Holdsworth v. United States of America et al, No. 1:2011cv00889 - Document 32 (W.D.N.Y. 2012)
Court Description: DECISION and ORDER dismissing 14 Motion to Dismiss without prejudice to refiling within 30 days following the end of the 90-day discovery period.. Signed by Hon. Leslie G. Foschio on 9/27/2012. (SDW)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK JOSHUA HOLDSWORTH, Plaintiff, v. UNITED STATES OF AMERICA, L&D JOHNSON PLUMBING & HEATING, INC., a/k/a U.S. Veterans Constructions & Management Corp., DECISION and ORDER 11-CV-889A(F) Defendants. APPEARANCES: HOGANWILLIG Attorneys for Plaintiff TERESA A. BAILEY, of Counsel 2410 North Forest Road, Suite 301 Getzville, New York 14068 WILLIAM J. HOCHUL, JR. UNITED STATES ATTORNEY Attorney for Defendant United States GAIL Y. MITCHELL, Assistant United States Attorney, of Counsel Federal Centre 138 Delaware Avenue Buffalo, New York 14202 BARTH, SULLIVAN & BEHR Attorneys for Defendant L&D Johnson Plumbing LAURENCE D. BEHR, of Counsel 43 Court Street, Suite 600 Buffalo, New York 14202 In this Federal Tort Claims Act action, Defendant, United States of America, ( Defendant ) moved to dismiss based on a lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1) ( Defendant s motion ) (Doc. No. 14). By papers filed April 10, 2012, Defendant asserts that it is immune from liability based on the discretion any function exception to the FTCP and that Plaintiff s action against it is also barred under the Independent Contractor Doctrine (Doc. No. 22 ¶ ¶ 36-37). In opposition, Plaintiff contends he is unable to oppose Defendant s motion without adequate discovery. CoDefendant, L&D Johnson Plumbing & Heating, Inc. ( Co-Defendant L&D ) also opposes Defendant s motion on the merits and alternatively requests discovery directed to the two grounds asserted in support of Defendant s motion (Doc. No. 23 at 18). Upon review of the Defendant s motion papers, the opposition of Plaintiff and Co-Defendant L&D, the court finds that discovery limited to Defendant s assertion of the discretionary function exception and independent contractor doctrine as grounds for Defendant s motion is warranted. See Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004) (citing Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006, 1011 (2d Cir. 1986) ( party asserting jurisdiction [ ] permitted discovery of facts demonstrating jurisdiction )). Such limited discovery may proceed for a 90-day period commencing upon service of this Decision and Order. Defendant s motion (Doc. No. 14) is therefore DISMISSED without prejudice to refiling within 30 days following the end of the 90-day discovery period. An order scheduling Plaintiff s and Co-Defendant L&D s further responses and Defendant s reply will be entered by the court following the expected re-filing of Defendant s motion which shall include consideration of the results of the limited discovery permitted hereunder. SO ORDERED. /s/ Leslie G. Foschio ________________________________ LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE Dated: September 27, 2012 Buffalo, New York 2
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