Lewis et al v. United States of America et al

MOTION to Dismiss for Lack of Subject Matter Jurisdiction

N.D.N.Y.June 28, 2017

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _________________________________________________ JEFFREY D. LEWIS and HEATHER LEWIS, Plaintiffs, v. UNITED STATES OF AMERICA Defendant. _________________________________________________ ) ) ) ) ) ) ) ) ) Civil Action No.: 5:17-cv-049 (GTS/ATB) NOTICE OF MOTION MOTION BY: United States of America, by Assistant United States Attorney, Ransom P. Reynolds DATE, TIME AND PLACE: August 3, 2017, 10:00 A.M., U.S. Courthouse and Federal Building, 100 South Clinton Street Syracuse, New York 13261 SUPPORTING PAPERS: Defendant’s Memorandum In Support Of Motion To Dismiss, and Declaration of Ransom P. Reynolds RELIEF SOUGHT: Dismissal of Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and to stay Discovery. PAPERS IN OPPOSITION: To be served pursuant to N.D.N.Y. L.R. 7.1 Dated: June 28, 2017 RICHARD S. HARTUNIAN United States Attorney By: /s/ Ransom P. Reynolds Ransom P. Reynolds Assistant United States Attorney Bar Roll No. 512035 Case 5:17-cv-00049-GTS-ATB Document 16 Filed 06/28/17 Page 1 of 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JEFFREY D. LEWIS and HEA TUER LEWIS, ) ) ) ) Plaintiff, v. UNITED STATES OF AMERICA, ) Civil Action No. 5:l 7-CV-049 ) (GTS/ATB) ) Date: June 28, 2017 Defendant. ) ) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS Respectfully submitted, RICHARDS. HARTUNIAN United States Attorney By: /s/ Ransom P. Reynolds Ransom P. Reynolds Assistant United States Attorney Bar Roll No. 512035 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 1 of 14 TABLE OF CONTENTS TABLE OF AUTHORITIES .. ........... .......................................... ......... .... .. ....... .......... .... .. .... ........ I I. Preliminary Statement .. ............... ..... .... ........................................... ..... ....... .... ... .... ......... .... .. ....... 1 II. Background ........... ... ........ .... ....... ....... .............. ...... ... .......... .. ..... ......... ...... .. ........ ............... ......... 2 A. Plaintiffs' Allegations .... ........ ............ ..... .. .... ....... ....... ... .............................. ... ............... 2 B. Plaintiffs' Claims for Relief .. ... ............. ..... ....... ......... .. .. ... ...... ...... .... .... ...... .. ... ... .......... 3 III . Argument ...................................... ......... .... .... ............. ........... ....... ... ......... ...... ....... .......... ......... . 3 A. Subject Matter Jurisdiction Is Lacking Over Plaintiffs' Claims .. ..... ........... .......... .... . 3 I. Standard of Review ......... ... ................................................................................ 3 2. The FTCA's Limited Waiver of Sovereign Immunity ........................ ... ......... . .4 3. All of Plaintiffs' Claims are Barred by the Feres Doctrine .... .. .............. ........... 5 1. The Feres Doctrine ............................ ......... ............. .............. ...... .......... 5 11. The Claims Brought by Plaintiff-Soldier for Injuries Occurring While on Active Duty were Clearly Incurred "Incident to Service" ... .. ............................... .......... ........... : .... .............. 7 n1. The Derivative Claims Brought by the Plaintiff-Soldier's Wife are Barred by the Fe res Doctrine" .. ....... ... ......... ............ ... .......... 8 B. The Court Should Stay Discovery ...... ....... .......... .................. ...... ............... .............. 10 IV. Conclusion ..... ................................................................................... ............. .. .. ........... .. ......... IO Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 2 of 14 TABLE OF AUTHORITIES Case Law Antoine v. United States, 791 F. Supp. 304 (D.D.C. 1992) aff'd, 990 F.2d 1377 (D.C. Cir. 1993) ....... ....... ........................ ............... ........... ........ ............ 8 Atkinson v. United States, 825 F.2d 202 (9th Cir. 1987) ....... ........................... ......... ...... ... ............. 8 Contemporary Mission Inc. v. United States Postal Serv. , 648 F .2d 97 (2d Cir.1981) ........... ...... 10 DeFont v. United States 453 F.2d 1239 (1st Cir.) ................................... ........................................ 9 Eastway Cons tr. Corp. v. City of New York, 762 F.2d 243 (2d Cir. l 985) .................................... l 0 Estate of McAllister v. United States, 942 F.2d 1473 (9th Cir. 1991) ...... .. .. ..... .......... .................... 5 Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994) .. ...... ... .. ............................... ... .. .. .... .... .4 Feres v. United States, 340 U.S. 135 (1950) ................................................. ... ............. ...... 1, 5, 7-9 Harrison v. United States , 479 F. Supp, 529 (D. Conn. 1979), aff'd, 622 F.2d 573 (2d Cir.) ...... ................ ............... ............. .... ......... ......... ............ .............. 9 Haynes v. United States , 44 F.3d 377 (5th Cir. 1995) .......... .. ........... .. ...... ... .. ... ................ ........ ...... 8 Jones v. United States, 112 F.3d 299 (7th Cir. 1997) ................... ..... .............................................. 7 Kendrick v. United States, 877 F.2d 1201 (41h Cir. 1989) ......................... ..... .. .. ................... ... ........ 9 Lane v. Pena, 518 U.S. 187 (l 996) ............................................................... ... ..... ..... ............. ... ...... 4 Library of Congress v. Shaw, 478 U.S. 310 (l 986) ..... ......... ........ .. ............... .. .......... ............... ....... 4 Loughney v. United States, 839 F.2d 186 (3d Cir. l 988) .......... .......... .... ... .................. ...... ....... .. .. ... 6 Madsen v. United States 841 F.2d 1011 (10th Cir. l 987) ................................ ........... ..................... 7 Malik v. Meissner, 82 F. 3d 560 (2d Cir. l 996) ..................... ............. .... .... ..... ..... ............... ............ 3 Mill ares Guiraldes de Tineo v. United States, 137 F.3d 715 (2d Cir. 1998) ......... ................. ......... 4 Makarova v. United States, 201 F. 3d 110 (2d Cir. 2000) ............................ ............. .. ... .... ....... ...... 3 Persons v. United States , 925 F.2d 292 (9th Cir. 1991 ) .................................. ............................ 8, 9 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 3 of 14 Richards v. United States, 176 F. 3d 652 (3d Cir. 1999) ............................................................. 3-6 Rivera v. United States, 928 F.2d 592 (2d Cir. 1991) ...................................................................... 5 Schoemer v. United States, 59 F.3d 26 (5th Cir. 1995) ................................................................... 9 Sheehan v. United States, 466 U.S. 975 (1984) ............................................................................... 9 Shipping Financial Servs. Corp. v. Drakos, 140 F.3d 129 (2d Cir. 1998) ...................................... 3 Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977) ........................................ 9 United States v. Johnson , 481 U.S. 681 (1987) .......................................................................... 5, 9 Wake v. United States, 89 F.3d 53 (2d Cir. 1996) ........................................................................... 6 Williams v. United States, 94 7 F.2d 3 7 (2d Cir. 1991 ) .................................................................... 4 United States v. King, 395 U.S. 1 (1969) ............................................ .............................. .............. .4 United States v. Mitchell, 463 U.S. 206 (1983) .......................................................................... . 3, 4 United States v. Sherwood, 312 U.S. 584 (1941) ............................................................................ .4 Statutes 28 U.S.C. § l 346(b) ("FTCA") ......... ..... ........... .......... .. .... ... ....... ... ... ......... .. ....... ........ ........ ..... l, 4, 5 28 U.S.C. § 240l(b) ..... ............ ........... ............................................................................................. 1 28 U.S.C. § 2671-2680 ........................................................................................ ...... ........ ........ .. 1, 5 Fed. R. Civ. P 12(b )( 1 ) .............................................................. ............................................... 1, 3, 6 Fed. R. Civ. P. 26(c) ............................... ............ ... .............. ..... .............. ................ ....................... 10 11 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 4 of 14 I. Preliminary Statement Defendant the United States of America submits this memorandum of law in support of its motion to dismiss the Complaint pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure on the ground that the Court lacks subject matter jurisdiction over each of Plaintiffs' claims under the doctrine of Feres v. United States, 340 U.S. 135 (1950). Defendant also moves to stay discovery pending resolution of this dispositive motion. This action is brought by a former member of the Active Duty Army and his spouse under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§1346(b), 2401(b), 2671-2680, and the common law, alleging injuries as a result of medical care received from on or about May 22, 2014, through on or about June 18, 2014. All of the claims asserted against the United States are jurisdictionally barred and must be dismissed. Plaintiffs' claims are squarely foreclosed by the Feres doctrine. In Feres, a decision that has been consistently reaffirmed, the Supreme Court held that the FTCA does not waive the United States' sovereign immunity "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U. S. at 