Coffey v. United States (870 F. Supp. 2d 1202, 2012)

United States District Court for the District of New Mexico 2012-05-02

Indians

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant United States of America’s Motion and Memorandum to Dismiss Plaintiffs’ Errata Amended and Consolidated Complaint [Doc. No. 118] Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) or, in the Alternative, Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56, filed February 23, 2012 (Doc. 123)(“Mo-tion”). The Court held a hearing on March 2, 2012. The primary issues are: (i) which States’ law applies to the negligence/wrongful death claim and theories Plaintiff Diana Coffey has asserted against Defendant United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, (“FTCA”); (ii) whether Coffey has met her burden to establish a waiver of sovereign immunity under the FTCA to invoke the Court’s subject-matter jurisdiction; and (iii) whether the Court should permit Coffey to assert negligence/wrongful death theories beyond those the Court permitted her to include in her pleadings as stated in the Court’s Memorandum Opinion and Order, filed November 14, 2011, 2011 WL 5826004 (Doc. 110)(“Nov. 14, 2011 MOO”). The Court will deny the Motion. The Court concludes that, applying FTCA conflicts-of-law principles and the applicable States’ law, Arizona and Nevada would apply New Mexico law to Coffey’s negligenee/wrongful death claim and her respective theories. The Court concludes that there is a waiver of immunity under the FTCA against the United States, because New Mexico courts would recognize the appropriateness of liability of private individuals under like circumstances to those in this case. The Court will not permit Coffey to assert any negligenee/wrongful death theories beyond those it permitted her to include in her pleadings as stated in the Court’s Nov. 14, 2011 MOO. Lastly, the Court concludes that genuine issues of material fact preclude the entry of summary judgment.

FACTUAL BACKGROUND

Coffey disputes only one of the United States’ asserted facts. Coffey does not include a section in her Opposition to Motion to Dismiss or in the Alternative Motion for Summary Judgment, see Doc. 127 (“Response”), where she sets forward any numbered or lettered asserted facts. See D.N.M.LR-Civ. 56.1 (“The Response must contain a concise statement of the material facts cited by the movant as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered .... ”). Both Coffey and the United States cite exhibits in the argument sections of filings without setting forth asserted facts that refer to those exhibits. Particularly, by not at least condensing their asserted facts in one section of their briefs, the parties have not provided the Court with a basis for determining whether they intend to put forward any asserted facts in relation to the exhibits they cite in the bodies of their filings. That practice violates D.N.M.LR-Civ. 56.1(b). The Court has already instructed Coffey in a previous Memorandum Opinion and Order to follow this local rule because otherwise the Court might not know which facts she intends to assert. See Memorandum Opinion and Order at 3, filed November 28, 2011, 2011 WL 6013611 (Doc. 113)(“Nov. 28, 2011 MOO”)(“In contravention of D.N.M.LRCiv. 56[.l](b), Coffey has not attempted to distinguish between her facts that controvert McKinley County’s facts and her additional material facts.”); id. at 3 (“The Court notes that Coffey has structured her facts in a way that makes them difficult to navigate and that it has expended a great deal of effort to organize and present these facts.”).

D.N.M.LR-Civ. 56.1(b) is designed to isolate the relevant facts and to present them in an orderly fashion to the Court, and when parties do not follow the procedures listed in this local rule, the Court may have difficulty properly determining what the relevant facts are. Furthermore, it is not the Court’s responsibility to scour the parties’ evidence and filings to determine what facts are in dispute and what facts will defeat a motion for summary judgment. See Gonzales v. City of Albuquerque, 849 F.Supp.2d 1123, 1161-62, No. 09-0520, 2011 WL 1114830, at *24 (D.N.M. Mar. 23, 2011) (“[I]t is not the Court’s responsibility to scour the record for evidence to defeat [a] Motion for Summary Judgment....”); Hauff v. Petterson, 755 F.Supp.2d 1138, 1150 (D.N.M.2010) (Kelly, J.) (“Nor is it the court’s function to ‘scour the record in search of evidence to defeat a motion for summary judgment.’ ” (quoting Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996))). The Court will do its best to present the facts that the parties have set out in their factual sections of their briefs, or what appear to be the factual sections of their briefs, but may not be able to consider what may or may not be asserted facts set out in the argument section of the parties’ filings. The Court can think of no sound basis to distinguish between what might be arguments and what might be asserted facts when parties include those matters in the argument section of their filings but not their factual sections of their filings.

