Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Piekarski v. United States

United States District Court, D. Minnesota

December 19, 2017

Michael Piekarski, Plaintiff,
v.
United States of America, et al., Defendants.

          REPORT AND RECOMMENDATION

          THE HONORABLE LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE.

         This matter came before the undersigned United States Magistrate Judge pursuant to an Order of Referral, [Docket No. 52], made in accordance with the provisions of 28 U.S.C. § 636(b)(1)(B), and upon Plaintiff's Motion for Partial Summary Judgment, [Docket No. 37], and Defendant the United States of America's (“the United States”) Motion to Substitute the United States for Defendant DeSilva, to Dismiss DeSilva, and to Amend the Caption, [Docket No. 47]. The undersigned held a Hearing on the Motions on November 21, 2017, after which the Motions were taken under advisement. (See, Minute Entry, [Docket No. 61]).

         For the reasons set forth below, the undersigned recommends that the United States' Motion to Substitute the United States for Defendant DeSilva, to Dismiss DeSilva, and to Amend the Caption, [Docket No. 47], be GRANTED in part and DENIED in part as moot, and that Plaintiff's Motion for Partial Summary Judgment, [Docket No. 37], be DENIED as moot.

         I. BACKGROUND AND STATEMENT OF RELEVANT ALLEGED FACTS

         Plaintiff Michael Piekarski alleges that on or about August 1, 2013, he was driving a motorcycle in Minnesota, when Defendant Matthew DeSilva, who was at all relevant times a member of and employed by the United States Navy, negligently operated a pickup truck, causing it to collide with Plaintiff. (Compl., [Docket No. 1], 1-2). Plaintiff further alleges that he brought a claim to the Department of the Navy, Office of the Judge Advocate General, but that his claim was denied on January 5, 2016. (Id. at 2). Thus, on May 27, 2016, Plaintiff initiated the present action in this Court, naming as Defendants DeSilva and the United States of America and alleging a claim under the Federal Tort Claims Act. (Id. at 1-2).

         On July 24, 2017, Plaintiff filed the present Motion for Partial Summary Judgment, seeking an Order granting summary judgment in his favor on two issues: (1) whether Defendant DeSilva was acting within the course and scope of his employment with the United States Navy at the time of the collision, and (2) whether the United States is vicariously liable for Defendant DeSilva's actions under the Federal Tort Claims Act. (Motion for PSJ, [Docket No. 37]).

         Neither Defendant filed a timely Response to Plaintiff's Motion for Partial Summary Judgment. However, on August 15, 2017, the United States filed a Certification pursuant to 28 U.S.C. § 2679(d)(1), in which the Acting United States Attorney for the District of Minnesota certified “that Matthew DeSilva was acting in the scope of his employment with the United States Navy, an agency of the United States of America, at the time of the conduct alleged in the complaint.” (Certification, [Docket No. 43]).

         On August 24, 2017, Plaintiff filed on CM/ECF a Letter addressed to Chief Judge John R. Tunheim of the United States District Court for the District of Minnesota, asking him to enter an order ruling on the Motion for Partial Summary Judgment. ([Docket No. 44]). Plaintiff represented that although the parties agreed that Defendant DeSilva was acting within the scope of his employment at the time of the collision, the parties could not agree on the second issue raised in his Motion for Partial Summary Judgment: whether the United States is vicariously liable for Defendant DeSilva's actions under the Federal Tort Claims Act. (Id. at 1).

         On August 28, 2017, Defendant DeSilva also filed on CM/ECF a Letter addressed to Chief Judge Tunheim. ([Docket No. 45]). Defendant DeSilva asserted that under the Federal Tort Claims Act, Plaintiff's claim in this case is properly brought only against the United States and not against Defendant DeSilva, and he asked “that as part of the United States' Certification regarding the scope of employment, any claims against Defendant Desilva is [sic] dismissed with prejudice.” ([Docket No. 45]).

         On August 29, 2017, the United States also filed on CM/ECF a Letter addressed to Chief Judge Tunheim. ([Docket No. 46]). Therein, the United States purported to present “its position with respect to the Plaintiff's Motion for Partial Summary Judgment.” (Id. at 1). The United States informed the Court that it intended to file a motion to substitute itself for Defendant DeSilva and to dismiss the claims against Defendant DeSilva. (Id.). The United States further inaccurately asserted that Plaintiff's prior Motion for Partial Summary Judgment did not raise the issue of whether the United States was vicariously liable to Plaintiff, so any decision on the question would be premature. (Id. at 2).

         The same day, the United States filed the “Motion to Substitute the United States for the Defendant DeSilva, to Dismiss DeSilva with Prejudice, and to Amend the Caption, ” [Docket No. 47], which is now before the Court, as well as a Memorandum in Support, [Docket No. 49]. Plaintiff filed his Memorandum in Opposition on September 13, 2017. ([Docket No. 54]). On September 14, 2017, Defendant DeSilva filed a Notice of No Reply with the Court, indicating that he does not intend to file memoranda responsive to either of the present Motions. ([Docket No. 56]). On September 27, 2017, the United States filed a Reply in Support of its Motion, in which it once again incorrectly asserts that Plaintiff did not request summary judgment on the issue of liability in his Motion for Partial Summary Judgment. ([Docket No. 60], 6).

         Plaintiff's Motion for Partial Summary Judgment, [Docket No. 37], and the United States' Motion to Substitute, [Docket No. 47], were thereafter referred to the undersigned for Report and Recommendation. (See, Order of Referral, [Docket No. 52]). The undersigned held a Hearing on the Motions on November 21, 2017, after which the Motions were taken under advisement. (Minute Entry, [Docket No. 61]).

         II. THE UNITED STATES' MOTION TO SUBSTITUTE, TO DISMISS THE CLAIMS AGAINST DEFENDANT DESILVA, AND TO AMEND THE CAPTION, [Docket No. 47][1]

         In its present Motion, the United States seeks to (1) substitute the United States for Defendant DeSilva, (2) obtain dismissal with prejudice of all claims against Defendant DeSilva, and (3) amend the caption to reflect DeSilva's dismissal. (Mem. in Supp., [Docket No. 49]). Although Plaintiff conditions his decision not to object to the United States' Motion on the Court's granting Plaintiff's Motion for Partial Summary Judgment, Plaintiff does not present any substantive grounds for opposing the United States' present Motion. (See, Mem. in Response, [Docket No. 54], 1-4).

A. Standard of Review
“‘The Federal Tort Claims Act is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.'” “Under the FTCA, the United States is liable, as a private person, for ‘injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting under the scope of his office or employment.'” The remedy provided by the FTCA for injuries resulting from the activities of [Federal] Government employees “is exclusive of any other civil action or proceeding for money damages.” Employees of the federal government “may not be sued for torts they ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.