Williams v. United States of America

MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim

E.D. La.February 17, 2017

Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA THOMAS WILLIAMS CIVIL ACTION NO. 16-14830 VERSUS SECTION “A” (3) UNITED STATES OF AMERICA JUDGE ZAINEY MAG. JUDGE KNOWLES * * * * * FEDERAL DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION AND FAILURE TO STATE A CLAIM NOW INTO COURT, through the undersigned Assistant United States Attorney, comes Federal Defendant, the United States of America (“United States”), and respectfully moves to dismiss the above-captioned matter for the following reasons. First, the Court must dismiss this case pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because the independent contractor exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, divests this Honorable Court of subject-matter jurisdiction. Although the FTCA is a limited waiver of the United States’ sovereign immunity, that waiver does not extend to the alleged torts of independent contractors. See id. Plaintiff Thomas Williams’ rolling walker was provided to him pursuant to a contract between the U.S. Department of Veterans Affairs (“VA”) and Clarke Health Care Products, Inc. (“Clarke”). See Richards & Pierce Decl. Thus, any alleged negligence on the part of Clarke-an independent contractor-cannot be imputed the VA. Second, the Court should dismiss this case pursuant to Rule 12(b)(6) because Plaintiff has failed to sufficiently plead a claim upon which relief may be granted pursuant to Louisiana substantive tort law. La. Civ. Code arts. 2317 & 2317.1 require a plaintiff to plead five elements in order to state a successful claim. See, e.g., Robinson v. Meaux, 23 So. 3d 1025, 1028 (La. App. Case 2:16-cv-14830-JCZ-DEK Document 8 Filed 02/17/17 Page 1 of 2 Page 2 of 2 3d Cir. 2009); Jones v. Hancock Holding Co., 707 F. Supp. 2d 670, 673 (M.D. La. 2010). Plaintiff here has failed to plead any facts regarding those five elements which, if construed as true, would entitle him to relief. As a result, his negligence claim fails. WHEREFORE, for the reasons set forth in the attached supporting memorandum, Federal Defendant, the United States of America, respectfully requests this Honorable Court to grant the instant motion, thereby dismissing this matter pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction, and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. New Orleans, Louisiana, this 17th day of February, 2017. Respectfully submitted, KENNETH ALLEN POLITE, JR. UNITED STATES ATTORNEY /s/ K. Paige O’Hale K. PAIGE O’HALE NC Bar No. 44667, LA Bar No. 35943 Assistant United States Attorney 650 Poydras Street, Suite 1600 New Orleans, Louisiana 70130 Telephone: (504) 680-3155 Fax: (504) 680-3174 Paige.OHale@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served electronically and/or by first-class mail, postage prepaid, on this 17th day of February, 2017, on counsel for all parties. /s/ K. Paige O’Hale_____ K. PAIGE O’HALE Assistant United States Attorney Case 2:16-cv-14830-JCZ-DEK Document 8 Filed 02/17/17 Page 2 of 2 Page 1 of 11 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA THOMAS WILLIAMS CIVIL ACTION NO. 16-14830 VERSUS SECTION “A” (3) UNITED STATES OF AMERICA JUDGE ZAINEY MAG. JUDGE KNOWLES * * * * * FEDERAL DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION AND FAILURE TO STATE A CLAIM MAY IT PLEASE THE COURT: Federal Defendant, the United States of America (“United States”), through the undersigned Assistant United States Attorney, respectfully submits the following memorandum in support of its motion to dismiss the above-captioned matter. First, this case must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because the independent contractor exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, divests this Honorable Court of subject-matter jurisdiction. Second, the Court should dismiss this case pursuant to Rule 12(b)(6) because Plaintiff has failed to sufficiently plead a claim upon which relief may be granted pursuant to substantive Louisiana tort law. Accordingly, for the reasons set forth in greater detail below, the United States respectfully urges the Court to dismiss this matter. I. FACTUAL AND PROCEDURAL BACKGROUND This lawsuit arises out of the United States’ alleged negligence at the Veterans Affairs Medical Clinic (“VAMC”) in New Orleans, Louisiana. See R. Doc. 1 at ¶ III(1). According to Plaintiff, on March 16, 2015, a rolling walker that he received at the direction of the VAMC “collapsed because the left front wheel dislodged” while he was attempting to sit on it. Id. He Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 1 of 11 Page 2 of 11 contends that he sustained “injuries to his back, leg, hip, shoulder, and neck” as a result of the fall. Id. at ¶ III(2). On March 10, 2016, Plaintiff submitted an administrative claim on Standard Form 95 to the VAMC pursuant to the FTCA, which was denied. Id. at ¶ III(2)-(3); see also Caine Decl. at ¶ 4 & Exh. A thereto. Consequently, Plaintiff initiated this matter on September 20, 2016. R. Doc. 1. Plaintiff alleges that the “Department of Veteran[s] Affairs was negligent in its failure to inspect the walker to make sure it was working properly before issuing the walker” to him. Id. at ¶ (III)(6). He further contends that “United States is liable [for his injuries] under the [FTCA] because, under Louisiana law, a hospital is liable for its failure to inspect any equipment that it issues to patients.” Id. at ¶ IV(7). In order to provide medical care to veterans of the United States Armed Forces, the U.S. Department of Veterans Affairs (“VA”) purchases goods and services pursuant to myriad contracts. Richards Decl. at ¶ 2. One of those contracts-No. VA797-P-0185-governed the procurement and provision of rolling walkers during the agreement’s term. Id. at ¶¶ 3-4; Pierce Decl. at ¶ 6. Clarke Health Care Products, Inc., of Oakdale, PA (“Clarke”) is the vendor that contracted to supply such rolling walkers. Richards Decl. at ¶ 4. The rolling walker at issue in Plaintiff’s Complaint was ordered under Contract No. VA797-P-0185 on April 1, 2013, and was delivered directly to Plaintiff’s home address in Houma, Louisiana. Pierce Decl. at ¶¶ 6-7 & Exhs. A, B thereto. The contract’s terms make Clarke the responsible party for delivering a rolling walker in merchantable and fit condition to Plaintiff’s home. Richards Decl. at ¶¶ & Exhs. A, B thereto. Thus, the FTCA’s independent contractor exception divests this Court of subject-matter jurisdiction, and Plaintiff cannot state a cognizable negligence claim pursuant to La. Civ. Code arts. 2317 & 2317.1. Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 2 of 11 Page 3 of 11 II. STANDARDS OF REVIEW A. Fed. R. Civ. P. 12(b)(1) A Rule 12(b)(1) motion to dismiss challenges a Federal court’s subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks and citation omitted). Furthermore, a Rule 12(b)(1) motion “permits the court to consider a broader range of materials” than when resolving a Rule 12(b)(6) motion. Williams v. Wynne, 533 F.3d 360, 364, 365 n.2 (5th Cir. 2008). Consequently, when considering a Rule 12(b)(1) motion, the Court may rely on (1) the complaint alone, presuming the allegations to be true; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts and by the Court’s resolution of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also Barrera- Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). Finally, the party asserting jurisdiction-here, Plaintiff-bears the burden of establishing that the Court possesses jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). B. Fed. R. Civ. P. 12(b)(6) Under Rule 12(b)(6), a district court may dismiss a complaint, or any part of it, for failure to state a claim upon which relief may be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). As the Fifth Circuit explained in Gonzales v. Kay, “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 3 of 11 Page 4 of 11 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court recently expounded upon the Twombly standard, explaining that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 128 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955, 167 L.Ed.2d 929). “A Claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. It follows that “where the well- pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-that the pleader is entitled to relief.” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). 