In April 2006, Andrew Crutcher, a Native American, was tried in the Reno Sparks Indian Colony Tribal Court and convicted by a jury of discharging a firearm on the Reno Sparks Indian Colony in Nevada. See Motion ¶ 1, at 4 (setting forth this fact); Errata: Amended and Consolidated Complaint ¶ 11, at 4, filed February 1, 2012 (Doc. 118)(“Errata Complaint”); Response at 6-7 (not. disputing this fact). In May 2006, Crutcher was sentenced to 365 days in jail for the weapons offense by the Reno Sparks Indian Colony Tribal Court and was committed into custody at an available detention facility, the Washoe County Jail, per a procurement contract with the Bureau of Indian Affairs (“BIA”). Motion ¶ 2, at 4 (setting forth this fact); Errata Complaint ¶ 19, at 4; Response at 6-7 (not disputing this fact). On October 7, 2006, BIA employees transported Crutcher and a number of other inmates from the Washoe County Jail. See Motion ¶ 4, at 4 (setting forth this fact); Errata Complaint ¶ 23, at 5-6; Response at 6-7 (not disputing this fact). The BIA does not require by contract that detention facilities medically screen inmates within any particular time-frame or when an inmate is transferred. See Supplement to Opposition to USA’s Motion for Summary Judgment at 2, filed April 10, 2012 (Doc. 136)(“Supple-ment”)(setting forth this fact); Deposition of Patricia Broken Leg Brill at 38:8-39:3, 48:12-49:7, 53:11-22, 55:1-19, 56:11-17 (taken Wednesday March 21, 2012), filed April 10, 2012 (Doc. 136-l)(“Brill Depo.”). BIA officials are not directed to pick up medical records for patients. See Supplement at 2 (setting forth this fact); Brill Depo. at 35:15-36:10. There is no requirement that BIA officials conduct medical screenings before transporting an inmate. See Supplement at 2 (setting forth this fact); Brill Depo. at 54:21-55:19. In Peach Springs, Arizona, Crutcher and some of the other inmates were transferred to the custody of officers from the McKinley County Detention Center (“MCDC”) and taken to Gallup, New Mexico, for incarceration at the MCDC. See Motion ¶ 4, at 4 (setting forth this fact); Errata Complaint ¶23, at 5-6; Response at 6-7 (not disputing this fact). BIA officials decided to transport Crutcher 900 miles from his home and primary doctor to save money on the cost of Crutcher’s incarceration. See Response at 7-8 (setting forth this fact); Deposition of Vincente Anchando at 22:17-23:6, 23:19-25:9 (dated July 1, 2011), filed March 12, 2012 (Doc. 127-2); Reply at 3^1 (not disputing this fact).

Crutcher was incarcerated at the MCDC on October 8, 2006. See Motion ¶ 5, at 5 (setting forth this fact); Nov. 28, 2011 MOO at 4; Response at 6-7 (not disputing this fact). Crutcher seemed healthy at the time he was sent to the MCDC. See Motion ¶ 6, at 5 (setting forth this fact); Second Amended and Consolidated Complaint ¶ 21, at 5, filed July 28, 2011 (Doc. 61). Crutcher was supposed to have the defibrillator attached to his body checked every three to four months and was on heart medication to avoid heart failure. See Response at 7 n. 10 (setting forth this fact); Deposition of Ram Challapalli, M.D. at 13:8-17 (dated April 5, 2011), filed March 7, 2012 (Doc. 127-3); Reply at 3-4 (not disputing this fact). The MCDC was a contract facility for detention pursuant to a contract between the BIA and MCDC. See Motion ¶ 7, at 5 (setting forth this fact); Errata Complaint ¶ 39, at 8; Response at 6-7 (not disputing this fact). After the transfer in Peach Springs on October 7, 2006 to the MCDC officers, BIA employees had no further contact with Crutcher. See Motion ¶ 8, at 5 (setting forth this fact); Response at 6-7 (not disputing this fact). On February 8, 2007, while incarcerated at the MCDC, an officer at this facility observed that Crutcher was ill and that he needed to be taken to the medical unit. See Motion ¶ 9, at 5 (setting forth this fact); Errata Complaint ¶ 42, at 9; Response at 6-7 (not disputing this fact). Crutcher was transported to the Gallup Indian Medical Center, where he died a few hours later. See Motion ¶ 9, at 5 (setting forth this fact); Errata Complaint ¶42, at 9; Response at 6-7 (not disputing this fact). Crutcher died from sepsis resulting from infective endocarditis. See Motion ¶ 10, at 5 (setting forth this fact); Nov. 28, 2011 MOO at 5; Response at 6-7 (not disputing this fact).

