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Janelle Urata v. United States of America; Alamo Financing

December 13, 2012

JANELLE URATA,
PLAINTIFF,
v.
UNITED STATES OF AMERICA; ALAMO FINANCING, LP, A DELAWARE LIMITED PARTNERSHIP; DOES 1-50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are the Motion to Dismiss Removal and Substitution filed by Plaintiff Janelle Urata (ECF No. 4) and the Motion to Dismiss for Lack of Jurisdiction filed by the United States of America (ECF No. 9).

BACKGROUND

On July 11, 2011, Plaintiff initiated this action by filing a Complaint against Ileana Munoz ("Munoz") and Alamo Financing, LP in the Superior Court of California for the County of San Diego. (ECF No. 1). Plaintiff asserted claims of motor vehicle and general negligence; Plaintiff alleged that on June 24, 2009, Munoz was driving a vehicle rented from Alamo when she "violated California Vehicle Code section 21658(a) for making an unsafe movement (lane change) colliding with the Plaintiff's vehicle causing it to veer off of the roadway and strike an 'Exit' sign post causing major property damage and severe personal injuries to Plaintiff." (ECF No. 1-1 at 6).

On March 7, 2012, Plaintiff filed an administrative claim with the United States Navy ("Navy"), which stated:

Janelle Urata was driving a vehicle on Interstate I-5 South and was struck on the left rear side by a vehicle driven by Ileana Munoz travelling [sic] at approximately 40 mph who swerved into Ms. Urata's vehicle without signaling [sic]. The collision pushed Ms. Urata's vehicle off the road into a freeway sign and down an embankment. Ms. Munoz admitted fault for the collision. Ms. Munoz was in civilian clothing and driving an Alamo rental car. More than two years after the collision, Ms. Urata learned that Ms. Munoz had visited San Diego to perform training with the U.S. Navy and was on active duty at the time of the subject incident. (ECF No. 9-2 at 16-17).

On May 25, 2012, the United States removed the matter to this Court and filed a Certification of Scope of Employment for Defendant Munoz. (ECF No. 1-3). In the Certification, the United States Attorney, Laura E. Duffy, stated:

Pursuant to the provisions of 28 U.S.C. § 2679 and pursuant to the authority vested in the United States Attorney to make scope-of-employment certifications under 28 C.F.R. § 15.3, as expressly redelegated to me by the United States Attorney, I hereby certify that I have read the complaint in the above-entitled action, as well as other documentation provided by the Department of the Navy. On the basis of the information now available, I hereby find and certify that Ileana Munoz, an individually named Defendant, was acting within the scope of her employment as a member of the armed forces of the United States with respect to the incidents alleged in Plaintiff's complaint. Accordingly, pursuant to 28 U.S.C. § 2679(d), the tort claims alleged in the complaint against Ileana Munoz are deemed to have been brought against the United States under the provisions of the Federal Tort Claims Act.

Id. at 1.

On June 19, 2012, Plaintiff filed a Motion to Dismiss Removal and Substitution. Plaintiff requested an opportunity to depose Munoz and/or her commanding officer regarding the issue of whether Munoz was acting within the scope of her employment at the time of the incident. (ECF No. 4).

On June 26, 2012, the United States filed a Reply to the Motion to Dismiss Removal and Substitution filed by Plaintiff. (ECF No. 5). The United States submitted a copy of Munoz's travel orders, dated June 18, 2009, which stated that her period of duty would be: "22 JUN 2009 TO 26 JUN 2009 FOR 5 DAYS." (ECF No. 5-1 at 2). Munoz's travel orders stated:

REPORT FOR ACTIVE DUTY FOR TRAINING AOT SPECIAL TO THE COMMANDING OFFICER, NOMI DET NSTI ASTC MIRAMAR, PO BOX 452059, SAN DIEGO, CA 921452059 NO LATER THAN 0700 ON 22 JUN 2009 FOR DUTY WITH SWIM/PHYS REFRESHER COURSE, UIC: 39683. IF THESE ORDERS START IMMEDIATELY AFTER AN INACTIVE DUTY ORDER (IDTT), YOU ARE ADVISED THAT THESE ORDERS MUST START FROM YOUR HOME ADDRESS (PMA) . FAILURE TO START FROM HOME MAY RESULT IN PAY AND/OR ENTITLEMENT ISSUES WHEN LIQUIDATING YOUR ORDERS....

