Opinion
3:21-cv-00606-SB
06-29-2022
ROBERT V. SHIPMAN, Plaintiff, v. UNITED STATES OF AMERICA, acting through the UNITED STATES POSTAL SERVICE, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN United States Magistrate Judge.
Plaintiff Robert V. Shipman (“Shipman”) filed this action against the United States of America (“Defendant”), acting through the United States Postal Service (“USPS”), asserting that Defendant is liable for negligence under the Federal Tort Claims Act (“FTCA”). The district judge adopted this Court's findings and recommendation to grant Defendant's motion to dismiss Shipman's original complaint because the FTCA's intentional tort exception preserves the United States' sovereign immunity against claims arising out of a battery. (ECF Nos. 5, 16, 30.)
Now before the Court is Shipman's motion for leave to file an amended complaint. (ECF No. 19.) The Court has jurisdiction pursuant to 28 U.S.C. § 1331, and the parties have not consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. For the reasons that follow, the Court recommends that the district judge deny Shipman's motion.
I. LEGAL STANDARDS
“A court should ‘freely give leave [to amend] when justice so requires.'” Carrico v. City& Cnty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011) (citing FED. R. CIV. P. 15(a)(2)). “In determining whether to grant leave to amend, the district court considers the presence of any of the following four factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility.” Tadros v. Wilmington Tr., Nat'l Ass'n as Tr. to Citibank, N.A., No. 3:17-cv-01623-AA, 2018 WL 5298144, at *2 (D. Or. Oct. 25, 2018) (citing Owens v. Kaiser Found.Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)); see also Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999) (noting that courts should weigh the relevant factors “with all inferences in favor of granting the motion”). “Futility of amendment, however, ‘can, by itself, justify the denial of a motion for leave to amend.'” Id. (citing Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). “A proposed amendment is futile if it would not withstand a motion to dismiss.” Id. (citation omitted).
II. ANALYSIS
Shipman argues that the Court should grant him leave to amend his complaint because doing so “serves justice and promotes judicial efficiency.” (Pl.'s Mot. to Amend (“Pl.'s Mot.”) at 3.) Defendant responds that “the amendments do not cure the fatal defect that the claim arises out of conduct constituting a battery, rendering amendment . . . futile.” (Def.'s Opp'n to Pl.'s Mot. for Leave to Amend (“Def.'s Opp'n”) at 1.) The Court agrees.
Shipman based his claim for negligence in the original complaint on the actions of USPS employee Jerry Beers (“Beers”). (See generally Compl., ECF No. 1.) Shipman alleged that while he was loading mail into his truck, Beers began arguing with Shipman about his mail loading method and Beers became “agitated and angry” and “violently slung a large over-the-road (OTR) mail cart at [Shipman].” (Id. ¶¶ 10, 14.) Shipman attempted to “deflect and decelerate the cart, weighing more than 350 pounds, with both arms” but the “cart struck [Shipman's] left knee and strained his right arm.” (Id. ¶ 10.)
In recommending dismissal of the complaint, this Court relied on Shipman's own characterization of events in the complaint to determine that Beers's conduct constituted an intentional tort, despite Shipman's claim that his injury resulted from negligence. (See Findings and Recommendation (“F&R”) at 5, ECF No. 16.) Specifically, the Court found that “Shipman's factual allegations infer that Beers either intended to strike Shipman with his mail cart or intended to cause an imminent apprehension of contact, and that Beers's intentional conduct resulted in the mail cart striking Shipman.” (Id.) The FTCA's intentional tort exception to the government's sovereign immunity waiver clearly applied to the conduct Shipman alleged in his original complaint. See 28 U.S.C. § 2680(h) (the FTCA's sovereign immunity waiver does not apply to “[a]ny claim arising out of assault [or] battery”).
Shipman now seeks leave to re-characterize the events giving rise to his claim, by “remov[ing] the offending adjectives and prepositions from the complaint.” (Pl.'s Mot. at 4.) Shipman proposes to amend his complaint to allege that “[a]s [Shipman] was loading his truck, USPS employee Jerry Beers pushed a large [OTR] mail cart . . . [and t]he cart veered and struck” Shipman, causing injury. (Pl.'s Proposed First Am. Compl. ¶¶ 10, 12, ECF No. 19-1; see also Decl. of Robert V. Shipman ¶ 2, ECF No. 29-1, now stating that Shipman does not believe Beers intended to scare, strike, or injure him.) Shipman is clear that he “intends to amend his complaint to quell any concerns that this action arises out of . . . intentional conduct.” (Pl.'s Mot. at 4.) Shipman argues that the Court should allow the amendment because “[n]either the adjectives nor the propositions removed are essential to Shipman's claim or description of how the harm occurred.” (Id.)
The Court finds that Shipman cannot plead his way around facts he has already acknowledged are true in order to circumvent the FTCA's intentional tort exception. Shipman alleged in his original complaint that Beers was “agitated” and “angry” and “violently” slung the cart “toward” and “at” Shipman. (F&R at 5.) Shipman represented that those factual contentions have evidentiary support. SeeFED. R. CIV. P. 11(b)(3) (“By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (3) the factual contentions have evidentiary support[.]”).
The version of events Shipman now seeks to plead in the amended complaint suggest that Beers did not push the cart at or toward Shipman, but instead pushed the cart without any intent to strike or scare Shipman and the cart just happened to strike him. Shipman's new version of events contradicts his original version, and the Ninth Circuit has instructed that an “amended complaint may only allege ‘other facts consistent with the challenged pleading.'” Reddy v. LittonIndus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986)); see also Ritchie v. Staton, No. 03:17-cv-00844-AC, 2018 WL 2276241, at *8 (D. Or. Mar. 28, 2018), findings and recommendation adopted 2018 WL 2248450 (D. Or. May 16, 2018) (Mosman, J.) (denying leave to amend complaint where the plaintiff could not cure the pleading deficiencies “because to do so would require him to amend his complaint with facts directly contrary to those he has pleaded in his first two complaints”); cf.IV Solutions, Inc. v. Empire Healthcare Assurance, Inc., No. 20-56132, 2021 WL 5492974, at *1 (9th Cir. Nov. 23, 2021) (holding that the “district court did not abuse its discretion in refusing to provide [the plaintiff] with a second leave to amend” where “granting leave to amend would be futile because the only way [the plaintiff] could render its claim timely would be to contradict the allegations in its prior two complaints”).
Shipman alleges facts in his proposed amended complaint that are inconsistent with the facts he alleged in his original complaint. Consistent with the Ninth Circuit precedent discussed above, the Court finds that the proposed amendments are futile and the district judge should deny the motion for leave to amend.
Shipman also seeks to add a negligence claim for “failure to provide a safe workspace” and “failure to provide safe working equipment.” (Id. ¶¶ 18-21.) These allegations also arise out of the alleged battery, and therefore the proposed negligence claim is also barred by the FTCA's intentional tort exception to the United States' waiver of sovereign immunity.
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY Shipman's motion for leave to amend his complaint (ECF No. 19), and enter an order of dismissal with prejudice.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.