PROCEDURAL BACKGROUND

On June 17, 2008, Coffey filed her Civil Complaint for Damages for Wrongful Death and Civil Rights Violations against the United States. See Doc. 1 (“Original Complaint”). On November 14, 2011, the Court filed its Memorandum Opinion and Order granting in part and denying in part Coffey’s motion seeking leave to amend her pleadings. See Nov. 14, 2011 MOO at 1-2. The Court allowed Coffey to amend her pleadings, but did not permit her to assert a medical malpractice claim against the United States. See Nov. 14, 2011 MOO at 2. The Court permitted her to assert the following theories of wrongful death/negligence against the United States: (i) negligent screening; (ii) negligent transfer; and (iii) negligent hand off. See Nov. 14, 2011 MOO at 1-2. On January 23, 2012, Coffey filed her most recent live pleading, her Amended and Consolidated Complaint. See Doc. 116. On February 1, 2012, Coffey filed an errata to her pleadings, but did not specify the reason for the errata. See Doc. 118. The United States filed an answer to this Errata Complaint. See Defendant United States of America’s Answer to Plaintiffs’ Errata-Amended and Consolidated Complaint, Doc. No. 118, filed February 10, 2012 (Doc. 119).

The basic premise of Coffey’s negligent screening theory is that: (i) the Washoe County Jail kept complete medical records for Crutcher; (ii) the BIA had no policy or procedure to take that information from the Washoe County Jail; (iii) there were not adequate procedures in place to screen inmates’ medical conditions to ensure that transferring them would be appropriate; and (iv) the BIA did not transmit any information regarding Crutcher’s medical condition to MCDC officials when it transferred him to the MCDC’s custody. See Errata Complaint ¶¶ 20, 23, at 5-6. The basic premise of Coffey’s negligent transfer theory is that: (i) the BIA transferred Crutcher “nearly 900 miles from his family” where he could not easily reach his family; (ii) the BIA transferred him to a facility, the MCDC, that “did not have adequate examinations or preventative medical care as adopted by other similar jails in the United States”; and (iii) the BIA did not have procedures in place to transfer medical property, such as medications, as part of transferring inmates. Errata Complaint ¶¶ 27-28, 31-33, at 7. Coffey’s negligent-hand-off theory relies on many of the same facts as the other two theories she has asserted, including that “[t]he BIA did not determine that the” MCDC “was adequate to house an inmate with Andrew Crutcher’s medical problems,” specifically his congestive heart failure. Errata Complaint ¶¶33, 35, at 7-8. The Court precluded Coffey from asserting any other theories in its Nov. 14, 2011 MOO, including a medical negligence theory. See Nov. 14, 2011 MOO at 1-2. At the September 30, 2011, hearing, the United States noted that other theories that Coffey has sought to assert that implicate conduct in which the MCDC was involved would be subject to certain defenses under the FTCA, including an independent-contractor defense. See Transcript of Hearing at 17:24-18:12 (taken September 30, 2011)(Mitchell).

On February 23, 2012, the United States filed its Motion seeking dismissal of Coffey’s negligence/wrongful death claim against it. The United States argues that the Court lacks subject-matter jurisdiction to hear Coffey’s FTCA claim against it, because Coffey has not established that a private person under like circumstances would be liable for the alleged misconduct. See Motion at 9. It notes that the relevant inquiry is whether a private person, rather than a state or municipal entity, would be liable under state law. See Motion at 9. It asserts that “[ijnternal policies, procedures, or statutes governing federal action cannot serve to create a substantive cause of action under the FTCA unless the conduct is independently tortious under applicable state law.” Motion at 11. It asserts that there are no BIA regulations that impose a duty to perform medical screenings on inmates prior to transfer. See Motion at 11. Alternatively, the United States argues that Coffey has failed to state a claim upon which relief may be granted and that it is entitled to summary judgment against her. See Motion at 13-16. The United States asserts that “there is no evidence that BIA detention/transfer officers failed to exercise due care with respect to Mr. Crutcher during the time he was in their custody.” Motion at 14. The United States relies on authority from Nevada and Arizona. See Motion at 14. The United States argues that, under both Arizona and Nevada law, Coffey has the obligation to establish the existence of a duty of care. See Motion at 14. It contends that no authority supports Coffey’s proposition that a cause of action may be “based upon the failure of a private person to perform medical screening under like circumstances.” Motion at 14. It asserts that: (i) “Crutcher was in the custody of the BIA detention/transfer officers for a limited period of time — less than a day”; (ii) and “[t]here is no evidence that his medical status was poor at the time of the handoff to the” MCDC officers. Motion at 15. The United States notes that the MCDC “had a medical unit which was staffed with medical care providers who performed medical screenings on incoming inmates.” Motion at 15. The United States represents that the MCDC, “as the receiving facility, performed a medical screening after Mr. Crutcher arrived at the facility.” Motion at 15. The United States also contends that, given the four-month gap in time between when BIA officials transferred Crutcher to the MCDC and Crutcher’s death, there is no legal causation “between any alleged breach by employees of the United States and Mr. Crutcher’s death.” Motion at 16.