577 F.3d 600, 603 (5th Cir. 2009). Furthermore, the Court cannot look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing a plaintiff’s complaint, the Court must accept all well-pleaded facts as true and liberally construe all factual allegations in the light most favorable to plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). Dismissal is appropriate when the complaint “on its face show[s] a bar to relief.” Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). III. LAW AND ARGUMENT A. The Court lacks subject-matter jurisdiction pursuant to the independent contractor exception. “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction. Federal courts have jurisdiction to hear suits against the government only with a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver.” Young v. United States, Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 4 of 11 Page 5 of 11 727 F.3d 444, 446-47 (5th Cir. 2013) (internal citations and quotation marks omitted); see also United States v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA is a limited waiver of the United States’ sovereign immunity for certain tort suits. 28 U.S.C. § 1346(b); United States v. Orleans, 425 U.S. 807, 813 (1976). Under the FTCA, recovery in tort is permitted against the United States for damages arising out of the tortious conduct of federal employees acting within the scope of their employment. See 28 U.S.C. §§ 1346(b) & 2672. A statute waiving sovereign immunity must be strictly construed. Owen v. United States, 935 F.2d 734, 736 (5th Cir. 1987). The FTCA grants jurisdiction only for “the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office of employment.” 28 U.S.C. §§ 2679(b)(1) & 1346(b) (emphasis added). Dismissal is warranted here because Plaintiff cannot prove that the alleged negligence of a VA employee caused or contributed to his purported injuries. Plaintiff’s Complaint does not identify any specific acts or omissions constituting negligence on the part of a federal employee. Rather, the Complaint merely makes conclusory statements of negligence regarding the VA and Federal Defendant, rather than making any specific allegations of a negligent acts or omissions. See R. Doc. 1 at ¶¶ III(1), (5)-(6). Even if Plaintiff’s allegations against Federal Defendant are specific enough to satisfy the FTCA, which is denied, an independent contractor-not a federal employee-committed these purported negligent acts or omissions. Under the FTCA, “[c]onsent to be sued does not extend to the acts of independent contractors working for the Government.” Peacock v. United States, 597 F.3d 654, 658 (5th Cir. 2010); see also Broussard v. United States, 989 F.2d 171, 174 (5th Cir. 1993); Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998) (“The FTCA . . . does not extend to acts of independent contractors”); 28 U.S.C. § 2671 (providing that government Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 5 of 11 Page 6 of 11 employees are “officers or employees of any federal agency, members of the military[,] naval forces[, or] the National Guard . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation). “The key inquiry in determining whether an individual is an employee of the government or an independent contractor is the power of the federal government to control the detailed physical performance of the individual.” Peacock, 597 F.3d at 658 (internal citation and quotation marks omitted); Jasper v. FEMA, 414 F. App’x 649, 651 (quoting Logue v. United States, 412 U.S. 521, 528 (1973)) (internal quotation marks omitted). Stated alternatively, “the key inquiry under this control test is whether the Government supervises the day-to-day operations of the individual.” Lilly v. Fieldstone, 876 F.2d 857, 585 (10th Cir. 1989); Bernie v. United States, 712 F.2d 1271, 1273 (8th Cir. 1983) (same) (quoting Orleans, 425 U.S. at 815). Although the Fifth Circuit has recognized that authority to control the detailed physical performance of the actor may be the most critical factor in separating employees from independent contractors, it is not necessarily the only factor. Broussard, 989 F.2d at 175. In addition to the authority-to-control factor, courts should also consider the factors stated in the Restatement (Second) of Agency § 220.1 Id.; Linkous, 142 F.3d at 276. “[I]f the government lacks the power to 1 The Restatement § 220 factors are: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is part of the regular business of the employer; (i) whether or not the parties believe that they are creating the relation of master and servant; and (j) whether the principal is or is not in business. Linkous, 142 F.3d at 276. Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 6 of 11 Page 7 of 11 control an individual, plus several factors listed in § 220 weigh in favor of independent contractor status, then a court must conclude that the individual is an independent contractor.” Id. Here, Contract No. VA797-P-0185 provides that Clarke “warrant[ed] and implie[d]” the rolling walkers delivered under the contract were “merchantable and fit for use for the[ir] particular purpose.” Exh. A to Richards Decl. at ¶ FAR 52.212-4(o). The contract further provided that Clarke would deliver the rolling walkers “F.O.B. Destination”2 as “specified on the individual VAMC’s delivery order.” Id. at ¶ 2.1-2.3. The relevant purchase order and Plaintiff’s own medical records show the rolling walker was delivered to Plaintiff’s home at 127 Woodburn Drive, Houma, Louisiana 70364. See Pierce Decl. at ¶¶ 5-7 & Exhs. A at USA6, B. Plaintiff represents that this is his correct home address. See Exh. A to Caine Decl. Thus, Clarke-not the VA-was the responsible party for delivering a “merchantable and fit” rolling walker to Plaintiff’s home. The VA had no authority to control Clarke’s delivery of the rolling walker. Likewise, none of the Restatement § 220 factors indicate that any negligence is attributable to a federal employee. Thus, any alleged negligence on the part of Clarke-an independent contractor-regarding the rolling walker may not be imputed to Federal Defendant. See, e.g., Shields v. U.S. Dept. of Agriculture, Civ. Action No. 14-1622, Sec. “F”(5), at R. Doc. 25 (Feldman, J.) (applying independent contractor exception “because any negligent acts or omissions were made by employees of an independent contractor, not employees of the United States Department of Agriculture”); Mantiply v. United States, 634 F. App’x 431, 433-34 (5th Cir. 2015) (rendering judgment for United States in contract physician case pursuant to same exception); Jasper, 414 F. App’x at 651 (affirming dismissal for lack of lack of subject-matter jurisdiction in FEMA trailer case pursuant to same 2 “F.o.b. destination means ‘the seller must at his own expense and risk transport the goods to [the destination] and there tender delivery of them.’ ” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 604 n.2 (2009) (quoting U.C.C. § 2-319(1)(b) (2001)). Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 7 of 11 Page 8 of 11 exception); Tapp v. United States, 2010 WL 3070373, at *3 (Aug. 2, 2010) (Engelhardt, J.) (dismissing for same reasons); Maria v. United States, 2010 WL 2009968, at *3-4 (E.D. La. May 17, 2010) (Lemmon, J.) (applying exception when “the Corps did not retain control over the details of the work”); Miller v. McElwee Bros., Inc., 2007 WL 2284546, at *5 (E.D. La. Aug. 6, 2007) (Fallon, J.) (applying exception when “the Contract . . . indicate[s] that the United States had little control over the details of the work”); Irwin v. United States, 2007 WL 2727253, at *6 (N.D. Miss. Sept. 12, 2007) (applying exception when contractor “supervised the nature, detail, and method of all contracted for work”); Pershing v. United States, 736 F. Supp. 132, 134 (W.D. Tex. 1990) (applying exception when “the United States did not exercise day-to-day supervision or control of [the contractor’s] employees or the construction activities”). In sum, Plaintiff cannot satisfy his burden to demonstrate that the Court has subject-matter jurisdiction to hear this lawsuit due to the independent contractor exception. As a result, the Court must dismiss this matter pursuant to Rule 12(b)(1). B. Plaintiff has failed to state a cognizable claim under La. Civ. Code arts. 2317 & 2317.1. Furthermore, Plaintiff has failed to state a cognizable negligence claim. Although individuals “may recover against the United States and its agencies under the FTCA ‘in the same manner and to the same extent as a private individual under like circumstances’ under substantive state law,” Pleasant v. U.S. ex rel. Overton Brooks Veterans Admin. Hosp., 764 F.3d 445, 448 (5th Cir. 2014) (quoting 28 U.S.C. § 