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Ross v. Dyncorp

March 31, 2005


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


This matter comes before the Court on the defendants' Motion [17] for Summary Judgment. Upon consideration of the defendants' motion, the opposition thereto, the reply brief, the applicable law, and the entire record herein, the Court concludes that the defendants' motion will be granted. Accordingly, summary judgment will be issued in favor of the defendants on all of the plaintiffs' claims, and those claims will be dismissed with prejudice. The Court's reasoning is set forth below. As summary judgment requires that the factual record be construed in the light most favorable to the non-moving party, the factual background recited below is drawn from the plaintiffs' complaint, the plaintiffs' opposition to the defendants' motion for summary judgment, and the parties' stipulations regarding facts that are undisputed.


This case involves wrongful death and survivorship actions brought by the family and estate of Alexander Wakefield Ross ("Ross") against Ross's former employer, DynCorp. Ross was employed by DynCorp as a computer technician under a Foreign Service Contract, which required that Ross work on projects undertaken by DynCorp pursuant to by a particular contract between DynCorp and the United States Department of State ("the Contract"). Under the Contract DynCorp was to provide aviation support services for the Columbian army's drug eradication efforts in Columbia, South America. See generally Contract No. S-OPRAQ-98-C-0051, Labeled as DYNC 00156-00362, and amendments thereto Labeled as DYNC 00001-00155.*fn1

DynCorp's primary responsibilities under the Contract were "1) the eradication of narcotics through aerial fumigation, 2) the training of pilots and mechanics to fly and maintain aircraft used in the counter-narcotics efforts, and 3) the interdiction of narcotics processing laboratories and narcotics being transported within the country;" Defs.' Stmt. of Material Facts Not in Dispute ("Defs.' Stmt."), ¶ 8; and its "secondary missions" were "transport of personnel and supplies, reconnaissance, search and rescue of personnel due to downed aircraft or hostile action by narcotics producers or traffickers, medical evacuation, ferrying of aircraft, and maintenance of aircraft." Id. at ¶ 9. The Contract was awarded to DynCorp after a competitive bid process opened in 1996; and was funded, for the most part, under the relevant appropriations-authorizing provisions the federal Foreign Assistance Act. See generally 22 U.S.C. §§ 2291 et seq. (entitled: "Chapter 32. Foreign Assistance; Subchapter I. International Development; Part VIII. International Narcotics Control"). However, during fiscal year 2002, DynCorp received approximately $1.3 million in supplemental funding from the United States Department of Defense rather than through the Foreign Assistance Act, in order to obtain a "blackhawk night vision goggle pilot to train Columbian Army aviators to fly with night vision goggles." Pls.' Stmt. of Material Facts in Dispute ("Pl.'s Stmt."), 4.*fn2

The Contract contains provisions that reference the federal Defense Base Act, 42 U.S.C. §§ 1651 et seq., which: (1) provide that DynCorp must "obtain Defense Base Act Insurance for all employees who will be working overseas under this contract[;]" Defs.' Stmt., ¶ 15; (2) "expressly reference[] the [Defense Base Act] in allocating funds for insurance[;]" id. at ¶ 15; and (3) "specif[y] that [DynCorp] shall procure [Defense Base Act] worker's compensation insurance." Id. at ¶ 17.

Ross, having been hired specifically to contribute to DynCorp's performance under the Contract, was stationed in Columbia. On or about August 1, 2002, Ross was instructed "to perform marshalling on an OV-10 aircraft stopped in Villa Garzon in the Putamayo province of Columbia," which involved "signaling the aircraft during take off and landing... while the aircraft was 'hot refueling', meaning [refueling] with its engines on and its propellers still running." Compl., ¶ 16. During this process, Ross "sustained massive injuries to the right side of his face and head[,]" which injuries were inflicted by "the propeller of an OV-10 twin engine spray aircraft." Id. at ¶ 18. On August 1, 2002, Ross died as a result of these injuries.