On March 7, 2012, Coffey filed her Opposition to Motion to Dismiss or in the Alternative Motion for Summary Judgment. See Doc. 127 (“Response”). Coffey contends that, “[u]nder Nevada law when the BIA transported and released this inmate to McKinley County, the defendant as a public official had the duty to exercise reasonable care to avoid foreseeable harm.” Response at 2. Coffey requests “leave to amend to supply additional facts supporting” her claims should the Court dismiss her claims. Response at 4. Coffey argues that the BIA was the proper party to incarcerate Crutcher. See Response at 8. Coffey notes that, under 25 U.S.C. § 2802, the BIA is “responsible for providing ... law enforcement services in Indian country.” Response at 8 (citing 25 U.S.C. § 2802). Coffey cites to Nevada law for the proposition that “state officials have a duty to exercise ordinary care in performing their duties.” Response at 9 (citing Butler ex rel. Biller v. Bayer, 123 Nev. 450, 168 P.3d 1055 (2007)). She argues that, during the BIA’s transport of Crutch-er, it “failed to have Crutcher’s medical records, his necessary medication and transported him 900 miles from his home and doctor.” Response at 9. Coffey argues that “the restriction invoked by the United States that it must be the negligence of a private person” that is considered under the FTCA “is absurd.” Response at 11.

On March 23, 2012, the United States filed its Reply to Plaintiffs’ Opposition to Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. See Doc. 129 (“Reply”). The United States asserts that Coffey has not raised in her pleadings any argument that the BIA was negligent by not incarcerating Crutcher itself as opposed to having some other facility incarcerate him. See Reply at 4-5. The United States asserts that “[tjhere is absolutely no evidence that it was foreseeable that Mr. Crutcher would become ill and die from sepsis resulting from infective endocarditis four months after he entered the McKinley County Detention Facility.” Reply at 7-8. The United States asserts that there is no evidence that: (i) BIA employees were given any medical records or medication for Crutcher from the Washoe County Jail employees; (ii) that transporting Crutcher from his “home and doctor” was negligent; and (iii) that there was a duty to inform the MCDC about Crutcher’s medical condition. Reply at 8.

At the hearing on April 9, 2012, the United States emphasized that the FTCA requires that courts consider the analogous private liability under state law as opposed to the liability of state actors. See Transcript of Hearing at 3:16-25 (taken April 9, 2012)(Mitchell)(“Apr. 9, 2012 Tr.”). The United States clarified that the allegedly negligent act of picking up and transporting Crutcher without his medical records began in Reno, Nevada. See Apr. 9, 2012 Tr. at 9:3-16 (Mitchell). The United States asserted that the allegedly negligent transfer occurred in Peach Springs. See Apr. 9, 2012 Tr. at 9:17-21 (Mitchell). Coffey argued that it is not appropriate to consider whether private individuals would be liable given that there is no comparable activity as what occurred in this case in the private sector. See Apr. 9, 2012 Tr. at 17:1-22 (Hearne). She contended that the BIA had a responsibility to transport Crutcher in a reasonably safe manner. See Apr. 9, 2012 Tr. at 20:20-21:16 (Hearne). The United States asserted that it is not necessary to get into the issues raised in a case Coffey cited, Hanson v. United States, 712 F.Supp.2d 321 (D.N.J.2010), because BIA detention officers are not police officers, and there is not a sufficient analogy to excessive force cases here. See Apr. 9, 2012 Tr. at 24:21-25:2 (Mitchell). Coffey argued that Nevada law applies to all of the theories upon which she bases her negligence claim, because the decision to transfer Crutcher was made in Nevada. See Apr. 9, 2012 Tr. at 27:19-28:2 (Hearne). The United States asserted that the decision to transfer was made in Arizona. See Apr. 9, 2012 Tr. at 28:7-23 (Mitchell).

