The opinion of the court was delivered by: Surrick, J.
Presently before the Court are Defendant United States of America's Motions to Dismiss for Lack of Jurisdiction. (ECF Nos. 34, 36, No. 10-2460.) For the following reasons, the Motions will be denied.
These consolidated lawsuits arise as a result of an airplane accident that caused the death of flight instructor Adam Braddock and his student Charles Angelina.*fn1 Plaintiff Joseph Turturro, administrator of Braddock's estate, and Plaintiffs Charles and Virginia Angelina, representatives of Angelina's estate, allege the following facts.
On May 22, 2008, Angelina was taking flight lessons in a small aircraft ("accident aircraft") at the Northeast Philadelphia Airport with Braddock. Angelina was practicing touch-and-go landings, during which an aircraft lands on a runway and takes off again without coming to a complete stop. The pilot enters into a traffic pattern, circles the airport, communicates with air traffic control for clearance, and then repeats the process. Defendant United States operates the air traffic control system at the airport.
The accident aircraft departed the end of Runway 33 and was about to enter into the traffic pattern when an air traffic controller switched traffic patterns from left to right, without giving the instruction to make this maneuver "speed and altitude permitting," as previously instructed. (Turturro SAC ¶ 15.) Immediately prior to this final departure, a large helicopter controlled by Defendant Agusta was hovering in the vicinity of the Gulf and Juliet taxiways. (Id. at ¶ 20.) Plaintiffs allege that the helicopter generated invisible wake vortices, rotor downwash and wake turbulence. After hovering, the helicopter commenced forward flight, and either crossed over the departure end of Runway 33, or came within its proximity. (Id. at ¶ 35.) This forward movement increased the helicopter's wake turbulence and rotor downwash, and created a closure and collision risk with the accident aircraft. (Id. at ¶¶ 20-21.) In addition, shortly before the accident aircraft was cleared for takeoff, a jet departed from Runway 24, which created wake turbulence and vortices for the accident aircraft as it prepared to depart from Runway 33. (Id. at ¶ 22.)
Angelina followed the right traffic pattern as advised. (Id. at ¶ 23.) This instruction placed the accident aircraft in the helicopter's and jet's invisible wake vortices, and created a collision risk. The accident aircraft lost control and crashed into a parking lot, killing Angelina and Braddock.
Following the accident, Plaintiff Joseph Turturro and Plaintiffs Charles and Virginia Angelina filed separate, but similar, Standard Form 95s with the Federal Aviation Administration. (Turturro Form 95, Turturro Resp. Ex. 1, ECF No. 45; Angelina Form 95, Angelina Resp. Ex. B, ECF No. 46.)*fn2 Turturro alleged in his administrative claim that as the accident aircraft approached the departure end of Runway 33, "it encountered the vortex of a helicopter, operated by Agusta . . . resulting in the accident aircraft being thrown to the ground by that helicopter wake turbulence which caused the crash." (Turturro Form 95 at 1.) The controllers were fully aware of the wake turbulence that emanates from large helicopters and the danger it creates for small aircraft. Notwithstanding this knowledge, and in violation of air traffic control instructions, the controllers cleared the helicopter "across the duty runway and then allow[ed] it to slowly hover in the vicinity of the departure end with the wind blowing the turbulence right at the departure end, knowing they had cleared the accident aircraft to make a touch and go landing on the same runway." (Id. at 2.) The accident occurred without a required wake turbulence warning, without a suggestion to abandon the touch-and-go landing, and without a warning to the helicopter to depart from a separate runway.
In addition to these allegations, both administrative claims incorporate by reference the identical expert report of Richard Wentworth. (Wentworth Report, Turturro Resp. Ex. 2; Wentworth Report, Angelina Resp. Ex. B.) Wentworth is a former air traffic control investigator with the National Transportation Safety Board. In his report, Wentworth advised that at the time of the accident, there were three controllers in the airport's tower. (Wentworth Report 1.) The local controller, who had been in position for five minutes, "failed to provide service, she failed to issue traffic information, she failed to provide adequate spacing and sequence and finally she failed to issue a wake turbulence advisory." (Id.) Wentworth also advised that "the local controller should have been very familiar with the scenario she was faced with concerning the [accident aircraft] conducting a touch and go and the Agusta waiting to depart." (Id.) In addition, Wentworth indicated that the "fact that no traffic information was given to the [accident aircraft] may have created a startle effect once the instructor realized there was a helicopter in close proximity to their position." (Id. at 2.) After reviewing the radar data, Wentworth determined that at the time of the accident, the helicopter and the accident aircraft were 900 feet apart-significantly less than the required minimum distance of 3,000 feet between successive departures. (Id.) Wentworth asserted that the helicopter should not have been permitted to depart in front of the accident aircraft. The controllers should have known that "the presence of rotor wash from the departing helicopter was highly likely." (Id. at 3.) "In summary, the decision to allow the helicopter to depart ahead of and in front of the [accident aircraft] was irresponsible." (Id.)
On June 17, 2010, the FAA denied both administrative claims.*fn3 (Angelina Mot. Dismiss Ex. 4, ECF No. 34; Turturro Mot. Dismiss Ex. 3, ECF No. 36.) Turturro and the Angelinas filed lawsuits on May 21, 2010 and June 24, 2010, respectively. Plaintiffs thereafter took several depositions and filed separate Second Amended Complaints, which include claims against the United States for negligence (Count I) and spoliation of evidence, obstruction of justice, and unconstitutional violation of due process (Count II), and against Agusta for negligence (Count III) and breach of contract (Count IV).
The United States now moves to dismiss the Second Amended Complaints for lack of subject matter jurisdiction. The United States argues that many of the substantive allegations in the Second Amended Complaints are new and were never presented to the FAA for review.
Federal Rule of Civil Procedure 12(b)(1) requires a court to grant a motion to dismiss if it lacks subject matter jurisdiction over the case. Rule 12(b)(1) motions may present either a facial or factual challenge to subject matter jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). If a defendant brings a facial attack, the court confines itself to the pleadings and views the allegations in the light most favorable to the plaintiff. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). If a defendant presents a factual attack, the court is free to review evidence outside the pleadings. Id.
The parties agree that the United States has launched a factual attack on subject matter jurisdiction because it contends that Plaintiffs have failed to satisfy the jurisdictional prerequisites of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Consequently, "the Court is free to weigh the evidence and satisfy itself whether it has power to hear ...