Although some of the facts surrounding the return of Ross's remains to the plaintiffs -- his family -- in Panama are disputed by the defendants, the Court will rely upon the plaintiffs' characterization of these events in keeping with the necessity of factual review favoring the nonmoving party in a summary judgment inquiry. The plaintiffs learned of Ross's death on August 1, 2002, and informed DynCorp that same day of their wish that the remains first be sent to Florida for an autopsy and then returned to Ross's family in Panama. See Pls.' Stmt. at 5; Pls.' Opp. to Defs.' Mot. for Summary Judgment ("Pls.' Opp."), Ex. F (Ross Aff.), at ¶¶ 1, 6. DynCorp, however, professed uncertainty as to whether DynCorp would absorb the expenses of transporting the remains and, indeed, as to whether the remains could be shipped at all. See id. at ¶6. On August 2, the family again contacted DynCorp to request that Ross's remains be forwarded to Florida as soon as possible, at which time a DynCorp representative assured the plaintiffs that the remains would be transported the following day. See id. at ¶ 7. But the remains were not shipped as promised, and the distraught family repeatedly attempted to contact DynCorp on August 3 and 4 to determine when the remains would be moved to Florida. See id. at ¶¶ 8-10. It is undisputed that the Columbian government was closed on August 3 and 4 for the weekend and that this closure made arranging the transport on those days impossible. See id. at ¶¶ 26. By Monday, August 5, the plaintiff family members were "suffering from extreme mental anguish" as a result of DynCorp's twin failures to comply with their request regarding the transportation of the remains and to provide the family with information regarding the circumstances of Ross's death. See Pls.' Opp. at 22; Pls.' Opp., Ex. F (Ross Aff.), at ¶ 13; Pls.' Opp., Ex. G (Caceres Aff.), at ¶ 10.

On Tuesday, August 6, unable to bear any further delay, the Ross's family informed DynCorp that they no longer wanted Ross's remains sent to Florida, and requested that they instead be forwarded immediately to the family in Panama. See Pls.' Opp., Ex. F (Ross Aff.), at ¶ 14. Columbian government offices were again closed on Wednesday, August 7, for the presidential inauguration. See id. at ¶ 29. Ross's remains were delivered to his family in Panama on Thursday, August 8, 2002 -- seven days after the day he died. See Def.'s Stmt., ¶ 23.

Throughout the time-period during which DynCorp was attempting to arrange for transportation of Ross's remains, "DynCorp personnel were in regular contact with plaintiffs Michael Ross and Ann Ross via telephone and email." Id. ¶ 31. Additionally, the State Department conducted an investigation of Ross's accident and subsequently prepared an accident investigation report that was delivered to DynCorp in October, 2003. Id. ¶¶ 35-36.

The plaintiffs filed this suit against DynCorp on December 6, 2002. Their complaint contains the following counts arising out of Ross's injury and subsequent death: (1) Negligence, see Compl. at 9; (2) Negligence in the Conduct of an Ultrahazardous Activity, with the "ultrahazardous activity" being the so-called "hot refueling" procedure, see Compl. at 10; (3) Negligence Per Se, alleging that DynCorp violated its internal "regulations and policies and/or those of the U.S. State Department Operation Directives for Columbia, the U.S. Federal Aviation Authority, and/or industry standards" by allowing Ross to participate in the "hot refueling" procedure, see Compl. at 12; and (4) Negligent Supervision, see Compl. at 13. Concerning DynCorp's conduct in returning Ross's remains to his family and communicating with the family about the circumstances of Ross's death, the complaint charges both Intentional Infliction of Emotional Distress (Count VII), see Compl. at 17, and Negligent Infliction of Emotional Distress (Count VIII), see Compl. at 18.*fn3

On January 27, 2003, DynCorp moved to dismiss the plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state claims on which relief may be granted, arguing: (1) that the plaintiffs' negligence-based claims, in the aggregate, are barred by the exclusive remedy provisions of the federal Defense Base Act, which incorporates the federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq.; and (2) that the plaintiffs have failed to allege sufficient facts to state claims for intentional or negligent infliction of emotional distress. By Order issued September 30, 2003, this Court denied the defendants' amended motion to dismiss without prejudice and authorized the parties to conduct ninety days of discovery, "limited to discovering facts necessary to determine whether this case may proceed in this Court." Order, issued Sept. 30, 2003, Docket No. 11. This Order anticipated the filing of a motion for summary judgment on the issue of whether the bulk of the plaintiffs' claims are barred by the Defense Base Act, and held in abeyance the Court's disposition of the defendants' arguments in favor of dismissal of the plaintiffs' emotional distress claims by denying them without prejudice.