146. This doctrine of intra-military immunity reflects a long-standing judicial recognition of the need to insulate the military from lawsuits that risk disrupting the hierarchical command relations among military personnel. There can be no dispute that Plaintiff Jeffrey Lewis ' (hereinafter "Plaintiff-Soldier") alleged injuries occurred in the course of activity that was incident to his military duty at Fort Indiantown Gap, Pennsylvania and subsequent treatment at Fort Drum, New York and/or Samaritan Medical Center in Watertown, New York. Additionally, Feres bars the claim asserted by Plaintiff Heather Lewis alleging loss of consortium, affection and services of her husband, and that she otherwise suffered damages as a result of her husband ' s permanent injuries and disabilities . Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 5 of 14 II. Background A. Plaintiffs' Allegations Plaintiff-Soldier was an Active Duty Staff Sergeant at the time of the allegations that form the basis of this Complaint. See Complaint, 40. Plaintiff-Soldier alleges that, while stationed at Fort Drum, and at temporary duty to Fort Indiantown Gap to participate in a leadership conference, he sustained an injury to his right lower extremity. Id. ,, 41-42. Plaintiff-Soldier initially sustained the injury on or about May 17, 2014, and waited until May 22, 2014 to seek medical treatment at Dunham U.S. Army Clinic at Fort Indiantown Gap. Id. , 43. On May 27, 2014, Plaintiff-Soldier went to Samaritan Medical Center Emergency Room where an ultrasound was performed and he was prescribed ibuprofen and provided crutches for ambulation due to pain. Id. , 46. He was referred to Guthrie Ambulatory Health Care Clinic (GAHC), Fort Drum, New York for follow-up care. Id., 47. On May 29, 2014, Plaintiff-Soldier went to GAHC for evaluation of right calf pain. Id. , 48. Plaintiff-Soldier returned to GAHC on or about June 5, 10, 11 , and 16, 2014 and received medical care and treatment, Id. , 49-50, while still on Active Duty. Plaintiff- Soldier was referred for an echocardiogram on or about June 16, 2014. Id. , 51 . On or about June 18, 2014, Plaintiff-Soldier went to St. Joseph's Hospital Health Center in Syracuse, New York and was diagnosed with right lower limb ischemia1• Id. , 52. On or about June 30, twelve days after he initially went to St. Joseph's Hospital Center, Plaintiff-Soldier underwent a mid-thigh amputation of his right leg at St. Joseph's Hospital. Id., 53. Plaintiff Heather Lewis is the spouse of Plaintiff-Soldier and has raised a claim for loss of consortium based on the alleged injuries to her husband. 1 A restriction in blood supply to tissues. 2 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 6 of 14 B. Plaintiffs' Claims for Relief Plaintiffs present three claims for relief. First, Plaintiff-Soldier alleges medical malpractice from treatment he received by and through the medical providers at the Troop Medical Clinic (TMC) at Fort Indiantown Gap and the GAHC. Second, he claims failure by the Government to provide an adequate informed consent. Plaintiff-Soldier alleges he was not adequately informed of the potential risks, benefits and consequences of, and the alternatives to, his choice of care and treatment. Third, Plaintiff Heather Lewis claims loss of consortium for alleged negligence, medical malpractice, and failure to obtain Plaintiff-Soldier' s informed consent. As relief for each of these claims, Plaintiffs seek the amount of thirty-million dollars ($30,000,000), together with interest, costs, and disbursements to the fullest extent permitted by law, and such other and further relief that the Court deems just and proper. III. Argument A. Subject Matter Jurisdiction Is Lacking Over Plaintiffs' Claims 1. Standard of Review On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule l 2(b )(1 ), a court assumes as true all material factual allegations set forth in the complaint. See Shipping Financial Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Plaintiff, however, carries the burden of establishing that subject matter jurisdiction exists over the complaint. See Malik v. Meissner 82 F. 3d 560, 562 (2d Cir. 1996); Makarova v. United States, 20 I F. 3d 110, 113 (2d Cir. 2000). If not waived, sovereign immunity deprives a court of subject matter jurisdiction over claims against the United States. See United States v. Mitchell, 463 U.S. 206, 212 (1983); Richards v. United States, 176 F. 3d 652, 654 (3d Cir. 1999). 