On April 10, 2012, Coffey filed her Supplement. See Doc. 136. Coffey refers to a deposition from Patricia Broken Leg Brill that “was held in Washington D.C. at her office on March 21, 2012” and thus “was not available when the Opposition to Motion for Summary Judgment/Motion to Dismiss was filed.” Supplement at 1-2. Coffey argues that “[i]t is a dispute of fact whether transporting [Crutcher] 900 miles away from his medical provider to McKinley County, New Mexico, without making a decision about the effect on his health was negligent because the receiving facility was inadequate and not providing adequate medical care.” Supplement at 2.

LEGAL STANDARD FOR MOTIONS TO DISMISS UNDER RULE 12(b)(1)

“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (citations omitted). A plaintiff generally bears the burden of demonstrating the court’s jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to raise the defense of the court’s “lack of jurisdiction over the subject matter” by motion. Fed. R. Civ. P. 12(b)(1). The United States Court of Appeals for the Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002).

On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint’s allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.

Hill v. Vanderbilt Capital Advisors, LLC, 834 F.Supp.2d 1228, 1241 (D.N.M.2011) (Browning, J.). As the United States Court of Appeals for the Fifth Circuit has stated:

[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction— its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).

When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). In those instances, a court’s reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987)). Where, however, the court determines that jurisdictional issues raised in rule 12(b)(1) motion are intertwined with the case’s merits, the court should resolve the motion under either rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997). “When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.’ ” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003) (quoting Sizova v. Natl Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.2002)).

STANDARD FOR A MOTION TO DISMISS UNDER RULE 12(b)(6)

Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca, 952 F.2d 1183, 1187 (10th Cir.1991).

A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiffs burden to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (stating that a plaintiffs complaint must set forth more than a threadbare recital “of the elements of a cause of action, supported by mere conclusory statements”). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 545, 127 S.Ct. 1955 (citation omitted). To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). The Tenth Circuit has stated:

“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (citations omitted).

LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). The movant bears the initial burden of “show[ing] that there is an absence of evidence to support the non-moving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by .... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

LAW REGARDING SOVEREIGN IMMUNITY AND THE FTCA

“The United States cannot be sued without its consent.” Garcia v. United States, 709 F.Supp.2d 1133, 1137 (D.N.M.2010) (Browning, J.). “Congressional consent — a waiver of the traditional principle of sovereign immunity — is a prerequisite for federal-court jurisdiction.” Garcia v. United States, 709 F.Supp.2d at 1137-38. “The plaintiff bears the burden of proving that Congress has waived sovereign immunity for. all of his claims.” Garcia v. United States, 709 F.Supp.2d at 1138. Accord Bork v. Carroll, 449 Fed.Appx. 719, 721 (10th Cir.2011) (unpublished) (“So it is that a plaintiff seeking to invoke the jurisdiction of the federal courts bears the burden of identifying an applicable statutory waiver of sovereign immunity when challenged to do so.”); Summa v. United States, 936 F.2d 584, 1991 WL 114638, at *3 (10th Cir.1991) (unpublished table decision) (holding in an FTCA case that the “Plaintiffs bore the burden of proving that the district court had subject matter jurisdiction over their claims” (citing Miller v. United States, 710 F.2d 656, 662 (10th Cir.1983))).

1. General Principles of Sovereign Immunity.

It is “axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (citations omitted). Accord FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994): United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). As with any jurisdictional issue, the party bringing suit against the United States bears the burden of proving that sovereign immunity has been waived. See James v. United States, 970 F.2d 750, 753 (10th Cir.1992). A waiver of sovereign immunity cannot be implied and must be unequivocally expressed. See United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, .63 L.Ed.2d 607 (1980); United States v. Murdock Mach. & Eng’g Co. of Utah, 81 F.3d 922, 930 (10th Cir.1996).

