Opinion
Case No. 2:02CV659K
October 9, 2003
ORDER
This matter is before the court on Third-Party Defendant United States of America's motion to dismiss. A hearing on the motion was held on September 30, 2003. At the hearing, the Third-Party Defendant was represented by Jan N. Allied, and Third-Party Plaintiffs were represented by Jesse C. Trentadue. After carefully considering the pleadings and memoranda submitted by the parties and the law and facts relating to this matter, and now being fully advised, the court renders the following Order.
BACKGROUND
The following facts are taken from the Third-Party Complaint. Plaintiff Karla J. Prudent has sued Defendants and Third-Party Plaintiffs Grand County and Tim Higgs under 42 U.S.C. § 1983 (2003), alleging that they are responsible for injuries she suffered when banned herbicides were intentionally sprayed in the windows of and around her trailer home. The sprayed property was owned by the United States and was under the control of the Bureau of Land Management ("BLM") of the Department of the Interior.Grand County and Mr. Higgs allege that the spraying was actually under the direction and control of the BLM and was carried out by its employees and agents. On Feb. 22, 2001, Ms. Prudent filed a Notice of Claim with the Department of the Interior under the Federal Tort Claims Act. The documentation attached to that notice indicates that the spraying was performed by BLM employee Dick Pacheco, who was acting within the scope of his employment with the federal government. The claim was settled and Ms. Prudent released her claims against the United States.
Nonetheless, Grand County and Mr. Higgs assert that the United States is "liable for the violation of Ms. Prudent's civil rights as well as for any damages" suffered as a result of the spraying. They request that any damages awarded in favor of Ms. Prudent and against them be "passed through" and become the responsibility of the United States of America.
DISCUSSION United States' Motion to Dismiss
Third-Party Defendants have filed a motion to dismiss Third-Party Complaint for lack of jurisdiction under Rule 12(b)(1) and failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The United States argues several theories in support of dismissal, each of which is discussed in turn below.
A. Sovereign Immunity
The United States first argues that because it has not consented to suit or waived its sovereign immunity, the court lacks jurisdiction and dismissal is proper under Fed.R.Civ.P. 12(b)(1). The ability to implead a third party is contingent upon whether the claim against the third party is derivative in nature and "depends on the outcome of the main claim." Hefley v. Textron, Inc., 713 F.2d 1487, 1498 (10th Cir. 1983). Because the original suit involves a 42 U.S.C. § 1983 action, which prohibits deprivations of civil rights under color of state law, the United States argues it cannot be joined as a third party. Federal courts have consistently held that the United States has not waived immunity under the civil rights provisions of Title 42. See, e.g., Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997) (section 1983 "applies to actions by state and local entities, not to the federal government").
In response to this argument, the Third-Party Plaintiffs argue that the Third-Party Complaint is brought solely on the basis of Rule 14 and not pursuant to a civil rights violation. However, there must be a substantive basis for bringing a Rule 14 claim, and Rule 14 is merely a procedural device that does not itself confer jurisdiction. Hefley, 713 F.2d at 1498 ("If there is no right to relief under the substantive law, impleader is improper."); Collini v. Wean United, Inc., 101 F.R.D. 408, 410 (W.D. Pa. 1983) ("Rule 14 only provides the procedural devi[c]e for impleader.").
Furthermore, Mr. Higgs and Grand County allege in their Third-Party Complaint that "[t]he United States of America . . . is liable for the violation of Ms. Prudent's civil rights as well as for any damages Ms. Prudent may have sustained as a result of the improper use of a banned substance and the spraying of her property as alleged." This language certainly suggests an attempt to bring the Third-Party Complaint pursuant to 42 U.S.C. § 1983. The court therefore agrees with the United States that the claim should be dismissed under Fed.R.Civ.P, 12(b)(1) for lack of jurisdiction.
B. Federal Tort Claims Act
Third-Party Plaintiffs also suggest in their memorandum that they have brought their Third-Party Complaint pursuant to the Federal Tort Claims Act ("FTCA") and not as a civil rights action. In response, the United States argues that even if the Third-Party Complaint is read to assert a true FTCA claim, this court could not exercise jurisdiction over it because a proper underlying state law tort claim has not been alleged.
The FTCA states that the federal government has waived immunity from suit "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." 28 U.S.C. § 1346(b)(1) (2003). The "law of the place" is the law of the state — "the source of substantive liability under the FTCA." FDIC v. Meyer, 510 U.S. 471, 477-78 (1994).
The United States argues that a private person would not be liable to the Third-Party Plaintiffs under Utah law. Because Mr. Higgs and Grand County request that "any damages awarded in favor of Ms. Prudent and against Third-Party Plaintiffs be passed through and become the responsibility of the United States of America . . .," the United States argues that recovery is sought on theories of contribution and implied indemnity. But under the Utah Liability Reform Act, a "defendant is not entitled to contribution from any other person." Utah Code Ann. § 78-27-40(2) (2000). The Utah Court of Appeals has interpreted this provision as also prohibiting claims for implied indemnity. Nat'l Serv. Indus., Inc. v. B.W. Norton Mfg. Co., 937 P.2d 551, 555-56 (Utah Ct.App. 1997). Therefore, the United States argues, Grand County has failed to assert a cognizable state law claim.