3 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 7 of 14 2. The FTCA's Limited Waiver of Sovereign Immunity The United States retains sovereign immunity from lawsuits except '" as it consents to be sued'" and " 'the terms of its consent to be sued in any court define that court ' s jurisdiction."' United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 ( 1941 )). A "waiver of sovereign immunity ' cannot be implied but must be unequivocally expressed. "' Id. (quoting United States v. King, 395 U.S. 1, 4 (1969)). Such waivers, and their conditions, must be strictly applied against a claimant. See Library of Congress v. Shaw, 478 U.S. 310, 314, 318-21 ·(1986); see also Mil/ares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) ("Any limitation imposed by the waiver statute, whether they be substantive, procedural, or temporal , are to be strictly applied against the claimant."). Federal subject matter jurisdiction therefore does not exist in an action against the United States unless the United States has waived its sovereign immunity and the specific conditions for such waiver have been met. See Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471 , 475 (1994) ("Sovereign immunity is jurisdictional in nature."). Waivers of sovereign immunity and their conditions must be strictly applied against the claimant, with all ambiguities in terms of scope of the waiver resolved in favor of the Government. See Lane v. Pena, 518 U.S. 187, 192 (1996). If the Government has not waived its sovereign immunity, or if the conditions under which the Government has agreed to waive that immunity have not been met, federal subject matter jurisdiction does not exist. See Sherwood, 312 U.S. at 586; Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991). The United States has consented to suit under the FTCA only for certain torts committed by federal employees. See 28 U.S.C. § 1346(b); Richards, 176 F.3d at 654. With various exceptions, the FTCA provides that the United States shall be liable for tort claims "in the same 4 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 8 of 14 manner and to the same extent as a private individual under like circumstances." 28 U.S.C. §2674. The FTCA "provides that a suit against the United States is the exclusive remedy for a suit for damages for injury or loss of property ' resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment."' Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991) (quoting 28 U.S.C. §2679(d)(l)). Congress and the United States Supreme Court have carved out various exceptions to the FTCA's limited waiver of sovereign immunity, including, as relevant here, for claims that arise out of activity incident to one ' s military service. Plaintiffs premise all their claims on the FTCA and the common law. Complaint 1 I . However, for reasons discussed below, the United States has not waived its sovereign immunity for any of Plaintiffs' claims. 3. All of Plaintiffs' Claims are Barred by the Feres Doctrine i. The Feres Doctrine In what has become known as the Feres doctrine, the Supreme Court limited the applicability of the FTCA with regard to military personnel. See Feres, 340 U.S., 135; Richards, 176 F.3d at 654. In Feres , the Supreme Court unanimously held that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen when the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146; Richards, 176 F.3d at 654. This doctrine "provides a blanket of immunity to protect the government against allegations of negligence in military contexts." Estate of McAllister v. United States, 942 F.2d 1473, 1479 (9th Cir. 1991 ). The Supreme Court has affirmed the vitality of the Feres doctrine, as well as the doctrine ' s expansive reach. See United States v. Johnson, 481 U.S. 681 , 687-88 (1987) ("[T]his Court has never suggested that the military status of the alleged tortfeasor is crucial to the 5 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 9 of 14 application of the [Feres] doctrine ... .Instead, the Feres doctrine has been applied consistently to bar all suits on behalf of service members against the Government based on service-related injuries. We decline to modify the doctrine at this late date."). In Wake v. United States, the Second Circuit explained that courts have considered several factors in determining whether a service member's injuries were incurred "incident to service," including the individual's status as a member of the military at the time of the incident giving rise to the claim, the relationship of the activity to the individual ' s membership in the military service, the location of the conduct giving rise to the underlying tort claim, whether the activity was limited to military personnel, and whether the service member was taking advantage of a privilege or enjoying a benefit conferred as a result of military service. See Wake, 89 F.3d 53, 58; accord Richards, 176 F.3d at 655 . The Feres doctrine bars all suits on behalf of service members against the Government based on such service-related injuries. See Loughney v. United States, 839 F.2d 186, 188 (3d Cir. 1988). The military status of the claim is dispositive and a court need not conduct a case-by-case factual inquiry into whether judicial review of a service member's claim would unduly interfere with the military mission. See id. A finding that the Feres doctrine applies in a particular case is tantamount to finding that the suit against the United States is not within the scope of th~ FTCA and the Government has not waived sovereign immunity with regard to that claim. See Loughney, 839 F.2d at 188 n.3. Such a determination can be made on the basis of the pleadings pursuant to a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(.l). See id.; Wake , 89 F. 3d at 57 ("the proper vehicle for dismissing a Feres-barred FTCA claim is a dismissal for lack of subject-matter jurisdiction"). 