2. The FTCA.

The only statutory authority to sue the United States for common-law torts is under the FTCA. The FTCA waives the United States’ sovereign immunity in certain specific tort actions against the United States for money damages. Congress has explicitly provided, however, that the only proper party in an action under the FTCA is the United States. See 28 U.S.C. § 2679(a); Romanach v. United States, 579 F.Supp. 1017, 1018 n. 1 (D.P.R. 1984) (holding that no suit under the FTCA may lie against any agency of the United States eo nomine); Painter v. FBI, 537 F.Supp. 232, 236 (N.D.Ga.1982) (holding that “[t]he FBI may not be sued eo nomine”).

In enacting the FTCA, Congress defined the terms and conditions under which the United States may be sued in tort. 28 U.S.C. § 1346(b) provides, in pertinent part:

[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be held liable to the claimant in accordance with the law of the place where the act or omission occurred.

A companion section of the FTCA provides that the United States is liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. “The law of the place where the alleged negligent conduct took place determines the scope of employment under the FTCA.” Garcia v. United States, No. 08-0295, 2010 WL 2977611, at *18 (D.N.M. June 15, 2010) (Browning, J.)(citing 28 U.S.C. § 1346(b); Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Williams v. United States, 350 U.S. 857, 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Henderson v. United States, 429 F.2d 588, 590 (10th Cir.1970)).

The Tenth Circuit has emphasized that all dismissals for lack of jurisdiction, including those for a failure to establish a waiver of sovereign immunity under the FTCA, should be without prejudice. As the Tenth Circuit has stated: “A longstanding line of cases from this circuit holds that where the district court dismisses an action for lack of jurisdiction ... the dismissal must be without prejudice.” Mecca v. United States, 389 Fed.Appx. 775, 780 (10th Cir.2010) (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir.2006)). The Tenth Circuit held in Mecca v. United States that the district court improperly dismissed with prejudice the plaintiffs FTCA claims after it concluded that it lacked jurisdiction over those claims. See 389 Fed.Appx. at 780-81 (“Here, because the district court found itself without jurisdiction over the FTCA claims, dismissal should have been entered without prejudice, even if the court deemed further amendment futile. We therefore remand with instructions to enter dismissal of these claims without prejudice.”).

3. Scope of Liability Under the FTCA.

The FTCA waives the United States’ sovereign immunity for. certain negligence claims, but it does so only if a private person, performing the same act as the United States, would be liable under the governing state law. See 28 U.S.C. § 2674 (“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.... ”). “[T]hese sections ensure that the United States is placed in the same position as a private individual by rendering the United States liable for the tortious conduct of its employees if such conduct is actionable in the state in which the United States’ action or inaction occurred.” Cortez v. EEOC, 585 F.Supp.2d 1273, 1284 (D.N.M.2007) (Browning, J.). “The FTCA’s waiver of sovereign immunity is limited, however.” Cortez v. EEOC, 585 F.Supp.2d at 1284. “If the claim does not fall within the FTCA’s express provisions, or if it falls within one of its exceptions, the claim is not cognizable under the FTCA, and the court must deny relief.” Cortez v. EEOC, 585 F.Supp.2d at 1284 (citing Williams v. United States, 50 F.3d 299, 304-05 (4th Cir.1995)).

a. Liability Under the Same Circumstances Versus Like Circumstances.

The Supreme Court has rejected a reading of the FTCA that would impose liability on the United States only “to the same extent as would be imposed on a private individual ‘under the same circumstances.’” Indian Towing Co. v. United States, 350 U.S. 61, 65, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (“The Government reads that statute as if it imposed liability to the same extent as would be imposed on a private individual ‘under the same circumstances.’ But the statutory language is ‘under like circumstances[ ]’.... ”). The FTCA did not spur “the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence.” Feres v. United States, 340 U.S. 135, 141, 71 S.Ct. 153, 95 L.Ed. 152 (1950). It is important for a court to consider the liability of the United States under all the circumstances presented in the case as opposed to selectively considering only a few of the circumstances. Feres v. United States, 340 U.S. at 141-42, 71 S.Ct. 153. As the Supreme Court has illustrated:

One obvious shortcoming in these claims is that plaintiffs can point to no liability of a ‘private individual’ even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Nor is there any liability ‘under like circumstances,’ for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. The nearest parallel, even if we were to treat ‘private individual’ as including a state, would be the relationship between the states and their militia. But if we indulge plaintiffs the benefit of this comparison, claimants cite us no state, and we know of none, which has permitted members of its militia to maintain tort actions for injuries suffered in the service, and in at least one state the contrary has been held to be the case. It is true that if we consider relevant only a part of the circumstances and ignore the status of both the wronged and the wrongdoer in these cases we find analogous private liability. In the usual civilian doctor and patient relationship, there is of course a liability for malpractice. And a landlord would undoubtedly be held liable if an injury occurred to a tenant as the result of a negligently maintained heating plant. But the liability assumed by the Government here is that created by ‘all the circumstances,’ not that which a few of the circumstances might create. We find no parallel liability before, and we think no new one has been created by, this Act. Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.

