The opinion of the court was delivered by: David G. Larimer United States District Judge
On the morning of November 28, 2001, U.S. Army Reserve Specialist [SPC] Jonathan Goodwin ("Goodwin") was traveling southbound on Route 14A in Yates County, from his home in Rochester, New York to the Army Reserve Depot in Penn Yan, New York. Goodwin was on his way to the second day of a two-day training session, which was scheduled to begin at 8:00 a.m. on that day. At 8:55 a.m., Goodwin drove into the oncoming northbound lane in an attempt to pass a slower moving vehicle. There was a thick fog that reduced visibility, and Goodwin struck the vehicle driven by Elizabeth Hamm, n/k/a Elizabeth Curtiss ("Hamm") head-on. Hamm sustained severe injuries in the accident. There is no real dispute that Goodwin's actions caused the accident. Goodwin pleaded guilty to reckless driving and assault in the third degree in Yates County Court on July 30, 2002. (Dkt. #21, Ex. 7, Transcript of Plea).
Hamm commenced this federal court action against the United States under the Federal Tort Claims Act ("FTCA") for injuries she sustained as a result of Goodwin's negligent driving.*fn1 Pending before the Court is the Government's motion to dismiss, pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction. The Government claims that Goodwin was not acting within the scope of his employment at the time of the accident.
Goodwin was a civilian and was also a United States Army Reservist. As a reservist, he had certain duties. One was to attend training sessions. On November 27 and 28, 2001, he was scheduled to attend an inactive-duty training. His schedule had been arranged as a makeup for a training session that Goodwin had failed to attend in October. Goodwin completed the first day of the session and was returning for the second day when the accident occurred. Goodwin had returned to his home in Rochester (about 60 miles away) for the night between training sessions. He was scheduled to arrive for the second day at 8:00 a.m., November 28. The accident occurred at about 8:55 a.m. At the time of the accident, Goodwin was dressed in his military uniform.
After the accident, he was taken to the hospital and never actually reported to the Reserve Depot. One of his supervising officers, after visiting him in the hospital, marked Goodwin "present" on his attendance sheet, Army Form 1380, Record of Individual Performance on Reserve Duty Training. He was, therefore, apparently paid for 8 hours of training on that day. He was not reimbursed for any travel expenses.
Goodwin's medical expenses were covered and paid for by his personal automobile insurance. Goodwin has not faced military discipline for his absence or reckless driving on November 28, 2001. The Army has not conducted a line-of-duty inquiry to question Goodwin's "pay status" of November 27 and 28, 2001.
A. Standards for a 12(b)(1) Motion
It is well-settled that "[a] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). There is also no dispute that "[j]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998).
When "resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002). The consideration of materials outside the pleadings does not convert the motion into one for summary judgment. See CCS Int'l Ltd. v. United States, 2003 U.S. Dist. LEXIS 23056 at *2 (S.D.N.Y. 2003).
The Second Circuit recognizes that where the issue of subject matter jurisdiction is so intertwined with the merits that its resolution depends on the resolution of the merits, the court should use the standard applicable to a motion for summary judgment and dismiss for lack of jurisdiction only where no triable issues of fact exist. London v. Polishook, 189 F.3d 196, 198-99 (2d Cir. 1999) (quoting Careau Group v. United Farm Workers of Am., AFL-CIO, 940 F.2d 1291, 1293 (9th Cir. 1991)); see also Makarova v. United States, 1999 U.S. Dist. LEXIS 1211 (S.D.N.Y. Feb. 4, 1999), aff'd 201 F.3d 110 (2d Cir. 2000); Augustine v. United States, 704 F.2d 1074, 1079 (9th Cir. 1983) ("Because the jurisdictional issue is dependent upon the resolution of factual issues going to the merits, it was incumbent upon the district court to apply summary judgment standards in deciding whether to grant or deny the government's motion."). This doctrine is applicable when a motion for summary judgment is raised before adequate discovery has been completed, and when conflicts of fact exist.*fn2
In this case, discovery on the issue of scope of employment has been completed, and the parties agreed at oral argument that the jurisdictional issue is ripe for decision. Accordingly, the Court has decided this issue on the present motion, despite ...