TRAVEL VIA COMMERCIAL TRANSPORTATION UTILIZING CENTRALLY BILLED ACCOUNTS (CBA) IS DIRECTED. THE COMMERCIAL TRAVEL OFFICE (CTO) WILL PROVIDE YOU WITH ACTUAL TICKETS OR COORDINATE ELECTRONIC TICKETING AS REQUIRED. IF YOU DO NOT EXECUTE THESE ORDERS, RETURN THE ORDERS AND TICKET TO THE ISSUING COMMAND IN PERSON OR BY CERTIFIED MAIL. REIMBURSEMENT FOR YOU PURCHASING YOUR OWN TICKET(S) IS NOT AUTHORIZED. (JFTR U3002, U3125 AND U3140).

RENTAL VEHICLE IS AUTHORIZED (JFTR U3415) AT SAN DIEGO, CA (22 JUN 2009 THRU 26 JUN 2009) COMPACT VEHICLE CLASS. QUARTERS ARE AVAILABLE AT SAN DIEGO, CA (22 JUN 2009 THRU 26 JUN 2009). IF QUARTERS ARE NOT AVAILABLE CONTACT THE APPROPRIATE MILITARY REPRESENTATIVE FOR A WRITTEN STATEMENT....

Id. at 2-3. The United States submitted a copy of Munoz's rental vehicle agreement with Alamo, which stated that the vehicle was rented by Munoz on June 24, 2009 at 12:02 A.M. at the San Diego Airport; the agreement lists June 26, 2009 at 2:30 P.M. as the scheduled return date. Id. at 6. The United States submitted a training qualification letter sent to Munoz by the Department of the Navy which stated: "In accordance with reference (a), PO2 ILEANA MUNOZ has received AIRCREW REFRESHER NASTP TRAINING FOR CLASS 4 AIRCRAFT on 25 Jun 2009 at Aviation Survival Training Center MIRAMAR.... PO2 ILEANA MUNOZ received a grade of Q. All required modules were completed." Id. at 11. The United States submitted a "traffic collision report," which states that the collision between Munoz and Plaintiff occurred on June 24, 2009 at 12:30 A.M. on "I-5 S/B ... .1 MILE(S) NORTH OF SR-163" in San Diego. Id. at 5-1 at 9.

On July 12, 2012, the Court issued an Order which stated: "Plaintiff may depose Munoz and/or her commanding officer regarding the issue of whether Munoz was acting within the scope of her employment at the time of the incident. The parties are referred to the Magistrate Judge for any discovery disputes." (ECF No. 7 at 3). The Court permitted supplemental briefing regarding the Certification of Scope of Employment for Defendant Munoz, stating: "Plaintiff may file a supplemental brief no later than 60 days from the date of this order. Defendants may file a supplemental reply no later than 75 days from the date of this order." Id.

On July 17, 2012, the United States filed a Motion to Dismiss for Lack of Jurisdiction. (ECF No. 9). On August 6, 2012, Plaintiff filed a Response. (ECF No. 11). On August 13, 2012, the United States filed a Reply. (ECF No. 12).

On September 10, 2012, Plaintiff submitted a Supplemental Response to the Reply to the Motion to Dismiss Removal and Substitution filed by the United States. (ECF No. 13). Plaintiff submitted the written deposition of Munoz, containing questions and written responses, which stated in part:

WRITTEN DEPOSITION QUESTION NO. 2 Were YOU paid for YOUR travel time from Hawaii to San Diego to participate in the COURSE?

ANSWER TO DEPOSITION QUESTION NO. 2 Yes, I was paid continuously from the time I boarded my flight from Hawaii until the time I landed back in Hawaii and was deactivated. I also received base pay and per diem for this time.

WRITTEN DEPOSITION QUESTION NO. 3 Where did the COURSE take place?

ANSWER TO DEPOSITION QUESTION NO. 3 MCAS Miramar, San Diego, California WRITTEN DEPOSITION QUESTION NO. 4 Were YOU given any free time while in San Diego before or after the COURSE? If yes, what did YOU do on YOUR free time?

ANSWER TO DEPOSITION QUESTION NO. 4 I had no free time before the course. I had no free time after the course.... WRITTEN DEPOSITION QUESTION NO. 7 Who booked YOUR plane flight and ...


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