Feres v. United States, 340 U.S. at 141-42, 71 S.Ct. 153 (footnotes omitted).

b. Considering the Liability Under State Law of Private Actors Versus Governmental Actors.

The United States’ liability is coextensive with that of private individuals under the respective States’ law, even if comparable government actors would have additional defenses or additional obligations under that State’s law. See Ewell v. United States, 776 F.2d 246, 248-49 (10th Cir.1985); Proud v. United States, 723 F.2d 705 (9th Cir.1984) (“But appellants overlook the fact that in enacting the FTCA, Congress — not the Hawaii Legislature — determined the tort liability of the United States. And the FTCA specifically provides that the federal government’s tort liability is co-extensive with that of a private individual under state law.”); Cox v. United States, 881 F.2d 893, 895 (10th Cir.1989) (citing Proud v. United States with approval)(“This and other courts have applied the same rationale in holding that the United States may invoke the protection of a [private] recreational use statute.”)- The Tenth Circuit illustrated some of these same principles in Ewell v. United States:

The main goal of the FTCA was to waive sovereign immunity so that the federal government could be sued as if it were a private person for ordinary torts. Congress was primarily concerned with allowing a remedy where none had been allowed. There is no evidence that Congress was concerned with the prospect that immunities created solely for private persons would shield the United States from suit. The Supreme Court, in United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), considered whether it is appropriate to apply immunities created by state law to the United States when it is sued under the FTCA. The Court was concerned with state laws that immunized prison officials from suits by prisoners and concluded that it is “improper to limit suits by federal prisoners because of restrictive state rules of immunity.” 374 U.S. at 164, 83 S.Ct. at 1859. The immunity under consideration in that case applied to state, county and municipal prison officials. Noting its decision in Indian Towing Co. v. United States, 350 U.S. at 65, 76 S.Ct. at 124, wherein the Court determined that federal liability had to be determined as if it were a private person and not as if it were a municipal corporation, it concluded that state law immunity applicable to state, county and municipal prison officials would not be applicable to a private person and, therefore, not applicable to the federal government in a suit under the FTCA.

Thus, while immunities afforded state, county and municipal employees are not applicable to the federal government when sued under the FTCA, immunities created by state law which are available to private persons will immunize the federal government because it is liable only as a private individual under like circumstances. It is evident, therefore, that the Utah district court was correct in granting the motion for summary judgment.

776 F.2d at 249.

In a unanimous decision, the Supreme Court recently reversed “a line of Ninth Circuit precedent permitting courts in certain circumstances to base a waiver” under the FTCA “simply upon a finding that local law would make a ‘state or municipal entitfy]’ liable.” United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005). As the Supreme Court discusses in United States v. Olson, the Ninth Circuit based its decision to find a waiver of liability under the FTCA based on two principles:

In this case, two injured mine workers (and a spouse) have sued the United States claiming that the negligence of federal mine inspectors helped bring about a serious accident at an Arizona mine. The Federal District Court dismissed the lawsuit in part upon the ground that their allegations were insufficient to show that Arizona law would impose liability upon a private person in similar circumstances. The Ninth Circuit, in a brief per curiam opinion, reversed this determination. It reasoned from two premises. First, where “ ‘unique governmental functions’ ” are at issue, the Act waives sovereign immunity if “ ‘a state or municipal entity would be [subject to liability] under the law [¶]... ] where the activity occurred.’ ” Second, federal mine inspections being regulatory in nature are such “ ‘unique governmental functions,’ ” since “there is no private-sector analogue for mine inspections.” The Circuit then held that Arizona law would make “state and municipal entities” liable in the circumstances alleged; hence the FTCA waives the United States’ sovereign immunity.

