in which federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims”) (simplified).
Plaintiff also asserted that this Court should consider the substantive arguments in VOID and King's motion to dismiss because the matter has already been briefed and is ripe for ruling. Aug. Tr. 27-28. However, VOID and King's briefing on the remedies clause of the Oregon Constitution raises novel and complex issues of Oregon state law, which is another basis for this Court to decline to exercise jurisdiction. 28 U.S.C. § 1367(c)(1); cf. Blumenkron v. Hallova, 568 F.Supp.3d 1093 (D. Or. 2021) (declining to exercise supplemental jurisdiction over the plaintiff's state claims where they would require the court to “determine the validity of Oregon's complex land use planning structure under the Oregon state constitution”).
RECOMMENDATION
The United States' Motion to Dismiss, ECF 17, should be GRANTED, and Plaintiff's claims against the United States should be dismissed with prejudice. This Court should decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claims against VOID and King and those claims should be dismissed without prejudice. VOID and King's Motion to Dismiss, ECF 12, should be DENIED as moot.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.