Conversely, Grand County and Mr. Higgs assert that a Rule 14 action is not the same as contribution or implied indemnity. The sole case they cite for this idea is Howard v. Ward County, 418 F. Supp. 494 (D.C.N.D. 1976), in which the court describes a third-party action as being "in the nature of indemnity or contribution." Id. at 507. Howard thus seems to support the federal government's argument better than it supports the assertions of Mr. Higgs and Grand County. Defendants have failed to articulate how the remedy they seek is different from contribution or implied indemnity.
Grand County and Mr. Higgs next argue that even if the Third-Party Complaint is construed as seeking contribution or implied indemnity, Utah courts have not abolished contribution and implied indemnity for intentional torts such as the spraying at issue here. This is incorrect. In 1998, the Utah Supreme Court stated:
[W]e find that [the Liability Reform Act's] definition of `fault' encompasses both negligent and intentional conduct. We look to the statute's plain language as the best evidence of legislative intent. When reduced to its essentials, the statute's definition of fault includes `any . . . act . . . proximately causing or contributing to injury or damages.' Clearly an intentional tort such as battery is an act that proximately causes or contributes to injury or damage. Thus, we conclude that the legislature included intentional acts in its comparative fault scheme.Field v. Boyer Co., 952 P.2d 1078, 1080 (Utah 1998) (internal citations omitted).
We therefore hold that a proper FTCA claim has not been asserted because the underlying state law is not cognizable. The Third-Party Complaint must be dismissed under Fed.R.Civ.P. 12(b)(1) on these grounds as well.
C. Plaintiff's Release of Claims
Next, the federal government points out that Prudent settled an administrative claim under the Federal Tort Claims Act with the United States, and in return, released the United States from further liability. The FTCA provides that "[t]he acceptance by the claimant of any . . . settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States . . . by reason of the same subject matter." 28 U.S.C. § 2672. The federal government therefore asserts that the Third-Party Complaint should be dismissed because the release precludes any claim arising from the same subject matter. This is especially so, the United States contends, because the Third-Party Complaint alleges that the United States is liable to Ms. Prudent rather than liable to Mr. Higgs and Grand County. Specifically, the Third-Party Complaint states: "The United States of America, therefore, is liable for the violation of Ms. Prudent's civil rights as well as for any damages Ms. Prudent may have sustained as a result of the improper use of a banned substance and the spraying of her property as alleged."
The Defendants argue that Ms. Prudent's release does not absolve the federal government of liability to them. They cite two cases for this principle, Nelson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints, 935 P.2d 512 (Utah 1997), and Henry Fuel Company v. White Bread, 236 F.2d 742 (D.C. Cir. 1956), neither of which is very helpful.
Nelson dealt with the question of whether the release of a negligent tortfeasor, a youth supervisor in this case, also released the tortfeasor's master, the church, under principles of vicarious liability. Id. at 512. The Utah Supreme Court ultimately held that the church could still be liable, especially because the claimant reserved his claims against the church. Id. at 514. This case is not persuasive here, where there is no master-servant relationship and no reservation of rights. Nor is Henry persuasive. That case involved a time and jurisdiction in which a negligent joint tortfeasor had a right to seek contribution, and the court determined that right trumped the release at issue. 236 F.2d at 746.
At oral argument, Third-Party Plaintiffs argued that the Third-Party Complaint alleges liability to Grand County and Mr. Higgs when it states "[t]he spraying of Ms. Prudent's residence with the allegedly illegal herbicide would have been under the direction and control of the United States of America, Department of Interior Bureau of Land Management." Yet in the very next sentence, the Third-Party Complaint states that "any spraying of Ms. Prudent's residence would have been carried out by employees and agents of the United States of America." The court fails to see how Grand County can join the United States and force it to pay damages for performing the spraying, the very act upon which settlement was based and for which liability was released. Fairness dictates that the United States should not have to pay the plaintiff directly, then face the possibility of paying her again through a third-party action. Ms. Prudent's release of claims against the United States also warrants dismissal of the Third-Party Complaint.
This decision to disallow impleader of the United States does not mean, however, that fault could not be allocated to the federal government should Ms. Prudent's suit against Mr. Higgs and Grand County go to trial. The United States need not be a party to this action to be assigned fault. See Utah Code Ann. § 78-27-38(4)(a) (2000) (fact-finder may allocate fault to a person whether person is joined as a party or not). Such allocation could possibly reduce the liability of Grand County and Mr. Higgs.
D. Immunity Under the FTCA for Assault and Battery
Finally, the United States asserts that it has not waived immunity under the FTCA for the actions of Dick Pacheco because such actions constituted the intentional tort of assault and battery. The FTCA states that the United States has not waived sovereign immunity for "[a]ny claim arising out of assault [or] battery." 28 U.S.C. § 2680(h). The Third-Party Complaint arises out of an alleged assault and battery, the United States contends, because this court previously held in its Order denying dismissal of Plaintiff s case that Ms. Prudent had stated the elements of assault and battery against Mr. Higgs. The Third-Party Complaint thus also alleges that Mr. Pacheco's conduct met the elements of assault and battery, even though the Third-Party Complaint does not mention those terms. The court agrees that the Third-Party Complaint also fails because the allegations contained therein constitute allegations arising from assault and battery, and the United States has not waived immunity for this intentional tort.