Académique Documents
Professionnel Documents
Culture Documents
No. 11-1966
GEORGE LUTFI,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony J. Trenga,
District Judge. (1:09-cv-01114-AJT-IDD)
Argued:
Decided:
PER CURIAM:
In
this
Federal
Tort
Claims
Act
(FTCA)
case,
dismissal
of
his
claim
for
lack
of
subject
matter
jurisdiction.
The
injured
his
Memorial
underlying
arm
while
Appellant
(Memorial)
Lutfi
dispute
visiting
in
alleges:
arose
the
United
Arlington,
(1)
the
after
Appellant
States
Virginia.
district
Air
On
court
Lutfi
Force
appeal,
erroneously
statute
establish
(RLUS),
gross
which
negligence;
required
and
(3)
in
Appellant
the
Lutfi
to
alternative,
the
was
harmless
error
inasmuch
as
Appellant
Lutfis
while
he
was
visiting
2
the
Memorial;
and
(3)
the
of
approximately
Friday,
November
his
relatives
8:00
p.m.
17,
2006,
arrived
According
Appellant
at
to
the
Lutfi
and
Memorial
at
Appellant
Lutfi,
the
the
lot
were
not
functioning
that
evening.
He also
vehicles,
but
the
lights
on
those
poles
were
not
functioning.
Appellant Lutfi and his relatives visited the Memorial
for
approximately
vehicles.
twenty
minutes
before
returning
to
their
ankles, causing him to fall to the ground and fracture his arm.
B.
As a result of this injury, Appellant Lutfi brought
multiple
actions
defendants.
in
state
and
Specifically,
federal
on
November
court
17,
against
2008,
various
Appellant
Court
However,
on
against
July
27,
three
2010,
private
Appellant
federal
Lutfi
contractors.
filed
motion
protect
visitors
against
the
dangerous
conditions
that
were
July
counsel,
26,
2010,
filed
an
reincorporating
States
and
Appellant
amended
the
Lutfi,
complaint
original
adding
(1)
this
time
(Amended
allegations
claims
acting
against
against
through
Complaint),
the
several
United
private
and
(2)
claim
that
the
United
States
negligently
July
26,
2010,
the
district
court
issued
its
on
December
enlarged
this
10,
2010.
period
by
However,
two
months.
the
district
Thus,
court
Appellant
lacked
subject
matter
FTCAs
independent
jurisdiction
contractor
under
exception
the
FTCA; 3
insulated
(2)
the
the
United
J.A. 1036-37,
See R. 62. 4
engaged
in
litigative
misconduct
during
discovery
sufficient
to
warrant
magistrate
judge
involuntary
heard
argument
dismissal.
on
this
R.
motion
188.
and,
The
in
the
See
Courts
dismissal
of
orders
this
and
case
instructions,
with
this
prejudice
is
Court
the
finds
only
that
effective
sanction.)
district
dismiss
While
the
Rule
court,
the
United
for
lack
of
41
motion
States
subject
was
filed
matter
pending
a
before
renewed
jurisdiction
the
motion
or,
in
to
the
courts
only
possess
subject
matter
jurisdiction
over
See J.A.
to
the
public
7
for
recreational
purposes,
including
sightseeing,
negligence
or
willful
has
or
no
liability
malicious
failure
except
to
for
guard
gross
or
warn
RLUS
receive
applicable
a
fee
in
because
return
(a)
for
the
United
Appellant
States
Lutfis
use
did
not
of
the
Memorial and (b) Appellant Lutfi was sightseeing when his injury
occurred.
Lutfi must show that the United States was grossly negligent
under Virginia law in order to prevail.
The district court then concluded Appellant Lutfi had
failed to make such a showing.
to
a
complete
neglect
heedless
and
of
the
palpable
safety
of
violation
another
of
legal
and
duty
Applying this
even
resolving
all
disputed
facts
and
drawing
all
could
not
conclude
that
the
United
States
was
grossly
Accordingly,
II.
We review de novo a district courts dismissal for
lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1).
we
review
the
district
court's
grant
of
Summary
When evaluating a
the
of
genuine
issue
of
material
fact.
If the
moving party meets this burden, the non-moving party must then
go beyond the pleadings and set forth specific facts showing
that there is a genuine issue for trial.
Finally,
when
reviewing
the
Id. at 324.
judgment
of
district
III.
Pursuant to the doctrine of sovereign immunity, the
United States is immune from private civil actions absent an
express waiver.
Through the
claims,
vesting
federal
district
courts
with
exclusive
under
circumstances
where
the
United
States,
if
U.S.C.
1346(b)(1).
Because
Appellant
Lutfis
alleged
in
dismissing
his
claim
for
lack
of
subject
matter
for
lack
of
subject
matter
jurisdiction
and
held
that,
matter
jurisdiction
in
one
of
two
ways:
(1)
by
See Kerns,
585 F.3d. at 192-93 (citing Adams v. Bain, 697 F.2d 1213, 1219
(4th
Cir.
1982)).
In
facial
challenge,
the
plaintiff
is
to
Procedure.
Rule
12(b)(6)
of
the
Federal
Rules
of
Civil
See id.
of
if
allegations.
the
there
complaint
are
facts
and
to
Id.
11
in
an
support
evidentiary
the
hearing
jurisdictional
This
legal
framework
is
normally
effective
where
the
jurisdictional
facts
are
for
the
However, in
inextricably
trial
court
should
then
afford
the
In such
plaintiff
the
plaintiff
facing
direct
attack
on
the
merits.
Id.
situations,
trial
court
should
dismiss
under
Rule
made
solely
for
the
purpose
of
obtaining
Id.