2674), plaintiffs must nevertheless plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The Court need not accept conclusory allegations as true, as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 8 of 11 Page 9 of 11 As Plaintiff contends the alleged tortious conduct occurred in Louisiana, the Court must analyze and apply Louisiana law. Pleasant, 764 F.3d at 448. Plaintiff alleges that the VA was negligent in “fail[ing] to inspect the walker to make sure it was working properly before issuing the walker” to him. R. Doc. 1 at ¶ (III)(6). La. Civ. Code arts. 2317 & 2317.1 govern negligence claims regarding “things,” such as rolling walkers. See also La. Civ. Code art. 471 (“Corporeal movables are things, whether animate or inanimate, that normally move or can be moved from one place to another.”); Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 888 So. 2d 782, 791 (La. 2004) (holding that plaintiff’s petition addressing hospital’s failure to repair a wheelchair alleged a claim of ordinary negligence that did not fall within the provisions of the Louisiana Medical Malpractice Act); Wilson v. Invacare Corp., 920 So. 2d 393, 396 (La. App. 2d Cir 2006). To plead such a negligence claim, Louisiana courts have required plaintiffs to demonstrate five elements: (1) that the thing which caused the damage was in the defendant’s custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care. Robinson v. Meaux, 23 So. 3d 1025, 1028 (La. App. 3d Cir. 2009); Jones v. Hancock Holding Co., 707 F. Supp. 2d 670, 673 (M.D. La. 2010); see also Antonetti v. Bourbon 735, LLC, 2016 WL 5869791, at *4 (E.D. La. Oct. 7, 2016) (Lemelle, J.). Plaintiff’s Complaint contains no actual facts addressing any of these five elements. Plaintiff has not alleged the rolling walker was in the VA’s custody or control prior to Plaintiff’s receipt of it; nor has he alleged that the rolling walker had an unreasonably dangerous vice or defect when he received it. Furthermore, he has not demonstrated that the VA knew or should have known of any pre-existing vice or defect, or that the exercise of reasonable care could have prevented his alleged damages. Finally, Plaintiff has not demonstrated how the VA allegedly failed Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 9 of 11 Page 10 of 11 to exercise reasonable care; instead, he merely states in a conclusory manner that the VA “fail[ed] to inspect the walker.” R. Doc. 1 at ¶ (III)(6). In sum, Plaintiff has failed to plead the necessary elements for his negligence claim. Riggs v. Opelousas Gen. Hosp. Trust Auth., 997 So. 2d 814, 818 (La. App. 3 Cir. 2008). Finally, Federal Defendant notes that even if the Court exercised its discretion to afford Plaintiff an opportunity to amend his complaint, any amendment would be futile. As discussed above, Clarke shipped the rolling walker directly to Plaintiff’s residence nearly two years before his alleged fall. There simply are no facts that would tend to support any claim against Federal Defendant under La. Civ. Code arts. 2317 and 2317.1. Riggs, 997 So. 2d at 818. Accordingly, the Court would not abuse its discretion in denying Plaintiff leave to amend. See Fenghui Fan v. Brewer, 377 F. App’x 366, 368 (5th Cir. 2010) (affirming judgment when district court denied leave to amend based on futility); Tipton v. Northrop Grumman Corp., 2009 WL 3160163, at *8 (E.D. La. Sept. 29, 2009) (Duval, J.) (denying leave to amend); see also Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000) (defining futility “to mean that the amended complaint would fail to state a claim upon which relief could be granted”). As a result, the Court should dismiss this matter pursuant to Rule 12(b)(6). IV. CONCLUSION WHEREFORE, for the reasons set forth above, Federal Defendant, the United States of America, respectfully requests this Honorable Court to grant the instant motion, thereby dismissing this matter for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), and for failure to state a claim pursuant to Rule 12(b)(6). New Orleans, Louisiana, this 17th day of February, 2017. Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 10 of 11 Page 11 of 11 Respectfully submitted, KENNETH ALLEN POLITE, JR. UNITED STATES ATTORNEY /s/ K. Paige O’Hale K. PAIGE O’HALE NC Bar No. 44667, LA Bar No. 35943 Assistant United States Attorney 650 Poydras Street, Suite 1600 New Orleans, Louisiana 70130 Telephone: (504) 680-3155 Fax: (504) 680-3174 Paige.OHale@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served electronically and/or by first-class mail, postage prepaid, on this 17th day of February, 2017, on counsel for all parties. /s/ K. Paige O’Hale_____ K. PAIGE O’HALE Assistant United States Attorney Case 2:16-cv-14830-JCZ-DEK Document 8-1 Filed 02/17/17 Page 11 of 11 THOMAS WILLIAMS VERSUS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CIVIL ACTION NO. 16-14830 SECTION "A" (3) UNITED STATES OF AMERICA JUDGE ZAINEY MAG. JUDGE KNOWLES * * * * * DECLARATION OF CHARLES CAINE I, Charles Caine, Esq. , pursuant to 28 U.S.C. § 1746, declare under penalty of perjury as follows: 1. I am a competent natural person over the age of 18 years old. I am currently employed by the United States Department of Veterans Affairs ("VA") as a Staff Attorney with the VA' s Office of Chief Counsel in New Orleans, Louisiana. I have been employed by the VA since September 1983, and I am an attorney licensed in the State of Louisiana. 2. I base this declaration on my personal knowledge, and on information contained in the V A' s relevant files. If called to testify at a trial of this matter, Williams v. United States of America, Civil Action No. 16-14830, Section "A"(3), U.S. District Court for the Eastern District of Louisiana, I would testify competently and consistently with the statements contained in this declaration. 3. In my capacity as a VA Staff Attorney, I am responsible for the investigation of claims filed against the VA that are assigned to me, usually within the state of Louisiana, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Accordingly, I have personal knowledge of administrative claims that are within my area of responsibility. Case 2:16-cv-14830-JCZ-DEK Document 8-2 Filed 02/17/17 Page 1 of 6 4. Attached hereto as Exhibit "A" is a true and correct copy of the administrative claim that Mr. Thomas Williams, Plaintiff in this matter, submitted to the VA pursuant to the FTCA. The VA received this record on March 10, 2016. This record has been maintained in the VA's files, and has been kept in the course ofthe VA's regularly conducted activities. For ease ofreference, Exhibit "A" has been Bates numbered USA11-14. I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct. New Orleans, Louisiana, this _ _,.§.....__ day of L~""'l , 2017. c~ Staff Attorney Office of General Counsel U.S. Department of Veterans Affairs Case 2:16-cv-14830-JCZ-DEK Document 8-2 Filed 02/17/17 Page 2 of 6 p.1 CLAil\f FOR DAMAGE INSntucnONs· PI lMJUriJlY : 9'YILIAH ' 5. MARlTAtSTAniS 6. DATEANDDAYOF ACCIDENT 7. nME (A.M. OR P.M) B. Blais of Claim (Stare in dekll! lire known/acts and cfrannstances DllendiJ h d. · 9 . l"ROPERTYDAMACE BRII!FL Y DESOUBE 1liE PROP£R.TY, NA.nJAE AND EXTENT OF DAMAGE AND THE LOCATION Wllf;R.E PROPERTY MAY DE INSPECTED. (See-insfrvt:llons llfl rewne sftf() A)ft 1o.- J'£RSONAL JNJlJR.Y/WllONGFUL DEATH ll. ,S-108 l'rcvlo115 edll.lolll nol -~~~~ I 3J.. til:!// tZn!k .Jfr/!.12-/- fhum~, Lit 7t1.3£..3 Code lld . lOTAL(F..,.,.,.r.,~ ..... t:.tnnitfoifl!llllr'fl fl/}'Git' rit:lrttJ /(Sto .fli~. mJ Williams (EDLA #16-14830) Exh. A to Caine Declaration USA000011 Case 2:16-cv-14830-JCZ-DEK Document 8-2 Filed 02/17/17 Page 3 of 6 p.2 PRrY AC\' ACT NOTICE nis l'lollco Is prtJ'IUCIII In acCIOI"IIIIIce with the Pri•KJ Act,, 1J.S.C 3~1e)(3). B. Prirw:ipdl fllrtttUI:' Tltf. inronn-~ian reqo:cllod •slo be~ In t Notices ofS)III tar l~e •cency to ..tlcom )'OU A. 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(c)luupponafcllim• (Ot4amqt lo pntpaty which il nal econDIOicaUy repsi11ble, or If tltofi!Opcrly lrt lo.c1 ord•tnt)'OII. lbeolltiJD&nulloukl~>~bmlri-U 10 tile oriaiNI COlli ol"lhc ~.Lie cllle arpan:;.x, •d the nluc or lbe p~q~orty, bath ttcr ..... ,.., •Oer tbe ac;cjdat1, Suc:ll IIIICIIICIVI Jhould"" .., disia~e~aiOII CDIIlflltal pencw, ~cnbly rqllltoblll dtlkn or ol'n:ial.s l'llfJiili• wi~ fhr -rype or proptt1)' d•maacd, or lly two ar mott Cl>lrtpclili~e bltllkn, ... sbalsld be «ftilicd u .. "'l: JIOI OIIII'• BOt wftcn it ii1T.alled pnt-a. ond the pcrio4 o( ~IJillilllliatian.,. iiiCipocitati.an, llltllldlq!wrniucl "'111 l"alloro lo tp<:ded, lltld co.,., I