Free Answer to Complaint - District Court of California - California

Case 3:08-cv-02598-JSW

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GREGORY G. KATSAS Acting Assistant Attorney General JOSEPH P. RUSSONIELLO United States Attorney R. MICHAEL UNDERHILL Attorney in Charge, West Coast Office Torts Branch, Civil Division R. SCOTT BLAZE Senior Admiralty Counsel Torts Branch, Civil Division U.S. Department of Justice 7-5395 Federal Bldg., P.O. Box 36028 450 Golden Gate Avenue San Francisco, California 94102-3463 Telephone: (415) 436-6635 E-mail: [email protected] Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SONJA M. CLEMENTS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) Civil No. C-08-2598-EMC In Admiralty

ANSWER OF DEFENDANT, UNITED STATES OF AMERICA, TO PLAINTIFF'S COMPLAINT

For its answer to plaintiff's complaint, the United States admits, denies and otherwise
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responds as follows:
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1.
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Denies the allegations of paragraph 1 for lack of knowledge or information

sufficient to form a belief as to the truth thereof . 2.
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Denies every allegation of paragraph 2, except admits that this is an admiralty

and maritime claim within the meaning of Rule 9(h) of the Fed.R.Civ.P. and that the United States is a sovereign which has consented to be sued, if at all, solely pursuant to the terms
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and conditions of the Clarification Act, 50 App. U.S.C.A. §1291, incorporating the consistent
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ANSWER OF DEFENDANT, USA, TO PLAINTIFF'S COMPLAINT

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provisions of the Suits in Admiralty Act, 46 U.S.C. §§ 30901-30918. If any allegations of this paragraph are deemed to be of material fact, they are denied. 3. Admits that the United States owned the M/V CAPE HENRY, a public vessel

of the United States, on or about June 2, 2007. 4. 5. Admits the allegations of paragraph 4. Admits that as of May 16, 2008, M/V CAPE HENRY was berthed in San

Francisco, California. Denies all remaining allegations of Paragraph 5. 6. 7. 8. 9. 10. 11. 12. 13. Admits the allegations of paragraph 6. Admits the allegations of paragraph 7. Denies the allegations of paragraph 8. Denies the allegations of paragraph 9. Admits the allegations of paragraph 10. Denies the allegations of paragraph 11. Denies the allegations of paragraph 12. Admits that plaintiff's counsel, Carolyn Latti, submitted a letter to the

Maritime Administration dated January 10, 2008 entitled "presentation of claim." Denies the allegations concerning Pacific-Gulf Marine for lack of information or knowledge. The remaining allegations of paragraph 13 contain conclusions of law to which no response is required. To the extent they are deemed to contain allegations of material fact, they are denied. 14. Admits the Maritime administration received a letter from Carolyn Latti, dated

January 10, on January 16, 2008. Denies the allegations concerning Pacific-Gulf Marine for lack of information or knowledge. Denies for lack of information or knowledge the remaining allegations of paragraph 14. 15. The allegations of paragraph 15 contain conclusions of law to which no

response is required. To the extent they are deemed to contain allegations of material fact,

ANSWER OF DEFENDANT, USA, TO PLAINTIFF'S COMPLAINT

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they are denied. 16. Denies every allegation of paragraph 16, except admits that this is an admiralty

and maritime claim within the meaning of Rule 9(h) of the Fed.R.Civ.P. and that the United States is a sovereign which has consented to be sued, if at all, solely pursuant to the terms and conditions of the Clarification Act, 50 App. U.S.C.A. §1291, incorporating the consistent provisions of the Suits in Admiralty Act, 46 U.S.C. §§ 30901-30918. If any allegations of this paragraph are deemed to be of material fact, they are denied. 17. The allegations of paragraph 17 contain conclusions of law to which no

response is required. To the extent they are deemed to contain allegations of material fact, they are denied. COUNT I 18. The United States reasserts and repeats the responses to each of the foregoing

paragraphs as though fully set out herein. 19. 20. 21. Denies the allegations of paragraph 19. Denies the allegations of paragraph 20. The allegations of paragraph 21 contain conclusions of law to which no

response is required. To the extent they are deemed to contain allegations of material fact, they are denied. COUNT II 22. The United States reasserts and repeats the responses to each of the foregoing

paragraphs as though fully set out herein. 23. 24. 25. Denies the allegations of paragraph 23. Denies the allegations of paragraph 24 The allegations of paragraph 25 contain conclusions of law to which no

response is required. To the extent they are deemed to contain allegations of material fact, they are denied.

