"[c]adets are ordered to attend the annual Army/Navy
football game in dress gray uniform." (Id.) On the day of his injury,
Mr. Galligan was required to wear his uniform and attend the game with
his Company. (Id., Ex. B.) If Mr. Galligan failed to attend the game, he
would be disciplined by the regimental board. (Id.) Further, although the
game started at 12:00 p.m., there was a required formation by all cadets
at approximately 9:00 a.m. where Mr. Galligan and his fellow cadets were
required to report, form and march as a group into the stadium before the
start of the game. (Id.) Traditionally, "[a] representative group of
cadets marches onto the field prior to the Army-Navy game symbolizing the
Corps of Cadets stationed at West Point." (Id., Ex. A.) After Mr.
Galligan marched onto the field as part of the West Point representative
group, he and the other cadets in his Company were required to sit
together in a designated area. (Id. Ex. B.) Thus, as a result of the
Army-Navy game tradition, Mr. Galligan's actions, and the regimented
auspices under which Mr. Galligan was required to attend the game, Mr.
Galligan's attendance at the 1998 Army-Navy game was military in nature.
Based on the aforementioned reasons, and in light of the totality of
these circumstances, Mr. Galligan was injured during an activity incident
to military service. At the time of his injury, Mr. Galligan was on duty
and his presence at the game was military in nature. Because Mr. Galligan
suffered an injury which occurred incident to service, the Feres doctrine
applies to this case and Mr. Galligan is barred from pursuing an action
against the United States. Therefore, it follows, that CSC is also
precluded from pursuing a third party claim against the United States.
Thus, the United States' Motion to Dismiss CSC's Joinder Complaint for
lack of subject matter jurisdiction is granted.
The United States' Motion to Dismiss is granted because CSC's Joinder
Complaint is barred under the Feres doctrine. The Feres doctrine dictates
that "the Government is not liable under the [FTCA] for injuries to
[service members] where the injuries arise out of or are in the course of
activity incident to service." Feres, 340 U.S. at 146. Since CSC's
Joinder Complaint falls within this doctrine, the Court accordingly
dismisses the Complaint for lack of subject matter jurisdiction based on
Federal Rule of Civil Procedure 12(b)(1). The Court's jurisdiction over
this case was based on the removal of CSC's Joinder Complaint. Since the
Joinder Complaint is now dismissed, the Court must remand the action to
the Court of Common Pleas of Philadelphia County. See 28 U.S.C. § 1447
(c); Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208 (3d Cir. 1997).
An appropriate Order follows.
AND NOW, this 15th day of May, 2001, upon consideration of the United
States' Motion to Dismiss the Joinder Complaint of Contemporary Services
Corporation (Dkt. No. 9), and the Responses and Replies thereto, it is
hereby ORDERED that:
1. Togo D. West, Jr., Secretary of the United States Army; the United
States Army; the United States Military Academy; The United States
Military Academy Preparatory School; the Army Athletic Association;
Richard Danzig, Secretary of the United States Navy; The United States
Navy; and the United States Naval Academy Athletic Association are
DISMISSED as joinder Defendants and the United States is
substituted as the proper joinder Defendant;
2. the Motion to Dismiss (Dkt. No. 9) is GRANTED;
3. all outstanding Motions are DENIED as moot; and
4. pursuant to 28 U.S.C. § 1447(c), the case is REMANDED to the Court
of Common Pleas of Philadelphia County.