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GALLIGAN v. PHILADELPHIA

May 15, 2001

KEVIN GALLIGAN, PLAINTIFF,
v.
CITY OF PHILADELPHIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, J.

MEMORANDUM

Before this Court is the United States' Motion to Dismiss the Joinder Complaint of Contemporary Services Corporation ("CSC") pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Kevin Galligan ("Mr. Galligan"), a former United States Military Academy ("USMA" or "West Point") cadet, sued several parties for his injuries resulting from a safety railing collapse during a December 5, 1998, Army-Navy football game held at Veteran's Stadium in Philadelphia, Pennsylvania. CSC, one of the Defendants in the action, filed a Joinder Complaint against the United States.*fn1 Based on the Feres doctrine, the United States has filed the instant Motion to Dismiss. For the reasons that follow, the Motion is granted.

I. BACKGROUND

On or about December 5, 1998, Mr. Galligan, a West Point cadet suffered injuries as a result of a safety railing collapse at an Army-Navy football game held at Veterans Stadium. (Am. Compl., ¶¶ 10, 11.) In the Court of Common Pleas, Philadelphia County, Mr. Galligan sued CSC and several other parties connected with the football game. (Id.) CSC's involvement was based on the fact that it was retained to provide security services at the game. (Mem. Law Opp'n Mot. Dismiss, Ex. C.) On or about November 17, 2000, CSC filed a third party Complaint "alleging that, among others, the United States `w[as] responsible for the safety and security of the plaintiff at the time of the incident.'" (Mem. Law Supp. Mot. Dismiss at 4.)(citing Joinder Compl., ¶ 11.) Because the United States has sovereign immunity, CSC's Joinder Complaint was brought pursuant to the waiver of sovereign immunity found in the Federal Tort Claims Act, 28 U.S.C. § 1346(b) et seq. ("FTCA"). (Id. at 4.) On or about January 19, 2001, the United States removed the instant action to this Court. See Notice of Removal. Currently, the United States has moved to dismiss CSC's Joinder Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction based on the Feres doctrine. The Feres doctrine is a judicially created doctrine whereby "a soldier may not recover under the Federal Tort Claims

Act for injuries which `arise out of or are in the course of activity incident to service.'" United States v. Shearer, 473 U.S. 52, 57 (1985) (quoting Feres v. United States, 340 U.S. 135, 146 (1950)).

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(b)(1), when "considering a motion to dismiss for lack of subject matter jurisdiction, the person asserting jurisdiction bears the burden of showing that the case is properly before the court at all stages of the litigation." Fed. Realty Inv. Trust v. Juniper Props. Group, No. 99-3389, 2000 WL 45996, at *3 (E.D.Pa. 2000) (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993), cert. denied, 510 U.S. 964 (1993)). The district court, when reviewing a motion to dismiss for lack of subject matter jurisdiction, "must accept as true the allegations contained in the plaintiff's complaint, except to the extent federal jurisdiction is dependent on certain facts." Id. (citing Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 496 (3d Cir. 1987)). The district court is not confined to the face of the pleadings when deciding whether subject matter jurisdiction exists. Id. (citing Armstrong World Indus. v. Adams, 961 F.2d 405, 410, n. 10 (3d Cir. 1992)). "In assessing a Rule 12(b)(1) motion, the parties may submit and the court may consider affidavits and other relevant evidence outside of the pleadings." Id. (citing Berardi v. Swanson Mem'l Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990)). In the case where the defendant attacks jurisdiction with supporting affidavits, "the plaintiff has the burden of responding to the facts so stated." Id. "A conclusory response or a restatement of the allegations of the complaint is not sufficient." Id. (citing Int'l Ass'n of Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1982)).

III. DISCUSSION

The United States' Motion to Dismiss is based upon the Feres doctrine. Relying on the Feres doctrine, the United States argues that "[t]his Court lacks subject matter jurisdiction to adjudicate a third party complaint against the United States for injuries sustained by military personnel incident to service."*fn2 (Mot. Dismiss at 1)(citing Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666 (1977)). CSC argues that this Court has subject matter jurisdiction because the Feres doctrine is inapplicable to this case since "the injury that Kevin Galligan sustained while at the Army/Navy game . . . was not incurred incident to his service with the United States Army." (Mem. Law Opp'n Mot. Dismiss at 5.) Thus, the issue involved in this case is whether the injury sustained by Mr. Galligan arose out of activity incident to his military service. If Mr. Galligan's injury arose out of activity incident to military service, the Feres doctrine is applicable, and this Court lacks subject matter jurisdiction over this case.

A. Feres Doctrine

"It is a well-settled rule of law, known as the Feres doctrine, that `the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the activities arise out of or are in the course of activity incident to service.'" Swiantek v. United States, No. 94-5251, 1995 WL 120208, at *1 (E.D.Pa. 1995) (quoting Feres, 340 U.S. at 146). The Feres doctrine is premised on three rationales. Id. "First, a uniform federal law regarding suits arising from military service is needed in light of the `distinctively federal' relationship between the government and its military personnel." Id. (quoting Feres, 340 U.S. at 143-44; United States v. Standard Oil Co., 332 U.S. 301, 305 (1947)). This rationale is based on "the presumption that Congress would not have intended that suits against the military subject the government to different results based on differing state tort laws." Id. (citing United States v. Johnson, 481 U.S. 681, 689 (1987)). "Second, the Feres doctrine prohibits suits for service-related injuries because such injuries are presumed compensated by `generous statutory disability and death benefits' provided by the Veterans' Benefits Act, 38 U.S.C. § 301 et seq." Id. (citing Johnson, 481 U.S. at 689; Feres, 340 U.S. at 144.) Third, "the Feres doctrine bars actions against the government for service-related injuries because of the concern that allowing such suits would `involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.'" Id. (quoting Johnson, 481 U.S. at 690)(citing Loughney v. United States, 839 F.2d 186 (3d Cir. 1988); Estate of Martinelli v. United States, 812 F.2d 872 (3d Cir.), cert. denied, 484 U.S. 822 (1987)).

1. Injury Incident to Service

The Court of Appeals for the Third Circuit ("Third Circuit") has stated that "the gravamen of the Feres doctrine is that the government is immune from suit when injuries occur incident to service." O'Neill v. United States, 140 F.3d 564, 565 (3d Cir.), cert. denied, 525 U.S. 962 (1998)). Deciding whether an injury is incident to military service is not a simple task because there is no bright line between whether an injury was or was not incident to plaintiff's military service. McVan v. Bolco Athletic Co., 600 F. Supp. 375, 379 (E.D.Pa. 1984). In fact, "[t]here is a good deal of language in judicial opinions to the effect that the inquiry is fact-specific and not easily susceptible to clear rules." Id. (citing Woodside v. United States, 606 F.2d 134, 141 (6th Cir. 1979), cert. denied, 445 U.S. 904 (1980)).

"The Supreme Court has not articulated a specific method for determining whether an injury is `incident' to military service." Richards v. United States, 176 F.3d 652, 655 (3d Cir. 1999), cert. denied, 528 U.S. 1136 (2000). However, the Supreme Court has given some guidance by instructing "courts to examine each case `in light of the statute as it has been construed in Feres and subsequent cases.'" Id. (quoting Shearer, 473 U.S. at 57). Courts have considered a number of factors when trying to decipher the incident to military service issue "including: (1) the service member's duty status; (2) the site of the accident; and (3) the nature of the service member's activity at the time of the injury." Id. (citing Dreier v. United States, 106 F.3d 844, 848 (9th Cir. 1997); Schoemer v. United States, 59 F.3d 26, 28 (5th Cir.), cert. ...


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