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Quigley v. Aptos/La Selva Fire Protection District

United States District Court, Ninth Circuit

May 21, 2013

REBECCA MEGAN QUIGLEY, Plaintiff,
v.
APTOS/LA SELVA FIRE PROTECTION DISTRICT, et al., Defendants.

ORDER

LAWRENCE K. KARLTON, District Judge.

This action arises from injuries Plaintiff Rebecca Quigley, a former firefighter with the United States Forest Service, suffered when she was allegedly run over by a Plumas Sanitation truck at the Silver Fire Base Camp.

Presently before the court is Plaintiff's motion to lift the court's stay of Plaintiff's previously filed motion to remand. See Pl's Mots., ECF No. 27 (Motion for Relief of Stay), 9 (Motion to Remand). For the reasons provided herein, the court GRANTS Plaintiff's motion to lift the stay of proceedings and GRANTS Plaintiff's motion to remand.

I. BACKGROUND

On December 3, 2010, Plaintiff filed the operative complaint in Plumas County Superior Court. See Pl's First Am. Compl., ECF No. 1, Att. 1., at 9-19.[1] Plaintiff asserted causes of action against all Defendants for negligence, dangerous condition of public property, and failure to warn. Id. at 13-18. Plaintiff also asserted a cause of action against Defendant Steven H. Siler for the intentional tort of driving while intoxicated. Id. at 18-19. Plaintiff sought compensatory damages, punitive damages, prejudgment interest, and the costs of suit. Id. at 19. Plaintiff did not name the United States Forest Service ("USFS"), the Department of Agriculture, or the United States Government as defendants in the action. See generally id.

On October 12, 2012, Defendants filed a motion for summary judgment in the Plumas County Superior Court, arguing that Defendants Rich Rubin, Mike Jellison, Frank DelCarlo, and Dave Kirste were functionally employees of the USFS at all times mentioned within Plaintiff's First Amended Complaint and, therefore, the state court lacked subject matter jurisdiction over the matter, pursuant to 28 U.S.C. § 1346(b)(1). See Defs' Mot. Summary Judgment, ECF No. 1, Att. 1, at 38-41.

On November 9, 2012, Defendant Plumas Sanitation, with consent of all other Defendants, removed the action to this court, asserting that the action falls "within the original jurisdiction of this Court and [is] properly removed under 28 U.S.C. §§ 1346, 1441, and 1446" because "the Individual Defendants were federal employees." Notice of Removal, ECF No. 1, at 4.

A. Plaintiff's Motion to Remand

On December 7, 2012, Plaintiff filed a motion to remand the action to state court. Pl's Mot., ECF No. 9. Plaintiff argued, inter alia, that: (1) it remains a disputed question of fact as to whether Defendants were federal employees or contractors; (2) the Defendants at issue did not raise federal employment as an affirmative defense in their answers and failed to seek certification from the U.S. Attorney General for their defense, pursuant to 28 U.S.C. § 2679, and instead, only raised federal immunity as an affirmative defense in their motion for summary judgment; and (3) the court lacks derivative jurisdiction over federal employees on removed cases. Id. at 4-12.

Defendant Plumas Sanitation, joined by the remaining Defendants, opposed Plaintiff's motion to remand. See Defs' Mots., ECF Nos. 12-16. Defendants argued, in part, that it was "premature to make a determination with regard to whether defendants were federal employees, as further information must be gathered" and "[u]ntil that determination is made, this Court has jurisdiction over the matter." Def's Mot., ECF No. 13, at 2. Defendants further asserted that, on or about December 27, 2012, "a formal written request to the federal government's designated agent was made on behalf of the Individual Defendants seeking statutory certification of their federal employment status at the time of the subject fire" and that the Defendants "presently await the Federal Government's and Attorney General's certification of their federal employment" status. Coleman Decl., ECF No. 16, Att. 2, at 2; see also Defs' Req., ECF No. 16, Att. 2, at 7-9.

On January 15, 2013, this court stayed resolution of Plaintiff's motion to remand, pending a response by the Attorney General as to Defendants' request for certification of their federal employment status at the time of the incident alleged. Order, ECF No. 23.

B. Plaintiff's Motion for Relief of Stay

On April 24, 2013, Defendants notified the court that their application seeking certification by the Attorney General of their federal employment status was denied, but that Defendants have sought reconsideration of the Attorney General's written opinion. See Defs' Status Update, ECF No. 26.

The Attorney General's written opinion, dated April 18, 2013, provides, inter alia, that: (1) Defendants' removal of the suit to district court "was improper because it occurred before the individual defendants were certified as federal employees acting within the scope of their employment";(2) upon careful consideration of the certification requests and "multiple interviews" conducted "over two months, including interviews of the IMT Incident Commander and the Deputy Incident Commander, " the United States Attorney has determined that "Defendants Barnhart, DelCarlo, Jellison, Kirste, and Rubin were not federal employees, ' a determination governed by federal law"; and (3) the U.S. Forest Service "did not control the detailed physical performance or substantially supervise the day-to-day operations of the Local Firefighter Defendants, " and "the Forest Service could not and did not hire or fire the Local Firefighter ...


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