(internal
quotation
marks
and
alterations
omitted).
Thus,
Appellant
Lutfi
contends
that,
because
the
matter
jurisdiction
under
Fed.
R.
Civ.
P.
12(b)(1).
agree.
There
is
no
dispute
that
the
jurisdictional
and
Lutfi
under
Virginia
law.
Thus,
under
Kerns,
the
on
motion
for
summary
judgment.
Accordingly,
the
disregard all errors and defects that do not affect any partys
substantial rights.
2111 (On the hearing of any appeal . . . the court shall give
judgment . . . without regard to errors or defects which do not
affect the substantial rights of the parties.)
An error is
(1946); see also Taylor v. Virginia Union Univ., 193 F.3d 219
(4th
Cir.
1999)
(en
banc)
(formally
adopting
the
Kotteakos
13
court
assumed
jurisdiction
and
analyzed
the
United
However, in Kerns,
the courts primary concern was the fact that the plaintiff had
not
been
allowed
to
conduct
discovery
and
thus,
was
not
Kerns,
contrast,
here,
original
scheduling
awarded thereafter.
accorded
the
Appellant
Lutfi
was
given
seven
order
and
the
additional
two
months
procedural
safeguards
of
the
summary
judgment
J.A.
accepts
as
1034-35
true
(For
these
purposes
of
this
characterizations
of
motion,
the
the
See,
Court
purpose
and
Recreational
Use
Statute.);
14
J.A.
1035
(Accepting
that
testimony
as
true,
there
is
nothing
in
the
record
that
establishes how long that condition may have existed before the
accident
or
that
the
United
States
was
on
notice
of
that
for
lack
of
subject
matter
jurisdiction
or,
in
the
not
effect
its
ultimate
conclusion
that
Appellant
Lutfi
could not establish that the United States was liable to him
under Virginia law.
harmless.
B.
Appellant Lutfi next argues the district court erred
in applying the RLUS for two reasons.
contends that the RLUS only applies to those entities for whom
the existence of the RLUSs reduced standard of care was the
primary motivation for opening their land to the public and,
therefore, the RLUS does not apply to the United States as the
15
Appellant
Lutfi
contends
that
the
RLUS
only
likely
would
have
opened
the
Memorial
to
the
public
landowner
whose
liability
the
legislature
sought
to
limit is the one for whom the existence of the RLUS provides the
primary
motivation
in
allowing
the
public
on
his
land.)
was
injured
while
sitting
on
In Piligian, the
shopping
concourse
As a result of the
injury, she filed suit against the United States under the FTCA.
16
The
United
States
argued
that
the
RLUS
applied
because
the
However,
The
the
Piligian
court
likened
the
concourse
to
shopping mall and, therefore, concluded that the RLUS did not
apply.
Piligian
is
inapplicable
because
Appellant
Lutfis injury did not occur in a commercial area like the one
at
issue
in
Pilgian.
J.A.
1036.
Moreover,
even
assuming
statutes
limitation
of
liability
provision
must
be
in
the
statute
that
supports
such
There is simply
a
requirement.
Because both
Lutfis
second
argument
against
the
but,
instead,
he
went
to
the
Memorial
to
impart
Thus,
we
must
give
the
term
its
ordinary
meaning.
Johnson v. Zimmer, 686 F.3d 224, 243 (4th Cir. 2012) ([W]hen
terms
used
in
statute
are
undefined,
we
give
them
their
both this court and the Supreme Court have relied on the terms
dictionary definition.
district
Websters
court
Third
New
and
adopt
the
International
18
Accordingly, we join
relevant
definitions
Dictionary.
from
Specifically,
also
agree
with
the
district
courts
conclusion
to
prove
his
claim.
In
this
regard,
Appellant
Lutfi
Virginia
law,
gross
Again, we disagree.
negligence
is
defined
as
Frazier
Id. at 801.
the rear of the orchestra pit and the front of the stage.
There
an
incident,
amounted
to
and
the
violation
absence
of
city
of
those
code.
protective
Moreover,
devices
two
years
the
negligence.
citys
actions
constituted,
at
most,
ordinary
Virginia
Supreme
Court
reached
the
opposite
demonstrated the gate had been broken for several months prior
to the incident.
had been notified at least three times of this defect, but that
the city had made a deliberate decision not to correct it until
the peak tourist season had concluded.
resemblance
district
to
court
Lutfi
Chapman
should
negligence to a jury.
argues
than
have
that
this
case
Frazier
and,
accordingly,
submitted
the
bears
question
of
more
the
gross
several
independent
parties
for
the
construction
and
been
immediately
notified
if
the
See id.
illumination
in
the
Once such
a call was placed, Mr. Carter avers that it would have been
documented in a computerized maintenance management system known
as
Maximo.
According
to
Mr.
Carter,
the
Maximo
system
further
testifies,
however,
that
those
records
Mr.
also
indicate that the work was completed later that same day.
Appellant Lutfi disputes this testimony, asserting (a)
the lights were out on the evening of his accident and (b) other
evidence
in
the
Maximo
records
undermines
Mr.
Carters
will assume, for purposes of this appeal, that the lights were
out on October 27, 2006 and that they had not been repaired by
the time of Appellant Lutfis visit on November 17, 2006.
22
nor
is
there
any
evidence
that
the
United
States
establishes that the United States was aware that the lights
were out in the parking lot for approximately two weeks before
the
incident
unsuccessful
and
steps
that
to
the
United
correct
the
States
issue.
had
taken
some
Though
this
might
Accordingly,
could
not
find
that
the
United
States
was
liable
to
Appellant Lutfi.
IV.
For these reasons, the judgment of the district court
is
AFFIRMED.
23