Fathman v. United States Navy

723 F. Supp. 1243, 1989 U.S. Dist. LEXIS 14004, 1989 WL 132186
CourtDistrict Court, S.D. Ohio
DecidedOctober 31, 1989
DocketCiv. No. C-1-89-288
StatusPublished
Cited by2 cases

This text of 723 F. Supp. 1243 (Fathman v. United States Navy) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fathman v. United States Navy, 723 F. Supp. 1243, 1989 U.S. Dist. LEXIS 14004, 1989 WL 132186 (S.D. Ohio 1989).

Opinion

ORDER

CARL B. RUBIN, Chief Judge.

This matter is before the Court on Defendant the United States Navy’s motion to dismiss the complaint pursuant to Fed.R. Civ.P. 12(b)(6) (doc. no. 6). Plaintiff has filed a memorandum in opposition to the motion (doc. no. 7) and Defendant has filed a reply (doc. no. 8) thereto.

For the reasons stated below, Defendant’s motion is GRANTED.

Plaintiff Lawrence Fathman was granted an “undesirable discharge” from the United States Navy on March 19, 1954. Thirty-one years later, in 1985, the Plaintiff petitioned the Board of Corrections of Naval records (BCNR) and requested under 10 U.S.C. § 1552 that his naval record be corrected to show a more favorable type of discharge. The Plaintiff was successful and on December 4,1986 the BCNR recommended that the Plaintiffs naval record reflecting an undesirable discharge on March 19, 1954 be corrected to show a general discharge by reason of unfitness. On December 10, 1986 the Secretary of Navy ordered that this recommendation be accepted and the Plaintiff’s discharge was upgraded.

On July 4, 1988, pursuant to the Federal Tort Claims Act (FTCA), the Plaintiff filed an administrative tort claim seeking damages in the amount of $1,824,071.00, for personal injury and property damage allegedly resulting from the U.S. Navy’s erroneous undesirable discharge of the plaintiff in 1954. On November 8, 1988, the Plaintiff’s administrative claim was denied by the U.S. Navy.

On April 19, 1989 Plaintiff filed this action in the United States District Court for the Southern District of Ohio under the Federal Tort Claims Act. In addition, Plaintiff claims that his action is filed pursuant to 10 U.S.C. § 1552. Plaintiff alleges herein that the U.S. Navy negligently, recklessly and or intentionally erroneously gave him an undesirable discharge which directly and permanently resulted in substantial post-service vocational and psychological injury to him. Subsequently, the United States Navy moved the Court under Fed.R.Civ.P. 12(b)(6) to dismiss the claims.

A Rule 12(b)(6) motion examines whether a cognizable claim has been pleaded in the complaint. Rule 8(a) sets forth the basic federal pleading requirement that a pleading “shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). The objective of Rule 8(a)(2) is to provide the defendant with “fair notice of what plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The standard articulated in Jones v. Sherrill, 827 F.2d 1102, 1103 (6th Cir. 1987) states:

In reviewing a dismissal under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826 [105 S.Ct. 105, 83 L.Ed.2d 50] (1984). The motion to dismiss must be denied unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief. Id. at 158; Conley v. Gibson, 355 U.S. 41 [78 S.Ct. 99, 2 L.Ed.2d 80] (1957).

Although this standard for Rule 12(b)(6) dismissals is quite liberal, more [1245]*1245than bare assertions of legal conclusions are ordinarily required to satisfy federal notice pleading requirements. 5 C. Wright & A. Miller, Federal Practice & Procedure 1357 at 596 (1969). “In practice, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984) (quoting In re: Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir.1981), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985); see also Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir.1984). When scrutinizing the complaint, all well-pleaded facts are construed liberally in favor of the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

The United States Court of Appeals for the Sixth Circuit recently stated:

“[W]e are not holding the pleader to an impossibly high standard; we recognize the policies behind Rule 8 and the concept of notice pleading. A plaintiff will not be thrown out of court for failing to plead facts in support of every arcane element of his claim. But when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.”

Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir.1988); McGregor v. Industrial Excess Landfill, Inc., 856 F.2d 39 (6th Cir.1988) quoting, O’Brien v. DiGrazia, 544 F.2d 543, 546 n. 3 (1st Cir.1976).

The United States asserts that it is immune from suit under the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the Supreme Court held that the estate of a soldier killed in a barracks fire allegedly caused by army negligence could not maintain an action against the United States government. The Court concluded “[t]he government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159. In reviewing the Feres line of cases, the United States Court of Appeals for the Sixth Circuit has discerned a broadening of the Feres Doctrine to include any injury suffered by military personnel that is “even remotely related to the individual’s status as a member of the military, without regard to the location of the event, the [civilian] status ...

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Bluebook (online)
723 F. Supp. 1243, 1989 U.S. Dist. LEXIS 14004, 1989 WL 132186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fathman-v-united-states-navy-ohsd-1989.