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Holdsworth v. United States

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
Sep 27, 2012
11-CV-889A(F) (W.D.N.Y. Sep. 27, 2012)

Opinion

11-CV-889A(F)

09-27-2012

JOSHUA HOLDSWORTH, Plaintiff, v. UNITED STATES OF AMERICA, L&D JOHNSON PLUMBING & HEATING, INC., a/k/a U.S. Veterans Constructions & Management Corp., Defendants.

APPEARANCES: HOGANWILLIG Attorneys for Plaintiff TERESA A. BAILEY, of Counsel WILLIAM J. HOCHUL, JR. UNITED STATES ATTORNEY Attorney for Defendant United States GAIL Y. MITCHELL, Assistant United States Attorney, of Counsel BARTH, SULLIVAN & BEHR Attorneys for Defendant L&D Johnson Plumbing LAURENCE D. BEHR, of Counsel


DECISION and ORDER

APPEARANCES: HOGANWILLIG

Attorneys for Plaintiff

TERESA A. BAILEY, of Counsel

WILLIAM J. HOCHUL, JR.

UNITED STATES ATTORNEY

Attorney for Defendant United States

GAIL Y. MITCHELL,

Assistant United States Attorney, of Counsel

BARTH, SULLIVAN & BEHR

Attorneys for Defendant L&D Johnson Plumbing

LAURENCE D. BEHR, of Counsel

In this Federal Tort Claims Act action, Defendant, United States of America, ("Defendant") moved to dismiss based on a lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1) ("Defendant's motion") (Doc. No. 14). By papers filed April 10, 2012, Defendant asserts that it is immune from liability based on the discretion any function exception to the FTCP and that Plaintiff's action against it is also barred under the Independent Contractor Doctrine (Doc. No. 22 ¶ ¶ 36-37). In opposition, Plaintiff contends he is unable to oppose Defendant's motion without adequate discovery. Co-Defendant, L&D Johnson Plumbing & Heating, Inc. ("Co-Defendant L&D") also opposes Defendant's motion on the merits and alternatively requests discovery directed to the two grounds asserted in support of Defendant's motion (Doc. No. 23 at 18). Upon review of the Defendant's motion papers, the opposition of Plaintiff and Co-Defendant L&D, the court finds that discovery limited to Defendant's assertion of the discretionary function exception and independent contractor doctrine as grounds for Defendant's motion is warranted. See Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004) (citing Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006, 1011 (2d Cir. 1986) ("party asserting jurisdiction [ ] permitted discovery of facts demonstrating jurisdiction")). Such limited discovery may proceed for a 90-day period commencing upon service of this Decision and Order. Defendant's motion (Doc. No. 14) is therefore DISMISSED without prejudice to refiling within 30 days following the end of the 90-day discovery period. An order scheduling Plaintiff's and Co-Defendant L&D's further responses and Defendant's reply will be entered by the court following the expected re-filing of Defendant's motion which shall include consideration of the results of the limited discovery permitted hereunder. SO ORDERED.

______________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE
Dated: September 27, 2012

Buffalo, New York


Summaries of

Holdsworth v. United States

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
Sep 27, 2012
11-CV-889A(F) (W.D.N.Y. Sep. 27, 2012)
Case details for

Holdsworth v. United States

Case Details

Full title:JOSHUA HOLDSWORTH, Plaintiff, v. UNITED STATES OF AMERICA, L&D JOHNSON…

Court:UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Date published: Sep 27, 2012

Citations

11-CV-889A(F) (W.D.N.Y. Sep. 27, 2012)