ANSWER OF DEFENDANT, USA, TO PLAINTIFF'S COMPLAINT

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ANSWER OF DEFENDANT, USA, TO PLAINTIFF'S COMPLAINT

COUNT III 26. The United States reasserts and repeats the responses to each of the foregoing

paragraphs as though fully set out herein. 27. Denies the allegations of paragraph 27. COUNT IV 28. The United States reasserts and repeats the responses to each of the foregoing

paragraphs as though fully set out herein. 29. 30. Denies the allegations of paragraph 29. Denies the allegations of paragraph 1 for lack of knowledge or information

sufficient to form a belief as to the truth thereof. 31. 32. Denies the allegations of paragraph 31. Denies the allegations of paragraph 32. FIRST AFFIRMATIVE DEFENSE 33. The complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE 34. Any damages or injuries plaintiff alleges to have sustained, which are denied

by defendant United States, were not caused by any act or omission on the part of United States, its vessel, crew, servants, employees, agents, persons or entities for whose acts it is responsible; rather such alleged injuries or damages were caused by persons or entities for whose acts the United States is not responsible, including, but not limited to, plaintiff's supervisor(s) and his employer. THIRD AFFIRMATIVE DEFENSE 35. If plaintiff sustained damages or injuries as a result of matters alleged in his

complaint, which is denied, those damages or injuries were caused in whole or in part by the negligence and fault of plaintiff and were not caused or contributed to in any manner by any negligence, fault or breach of duty on the part of defendant United States, its agents, servants,

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employees, crew, vessel or others for whom it is responsible. FOURTH AFFIRMATIVE DEFENSE 36. This court lacks subject matter jurisdiction over plaintiff's action based on the

doctrine of separation of powers. Any acts or omissions by or in behalf of the United States which plaintiff alleges caused or contributed to his alleged injuries or damages were discretionary in nature and not reviewable by this Court. FIFTH AFFIRMATIVE DEFENSE 37. This court lacks subject matter jurisdiction over plaintiff's action based on

plaintiff's failure to comply with the jurisdictional conditions for applicable waivers of sovereign immunity. SIXTH AFFIRMATIVE DEFENSE 38. Plaintiff has failed to mitigate her damages, if any. SEVENTH AFFIRMATIVE DEFENSE 39. Plaintiff is not entitled to attorneys fees. EIGHTH AFFIRMATIVE DEFENSE 40. Plaintiff is not entitled to interest except in strict in compliance with any

applicable waiver of sovereign immunity. NINTH AFFIRMATIVE DEFENSE 41. /// /// /// /// /// /// /// Plaintiff has failed to assert facts sufficient to establish proper venue.

ANSWER OF DEFENDANT, USA, TO PLAINTIFF'S COMPLAINT

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WHEREFORE, the United States prays that plaintiff's complaint against it be dismissed with prejudice, with costs, fees and expenses awarded to the United States, and for such further relief as this Court may deem appropriate. Dated: August 4 , 2008. GREGORY G. KATSAS Acting Assistant Attorney General JOSEPH P. RUSSONIELLO United States Attorney R. MICHAEL UNDERHILL Attorney in Charge, West Coast Office Torts Branch, Civil Division s/R. Scott Blaze R. SCOTT BLAZE Senior Admiralty Counsel Torts Branch, Civil Division U.S. Department of Justice Attorneys for Defendant United States of America

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ANSWER OF DEFENDANT, USA, TO PLAINTIFF'S COMPLAINT

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CERTIFICATE OF SERVICE
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I hereby certify that, on the dates and by the methods of service noted below, a true
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and correct copy of the forgoing ANSWER OF DEFENDANT, UNITED STATES OF
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AMERICA, TO PLAINTIFF'S COMPLAINT was served on the following at their last
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known addresses:
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Served Electronically through CM/ECF:
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ANSWER OF DEFENDANT, USA, TO PLAINTIFF'S COMPLAINT

Carolyn May Latti David French Anderson Samuel Lasser
Served by First Class Mail:

[email protected] [email protected] [email protected]

August August August

4 , 2008 4 , 2008 4 , 2008

Arne J. Nelson Law Offices of Arne J. Nelson 110 Sutter Street, Suite 400 San Francisco, CA 94104

August

4 , 2008

s/R. Scott Blaze R. SCOTT BLAZE

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Case No. C08-2598 EMC