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Dishmond v. United States

United States District Court, S.D. Georgia, Augusta Division

October 9, 2014

MICHAEL DISHMOND, individually and as the administrator of the estate of Teresa Dishmond, deceased, Plaintiff,


J. RANDAL HALL, Magistrate Judge.

Presently pending before this Court is Plaintiff's motion to continue the Government's partial summary judgment motion and to allow limited discovery. (Doc. 19.) For the reasons set forth below, the Court GRANTS Plaintiff's request for limited discovery and provides the parties with NINETY (90) DAYS to address Laura Lee's employment status. Thereafter, Plaintiff shall have TEN (10) DAYS to respond to Defendant's motion for partial summary judgment and, in the alternative, to change venue. Plaintiff is DIRECTED to file its response to the remaining motion - Defendant's motion to dismiss in part - within FOURTEEN (14) DAYS of this Order.

I. Background

Plaintiff filed his complaint on March 31, 2014, asserting various claims[1] against the United States following a vehicle collision in Judith Basin County, Montana on September 2, 2011. (Compl. ¶ 14.) Plaintiff suffered various injuries and his wife, Teresa Dishmond, did not survive the accident. (Id.) Plaintiff alleges that Laura Lee, the driver of the other vehicle, was hauling mail for the United States Postal Service ("USPS") at the time of the collision pursuant to a contract awarded to L&L Express Transport ("L&L"). (See Compl. ¶ 17-26.) Plaintiff alleges that Laura Lee and Lawrence Hurley each owned 50 percent of L&L at the time of the accident. (Id. ¶ 27.)

Defendant filed three motions in response to the complaint: (1) a motion for partial summary judgment; (2) a motion to dismiss in part; and, in the alternative, (3) a motion to transfer venue. (Doc. 14.) The motion for partial summary judgment asserts that Claims I and II fail as a matter of law because neither L&L nor Laura Lee were federal employees at the time of the accident. (Id.) Defendant moves to dismiss Claim III because Montana law does not consider hauling mail and driving a truck to be inherently dangerous activities. (Id.) Defendant also seeks dismissal of Claim IV because "claims regarding the hiring and retention of contractors... are barred by the discretionary function exception [of] the Federal Tort Claims Act[.]" (Id. at 2.) Finally, and in the alternative, Defendant moves to transfer the case to the United States District Court for the District of Montana based on forum non conveniens. (Id.)

Plaintiff responded with the present motion to continue the partial summary judgment motion and to allow for limited discovery. (Doc. 19.) Plaintiff specifically seeks a limited discovery period of 90 days to prepare a response to Defendant's motion for summary judgment, and similarly requests that the Court defer ruling on all pending motions until such discovery has concluded.

I. Discussion

Because Plaintiff's motion refers to three motions filed by Defendant, the Court will address each separately.

A. Motion for Partial Summary Judgment

"Summary judgment is premature when a party is not provided a reasonable opportunity to discover information essential to his opposition." Smith v. Fla. Dep't of Corrections , 713 F.3d 1059, 1064 (11th Cir. 2013). Additionally, Federal Rule of Civil Procedure 56(d) provides that, when facts are unavailable to the non-moving party, the court may, inter alia, allow time to take discovery. Fed.R.Civ.P. 56(d).

Defendant moved for partial summary judgment on two claims, asserting that Plaintiff cannot recover under the Federal Tort Claims Act ("FTCA") for negligence by an independent contractor and its employees. For these two claims, Defendant argues that neither Laura Lee nor L&L were employees of the federal government, and thus Plaintiff cannot succeed on these claims as a matter of law.

No discovery has taken place; in fact, on July 31, 2014, the United States Magistrate Judge granted the parties' request for a stay of discovery pending this Court's resolution of the pending motions. (Doc. 25.) Here, Plaintiff requests 90 days of limited discovery "to determine the parameters of the contractual relationship between the USPS and L&L." (Doc. 19 at 1-2.) The Court agrees with Plaintiff that, given the early stage of litigation, Plaintiff has not had any "opportunity, much less a reasonable one, to conduct discovery" on this issue. Dutton v. United States, No. 6:13-cv-58, Doc. 15 (S.D. Ga. Aug. 19, 2013). It would be premature for this Court to rule on the motion for partial summary judgment. The Court also finds that proceeding with full discovery at this point would be inappropriate. Accordingly, the parties shall have NINETY (90) DAYS from the date of this Order to conduct discovery limited to the issue of Lee's employment status. No discovery is permitted on any other subject matter. Consequently, the Court hereby DEFERS ruling on Defendant's motion for partial summary judgment and Plaintiff shall have TEN (10) DAYS after the close of the limited discovery period to file his response brief.

B. Motion to Dismiss in Part

In considering a motion to dismiss under Rule 12(b)(6), the court tests the legal sufficiency of the complaint, not whether the plaintiff will ultimately prevail on the merits. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974). Motions to dismiss "should... be resolved before discovery begins" because "[s]uch a dispute always presents a purely legal question" and "there are no issues of fact because the allegations contained in ...

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