United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER UNITED STATES DISTRICT JUDGE.
case involves tort claims arising out of a sidewalk collision
between a jogger and a pedestrian. Plaintiff Patrick Lennon
claims that he suffered injuries when James Maddan, an
officer-cadet in the British Armed Forces who was jogging in
midtown Manhattan, collided with him. Lennon brings
negligence claims under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 2671, et
seq., not only against Maddan, but also against the
United States of America (the "United States" or
the "Government") and the United Kingdom. The
United States moves to dismiss the claim against it under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction, arguing that it is entitled to sovereign
immunity. For the reasons that follow, the Court grants that
2014, Maddan was a cadet in training at the Royal Military
Academy Sandhurst ("RMAS"). Barr Decl. ¶ 4;
Maddan Statement at 1. In April 2014, he and 24 other cadets
were chosen by RMAS to participate in the Sandhurst
Competition, an annual international military competition
scheduled for April 11 and 12, 2014, at the United States
Military Academy at West Point. Barr Decl. ¶¶ 4-5;
Maddan Statement at 1.
week before the competition, Maddan and his fellow RMAS
cadets were billeted in a New York City hotel, in order to
acclimate and prepare for the competition. FAC ¶¶
14, 18-19; Barr Decl. ¶¶ 6-7; Maddan Statement at
1. All RMAS cadets are expected to maintain their fitness;
fitness is essential to performance in the Sandhurst
Competition. Barr Decl. ¶ 7; Maddan Statement at 1. To
prevent "fitness fade, " the cadets took training
runs in New York City. Maddan Statement at 1. The cadets took
these runs on their own initiative, and the timing and routes
of these runs were determined solely by the cadets. Barr
Decl. ¶ 7.
such run took place at approximately 7:30 a.m. on the morning
of April 5, 2014. Barr Decl. ¶ 7; Maddan Statement at 1.
During the run, as Maddan turned to speak to a fellow cadet,
he collided with Lennon, who was waiting at a Lexington
Avenue crosswalk. FAC ¶¶ 4, 7; Maddan Statement at
1. Struck from behind, Lennon fell to the pavement. FAC
¶ 7; Maddan Statement at 1. Lennon suffered head and
knee injuries. FAC ¶ 29. The latter required
arthroscopic surgery and resulted in a permanent disability.
April 13, 2016, Lennon submitted a claim for $250, 000 to the
United States Department of the Army. FAC ¶ 22. On July
13, 2016, the Department of the Army rejected this claim.
December 28, 2016, Lennon filed a complaint in this action.
Dkt. 1. On February 10, 2017, all three defendants were
served. Dkts. 3-5. On June 14, 2017, following two
extensions, Dkts. 7, 9, the Government moved to dismiss for
lack of subject matter jurisdiction, Dkt. 13. On July 20,
2017, Lennon filed the FAC. Dkt. 24. On August 10, 2017, the
Government filed the instant motion to dismiss on the same
grounds. Dkt. 27. On September 14, 2017, Lennon filed a
memorandum in opposition, Dkt. 31, and on September 28, 2017,
the Government filed a reply, Dkt. 32.
and the United Kingdom have not appeared in this case.
Applicable Legal Standards
standards governing subject matter jurisdiction in this case
turn on the obligations of the United States under the Status
of Forces Agreement, an international pact under which, in
some circumstances, the United States may be liable for
tortious conduct in this country by service members of other
North Atlantic Treaty Organization ("NATO")
countries. The Court first reviews the governing standards
and then applies them to Lennon's allegations as to