6 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 10 of 14 ii. The Claims Brought by Plaintiff-Soldier for Injuries Occurring While on Active Duty were Clearly Incurred "Incident to Service" Plaintiffs' claims fall squarely within the parameters of Feres. In their First Cause of Action, Plaintiffs allege that the Plaintiff-Soldier was the victim of medical malpractice in military hospitals prior to his release from duty. In the Second Cause of Action, Plaintiffs allege that the Defendants failed to obtain an adequate informed consent. Both the First and Second Claims for Relief, allege, inter alia, failure to inform Plaintiff of his condition and/or options and failure to render proper medical treatment. These claims are jurisdictionally barred under the Feres doctrine. It is firmly established that medical malpractice claims lie well within the scope of Feres, for "courts have routinely applied Feres to bar medical malpractice claims that arose from treatment by military doctors of active-duty personnel. This is true even when the underlying injury that brought the service member to the hospital was not caused by the service, or was an elective military procedure." Jones v. United States, 112 F.3d 299, 302 (7th Cir. 1997) (internal citations omitted). In fact, two of the three lawsuits at issue in Feres concerned allegations of medical malpractice committed by Army surgeons. See Feres, 340 U.S. at 137. Accordingly, the Supreme Court held that these suits were barred because "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146. Consistent with Feres, courts have repeatedly held that treatment in a military facility itself constitutes activity " incident to service" for purposes of the doctrine. "[O]nce it is determined that a servicemember. . . was on active duty during the time military medical treatment was rendered, the treatment is necessarily incident to service and judicial inquiry ends." Madsen v. United States 841 F .2d 1011 , 1014 (10th Cir. 1987). Thus, "medical malpractice by a physician employed by 7 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 11 of 14 the military, in a military hospital, and in the course of treatment of a person in active military service has been clearly held to fall within the 'course of activity incident to service."' Haynes v. United States, 44 F.3d 377, 378-79 (5th Cir. 1995) (citation omitted) (applying Feres doctrine where plaintiff sought elective surgery); accord Persons v. United States, 925 F.2d 292, 295-96 (9th Cir. 1991) (holding that Feres barred medical malpractice claim brought by service member's family arising from a naval hospital 's alleged failure to warn of the service member's suicidal condition); Atkinson v. Uni.fed States, 825 F.2d 202,206 (9th Cir. 1987) (holding that Feres barred claims based on the negligent medical treatment of a service member by military doctors while the service member was on active duty) ; Harris v. Dept. of Air Force, Civ. A. No. 94-3965, 1995 WL 321748, at *3 (E.D. La. May 24, 1995) (holding it "beyond cavil" that medical malpractice by doctor employed by military falls within Feres doctrine), ajf'd, 77 F.3d 476 (5th Cir. 1995); Antoine v. United States, 791 F. Supp. 304, 305-06 (D.D.C. 1992) (applying Feres to claim of medical malpractice in military hospital because plaintiff "could not have been admitted . .. to the hospital except for his military status"), ajf'd, 990 F.2d 1377 (D.C. Cir. 1993). Accordingly, plaintiffs First and Second Causes of Action are barred by the Feres doctrine, and must be dismissed for lack of subject matter jurisdiction. iii. The Derivative Claims Brought by the Plaintiff-Soldier's Wife are Barred by the Feres Doctrine In the Third Cause of Action, Plaintiff-Wife alleges that she has lost the consortium, affection and services of her husband, and she has otherwise been caused to suffer damages as a result of her husband's permanent injuries and disabi lities. These claims as well cannot survive, as they are derivative of the alleged injuries sustained by her husband as a result of medical malpractice and lack of informed consent. 