Predictably, the defendants filed the present motion for summary judgment on April 5, 2004. Therein, the defendants reinstate their argument that Ross's employment pursuant to the Contract falls within the provisions of the Defense Bases Act, which, by its incorporation of the Longshore Act, makes worker's compensation payments the sole remedy available to the plaintiffs for Ross's death. Additionally, the defendants renew their argument that the plaintiffs fail to sufficiently state claims for intentional and negligent infliction of emotional distress, warranting dismissal of those claims under Rule 12(b)(6). Alternatively, the defendants contend that they are entitled to judgment as a matter of law because no reasonable jury could find in favor of the plaintiffs on their emotional distress claims on the basis of the evidence presently in the record.


Upon reviewing the parties' arguments and all of the evidence in the record, the Court concludes that the plaintiffs fail to create any genuine factual dispute concerning the applicability of the Defense Base Act ("DBA") to the plaintiffs' negligence-based claims. As the plaintiffs do not dispute that those claims share a sufficiently similar legal basis to allow them to be aggregated for the purpose of determining the DBA's applicability, this Court will grant summary judgment in favor of the defendants on all of the plaintiffs' negligence-based claims on the basis of its resolution of the DBA issue alone. Furthermore, the Court concludes that the plaintiffs have failed to adduce sufficient evidence on which any reasonable jury might find the defendants liable for intentional infliction of emotional distress, and thus grants summary judgment for the defendants on that claim as well. Finally, because the plaintiffs conceded at the motion to dismiss stage that their negligent infliction of emotional distress claim is insufficient as a matter of law, that claim will be dismissed under Rule 12(b)(6) without further discussion here. See Pls.' Opp. to Defs.' Amended Mot. to Dismiss, Docket No. 7, at 11 n.8.*fn4

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, a court must grant summary judgment when the pleadings, affidavits, depositions, answers to interrogatories, and admissions of record demonstrate that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A disputed issue of material fact is genuine and therefore precludes summary judgment where the Court determines that a reasonable jury could conceivably find in favor of the non-moving party on that factual issue. Anderson, 477 U.S. at 248. However, even where a genuine issue exists as to some material fact, the movant is entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

As a general rule, when adjudicating a motion for summary judgment, the Court must "assume the truth of all statements proffered by the party opposing summary judgment" and construe all evidence in favor of the non-moving party. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). See Anderson, 477 U.S. at 255; Carter v. Greenspan, 304 F. Supp. 2d 13, 21 (D.D.C. 2004). Indeed, the Court must "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). See also Washington Post Co. v. United States Dep't of Health & Human Serv., 865 F.2d 320, 325 (D.C. Cir. 1989). However, "some statements are so conclusory as to come within an exception to" the general rule that the non-movant's statements must be fully credited when adjudicating a motion for summary judgment. Greene, 164 F.3d at 675 (citing as examples Delange v. Dutra Constr. Co., 153 F.3d 1055, 1058 (9th Cir. 1998); Lefkowitz v. Citi-Equity Group, Inc., 146 F.3d 233, 240 (5th Cir. 1998)). Thus "wholly conclusory statements for which no supporting evidence is offered" need not be taken as true for summary judgment purposes. Carter, 304 F. Supp. 2d at 21 (citing Greene, 164 F.3d at 674-75).

In order to survive a motion for summary judgment, the non-moving party must establish more than the "mere existence of a scintilla of evidence" in support of its claims. Anderson, 477 U.S. at 252. In order to prevail, the non-movant's opposition must contain more than "unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial." Carter, 304 F. Supp. 2d at 21. See FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 324. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50. In fact, summary judgment may issue where the movant points to a substantial lack of evidence in the non-movant's case; see ...

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