The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiff Omran Al-Khazraji commenced this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346 and 2671 et seq., against the United States Department of the Army seeking damages for injuries he sustained while employed as a role player in military training scenarios. Pending before this Court is Defendant's motion to substitute the United States for the Department of the Army as defendant in this action, and to dismiss Plaintiff's complaint pursuant to FED. R. CIV. P. 12 (b)(1) for lack of subject matter jurisdiction. For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and further concludes that Defendant's motion should be granted in its entirety.
Plaintiff, who immigrated to the United States from Iraq in 1997, was employed as a Foreign Language Speaking ("FLS") role player by non-party Goldbelt Eagle LLC ("Goldbelt") for training exercises on military bases. (Declaration of Plaintiff Omran AlKhazraji, Docket No. 23, ¶¶ 1, 6, 9, 11-15, Ex A; Deposition of Plaintiff, Docket No. 18-1, at 14, 16). On October 4, 2006, Plaintiff was playing the role of a Civilian on the Battlefield ( "COB"), specifically a sheik, in a military training scenario being conducted at Fort Dix in New Jersey. (Complaint, Docket No. 1, ¶¶ 5-7; Pl's Decl. ¶ 24). During the course of the training scenario, a Hand Grenade Simulator ("HGS") was thrown by a U.S. Army sergeant that was intended to land in a detonation pit in the training lane, however, the HGS failed to hit that target. (Deposition of Master Sergeant Darrell Eugene Lyon, Docket No. 18-2, at 19-20, 29-36, 39-40). Plaintiff "was struck by shrapnel and debris from [this] explosive device." (Complaint ¶ 6).
In April 2007, Plaintiff submitted a claim to the Department of the
Army seeking two million dollars for injuries sustained to his neck
and left shoulder as a result of this incident, (Docket No. 18-2 at
2), and this claim was amended in August 2008 to reflect four million
dollars in alleged damages. (Complaint ¶ 14). These claims were
rejected by the Department of the Army in January 2009. (Complaint ¶
14). Plaintiff commenced the instant action on June 3, 2009, alleging
that this Court has jurisdiction over his personal injury claim
pursuant to 28 U.S.C. § 1346 (b).*fn1 (Complaint ¶ 1).
Defendant asserted the lack of subject matter jurisdiction as an
affirmative defense in its Answer (Docket No. 5) and its Amended
Answer (Docket No. 12), and now moves pursuant to Rule 12 (b)(1) to
dismiss the complaint on that ground. (Docket No. 17).*fn2
Defendant also seeks an order
substituting the United States for the Department of the Army as
defendant. (Docket No. 17).
"A motion to dismiss under Rule 12 (b)(1) for lack of subject matter jurisdiction can raise a facial challenge based on the pleadings, or a factual challenge based on extrinsic evidence." SEG Vanguard General Corp. v. Ji, 195 F.Supp.2d 564, 566 (S.D.N.Y. 2002)(internal quotation marks omitted). Where, as here, a factual challenge is raised, "the court may resolve [any] disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits." Zappia Middle East Const. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). The party asserting jurisdiction has the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists, and such a showing "is not made by drawing from the pleadings inferences favorable to [that party]." APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003) (internal citation and quotation marks omitted); see Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007).
Plaintiff asserts that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1346 (b), which provides that district courts "shall have exclusive jurisdiction of civil actions on claims against the United States" (emphasis added). Initially, Plaintiff correctly concedes that the United States, rather than the Department of the Army, is the proper and only party that can be sued pursuant to § 1346. Pl's Mem. of Law, Docket No. 25, at 1; See 28 U.S.C. § 2679 (a)(the authority of a federal agency to sue and be sued does not authorize suits against an individual federal agency under § 1346); Myers & Myers, Inc. v. U.S. Postal Serv., 527 F.2d 1252, 1256 (2d Cir. 1975)(suit under the FTCA lies, if at all, only against the United States); Fisko v. U.S. General Serv. Admin., 395 F.Supp.2d 57, 59 (S.D.N.Y. 2005)(same). That part of Defendant's motion seeking substitution is therefore granted. Further, under the principle of sovereign immunity, it is axiomatic that the United States may not be sued without its consent. Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004), citing United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Thus, where, as here, the United States is the defendant, a court's jurisdiction is defined by the terms of the United States' consent to be sued. See Hamm, 483 F.3d at 137; Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996).
A. United States as Special Employer
In enacting § 1346, Congress waived sovereign immunity with respect to certain suits against the United States, including, as relevant here: personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346 (b)(1). Defendant argues that, even if a private person, the United States could not be held liable to Plaintiff in the instant case in accordance with the law of New Jersey, where the incident occurred, because his claim is barred under New Jersey's workers' compensation scheme. (Def's Mem. of Law, Docket No. 20, at 5-11).
"It is well settled under New Jersey law that an employee may have two employers for purposes of the work[ers'] compensation scheme - a primary employer and a 'special' employer," both of whom may be liable to that employee for workers' compensation. Roma v. United States, 344 F.3d 352, 364 (3d Cir. 2003), cert denied 543 U.S. 874 (2004); Blessing v. T.Shriver & Co., 228 A2d 711, 713 (N.J.Super.A.D. 1967). "[R]ecovery against one bars the employee from maintaining a tort action against the other for the same injury." Antheunisse v. Tiffany & Co., Inc., 551 A.2d 1006, 1007 (N.J.Super.A.D. 1998), certif. denied 115 N.J. 59 (1989); see Blessing, 344 A.2d 713. Here, Plaintiff concedes that he is receiving workers' compensation benefits as a result of his injury at Fort Dix. Pl's Dep. at 61-62. Defendant argues that it was a special employer of Plaintiff within the meaning of New Jersey's workers' compensation scheme, and therefore Plaintiff is barred from seeking further compensation from it.
Under New Jersey law, to determine whether a plaintiff is a 'special employee' of a defendant for workers' compensation purposes, a three-prong test is generally applied. Roma, 344 F.3d at 364; see Volb v. G.E. Capital Corp., 651 A2d 1002, 1005 (N.J. 1995).
When a general employer lends an employee to a special employer, the special employer becomes liable for ...