8 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 12 of 14 It is firmly established that the Feres doctrine bars claims for loss of consortium, companionship, or support suffered by family members of military personnel who are injured incident to service. See, e.g. Kendrick v. United States, 877 F.2d 1201, 1206-07 ( dismissing claim by Army Sergeant's son for loss of parental consortium); Schoemer v. United States, 59 F.3d 26, n.5 (dismissing claim by wife of National Guard member for loss of consortium); Persons v. United States, 925 F.2d 292, 297 (holding that Feres barred loss of consortium claim); Gaspard v. United States, 713 F.2d 1097, 1101-02 (5th Cir. 1983) (dismissing claims by wives of former service members for loss of consortium), cert. denied sub nom. Sheehan v. United States, 466 U.S. 975 (1984); DeFont v. United States 453 F.2d 1239, 1240 (1st Cir.) (per curiam) (Feres barred claim by child of deceased service member for loss of companionship)2, cert. denied, 407 U.S. 910 (1972); Harrison v. United States, 479 F. Supp, 529, 532-533 (D. Conn. 1979) (dismissing claim by Air Force captain's wife for loss of consortium), ajf'd, 622 F.2d 573 (2d Cir.), cert denied, 449 U.S. 828 (1980). Moreover, the claims brought by Plaintiff-Wife, no less than the claims asserted by Plaintiff-Soldier, necessarily implicate "the relationship between military personnel and the Government [which] has been governed exclusively by federal law." Feres, 340 U.S. at 146. The Johnson Court explained, Performance of the military function in diverse parts of the country and the world entails a "[s]ignificant risk of accident and injuries." Stencel Aero Engineering Corp. v. United States, supra, 431 U.S. at 672. Where a service member is injured incident to service - that is, because of his military relationship with the Government- it "makes no sense to permit fortuity of the situs of the negligence to affect the liability of the Government to [the] serviceman." 481 U.S., at 689. 2 The court in DeFont further noted that, to the extent the service member' s wife endeavored to raise a mental anguish claim arising from alleged inadequate care given to her deceased husband, any such claim would also be barred. See DeFont, 453 F.2d at 1240. 9 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 13 of 14 Accordingly, this Court lacks subject matter jurisdiction over the claims asserted by the spouse of the Plaintiff-Soldier. B. The Court Should Stay Discovery Rule 26(c) of the Federal Rules of Civil Procedure vests broad discretion in the district courts to control the discovery process. District courts may grant any appropriate orders to deny, limit or qualify discovery to protect a party or person "from annoyance, embarrassment, oppression, or undue burden." Fed. R. Civ. P. 26(c); see e.g. Contemporary Mission Inc. v. United States Postal Serv., 648 F.2d 97, 107 (2d Cir.1981) (affirming decision disallowing discovery prior to determination of the defendants ' motion for summary judgment). It is common practice in the Second Circuit to stay discovery pending resolution of dispositive matters. See, e.g. Eastway Cons tr. Corp. v. City of New York, 762 F.2d 243 , 251 (2d Cir. 1985) (affirming grant of summary judgment and stay of discovery). Any discovery in this case should await the Court ' s disposition of the instant motion because the Court ' s decision may eliminate the need for discovery or significantly limit the scope of discovery by narrowing the issues to be resolved. IV. Conclusion For the reasons stated above, this Court should dismiss the Complaint in its entirety and stay discovery pending resolution of this motion. 10 Case 5:17-cv-00049-GTS-ATB Document 16-1 Filed 06/28/17 Page 14 of 14 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JEFFREY D. LEWIS and HEATHER LEWIS, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. Civil Action No.: 5:17-CV-049 (GTS/ATB) DECLARATION OF ASSISTANT U.S. ATTORNEY RANSOM P. REYNOLDS RANSOM P. REYNOLDS, hereby declares under penalty of perjury the following pursuant to 28 U.S.C. § 1746: 1. I am an Assistant United States Attorney, of counsel to Richard S. Hartunian, United States Attorney for the Northern District of New York. I am familiar with the facts and procedural history in this case. 2. This declaration is filed to comply with Rule 7.1 of the Local Rules of the United States District Court for the Northern District of New York and is filed simultaneously in support of a Motion to Dismiss. 3. For the reasons stated in the accompanying Memorandum of Law, I believe that the position asserted by Defendant, United States of America, has merit. Dated: June 28, 2017 RICHARD S. HARTUNIAN United States Attorney By: /s/ Ransom P. Reynolds Ransom P. Reynolds Assistant United States Attorney Bar Roll No. 512035 Case 5:17-cv-00049-GTS-ATB Document 16-2 Filed 06/28/17 Page 1 of 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK Jeffrey and Heather Lewis, ) Civil Action No. 5:17-CV-049 Plaintiffs ) v. ) ) United States of America ) ) Defendant. ) CERTIFICATE OF SERVICE I hereby certify that on June 28, 2017, I electronically filed the foregoing DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS, AND DECLARATION OF RANSOM P. REYNOLDS with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to the following: Eric C. Nordby, Esq. Michael S. Porter, Esq. /s/ Nicole Falkowski Nicole Falkowski Legal Assistant Case 5:17-cv-00049-GTS-ATB Document 16-3 Filed 06/28/17 Page 1 of 1