United States District Court, S.D. Georgia, Augusta Division
For Benertha Spencer, Plaintiff: John Carlton Fleming, LEAD ATTORNEY, PRO HAC VICE, Reynolds, Horne & Survant, Macon, GA; Michael G. Horner, W. Carl Reynolds, LEAD ATTORNEYS, Reynolds, Horne & Survant, Macon, GA.
For United States Of America, Defendant: John Thomas Clarkson, LEAD ATTORNEY, U.S. Attorney's Office - Savannah, Savannah, GA; Tiffany M. Mallory, LEAD ATTORNEY, U.S. Attorney's Office - AUG, Augusta, GA.
For Otis Elevator Company, Defendant: M. Diane Owens, Swift, Currie, McGhee & Hiers, LLP, Atlanta, GA.
For Bayline Lift Technologies, Defendant: Alisa W. Ellenburg, LEAD ATTORNEY, Vernis & Bowling of Atlanta, LLC, Atlanta, GA.
HONORABLE J. RANDAL HALL, UNITED STATES DISTRICT JUDGE.
This matter is now before the Court on the United States' Motion to Dismiss. (Doc. 20.) Plaintiff Benertha Spencer claims she suffered injuries when an elevator malfunctioned at the Veterans Affairs (" VA" ) Medical Center in Augusta, Georgia. She brings this action under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 2671 et seq., alleging negligence on the part of the United States due to the VA's failure to exercise the required level of care to keep its premises safe and its delegation of a non-delegable duty. (Compl., Doc. 1, ¶ 9.)
On August 22, 2014, the United States filed the instant motion to dismiss averring that Ms. Spencer's FTCA claim falls within the discretionary function exception to the FTCA's waiver of the United States' sovereign immunity. (U.S. Br., Doc. 20, at 1, 6-18.) Apart from this jurisdictional issue, the United States further asserts, pursuant to Federal Rule of Civil Procedure 12(b)(6), that Ms. Spencer has not stated a plausible claim on which the Court could grant relief because she does not allege " basic facts" implicating any United States employee in negligent conduct. (Id. at 18.) Upon emergency motion, the Court granted Ms. Spencer a 60-day extension to respond to the United States' motion and to depose three individuals so as to investigate " possible active negligence" by a United States employee revealed during discovery. (Docs. 23, 27.) The 60-day extension has expired, and Ms. Spencer -- who is represented by counsel -- has not responded to the United States'
motion. Thus, pursuant to the Local Rules, the Court deems it unopposed. L.R. 7.5, SDGa. (" Failure to respond within the applicable time period shall indicate that there is no opposition to a motion." )
The Eleventh Circuit has noted that a district court may dismiss a case when a party, represented by counsel -- as in the instant case -- fails to file a response to a motion to dismiss. See Magluta v. Samples, 162 F.3d 662, 664-65 (11th Cir. 1998) (citing LR 7.1(B), N.D.Ga.); see also Sampson v. Fulton Cnty. Jail, 157 F.App'x 242, 243 (11th Cir. 2005) (discussing the scope of Magluta); Benjamin v. Am. Airlines, Inc., No. CV 213-150, 32 F.Supp.3d 1309, 2014 WL 3365995, at *6 n.9 (S.D. Ga. July 9, 2014). Such a dismissal is, however, within the discretion of the district court. Magluta, 162 F.3d at 664-65. At the same time, " there is a strong policy of determining cases on their merits" in this Circuit. In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003). Thus, despite Ms. Spencer's failure to defend her claims, the Court will assess the FTCA on the merits.
On June 17, 2014, Plaintiff filed suit against the United States, Otis Elevator Company (" Otis" ), and Bayline Lift Technologies, LLC (" Bayline" ) as joint tortfeasors responsible for her injuries when she fell in an elevator at the VA Medical Center that malfunctioned and came to " an abrupt stop." (Compl. at ¶ ¶ 7, 8.) Plaintiff alleges that the United States was negligent in (1) " failing to exercise ordinary care in keeping their premises safe" as required by Georgia statute; (2) " failing to exercise extraordinary care and diligence regarding the use of elevators" as required by Georgia statute; (3) " delegating [its] non-delegable duty to exercise extraordinary care and diligence regarding the use of elevators; " (4) " failing to maintain the property and in allowing the property to become unsafe; " and (5) otherwise acting negligently. (Id. ¶ 9.)
The United States and Otis entered into a contract for the maintenance and repair of the elevators located at the Augusta VA Medical Center in September 2011. (Doc. 20, Ex. A (" Otis VA Contract" ), at 1, 5 § B.l.l.) The Otis VA Contract mandated that Otis maintain control over the manner and method in which the ...