546 U.S. at 45, 126 S.Ct. 510 (alterations in original) (citations omitted). The Supreme Court “disagree[d] with both of the Ninth Circuit’s legal premises.” United States v. Olson, 546 U.S. at 45, 126 S.Ct. 510. Regarding the first premise, the Supreme Court held:

The first premise is too broad, for it reads into the Act something that is not there. The Act says that it waives sovereign immunity “under circumstances where the United States, if a private person,” not “the United States, if a state or municipal entity,” would be liable. Our cases have consistently adhered to this “private person” standard. In Indian Towing Co. v. United States, this Court rejected the Government’s contention that there was “no liability for negligent performance of ‘uniquely governmental functions.’ ” It held that the Act requires a court to look to the state-law liability of private entities, not to that of public entities, when assessing the Government’s liability under the FTCA “in the performance of activities which private persons do not perform.” In Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), the Court rejected a claim that the scope of FTCA liability for “ ‘uniquely governmental’ ” functions depends on whether state law “imposes liability on municipal or other local governments for the negligence of their agents acting in” similar circumstances. And even though both these cases involved Government efforts to escape liability by pointing to the absence of municipal entity liability, we are unaware of any reason for treating differently a plaintiff’s effort to base liability solely upon the fact that a State would impose liability upon a municipal (or other state governmental) entity. Indeed, we have found nothing in the Act’s context, history, or objectives or in the opinions of this Court suggesting a waiver of sovereign immunity solely upon that basis.

United States v. Olson, 546 U.S. at 45-46, 126 S.Ct. 510 (emphasis in original) (citations omitted). The Supreme Court rejected the Ninth Circuit’s second premise based on the following rationale:

The Ninth Circuit’s second premise rests upon a reading of the Act that is too narrow. The Act makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” As this Court said in Indian Towing, the words “ ‘like circumstances’ ” do not restrict a court’s inquiry to the same circumstances, but require it to look further afield. The Court there considered a claim that the Coast Guard, responsible for operating a lighthouse, had failed “to check” the light’s “battery and sun relay system,” had failed “to make a proper examination”- of outside “connections,” had “fail[ed] to check the light” on a regular basis, and had failed to “repair the light or give warning that the light was not operating.” These allegations, the Court held, were analogous to aliegations of negligence by a private person “who undertakes to warn the public of danger and thereby induces reliance.” It is “hornbook tort law,” the Court added, that such a person “must perform his ‘good Samaritan’ task in a careful manner.”

United States v. Olson, 546 U.S. at 46, 126 S.Ct. 510 (alterations in original).

The Court has not located any Tenth Circuit decisions that have discussed the principles enunciated in United States v. Olson. The United States Court of Appeals for the Third Circuit has since held, relying on United States v. Olson, that: “Under the FTCA, the federal government can only be held liable for breaches of duties imposed on private, rather than state, parties.” DeJesus v. U.S. Dep’t of Veterans Affairs, 479 F.3d 271, 283 n. 9 (3d Cir.2007). The Fifth Circuit has held, also relying on United States v. Olson: “Because the federal government could never be exactly like a private actor, a court’s job in applying the standard is to find the most reasonable analogy. Inherent differences between the government and a private person cannot be allowed to disrupt this analysis.” In re FEMA Trailer Formaldehyde Prod. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 288 (5th Cir. 2012) (citations omitted).

According to one commentator, courts have generally had little difficulty in finding a comparable factual analogy in the private sector for conduct in which the United States engages:

Although, as indicated above, courts have generally had little difficulty in finding sufficiently analogous private conduct, there have been exceptions, primarily in cases involving “quasi-legislative” actions, such as administrative rulemaking, and in cases involving law enforcement officials, who, unlike private citizens, are required to make arrests in appropriate situations.

2 L. Jayson & R. Longstreth, Handling Federal Tort Claims § 9.08[1], at 9-219 (2011). The Tenth Circuit has stated: “It is virtually axiomatic that the FTCA does not apply where the claimed negligence arises out of the failure of the United States to carry out a [federal] statutory duty in the conduct of its own affairs.” United States v. Agronics Inc., 164 F.3d 1343, 1345 (10th Cir.1999). It recognized that “[o]ther courts invoke the same rule by the shorthand expressions of immune ‘quasi-legislative’ or ‘quasi-judicial’ action.” United States v. Agronics Inc., 164 F.3d at 1345.

Thus, for example, courts have rejected FTCA claims premised upon such administrative/regulatory acts or omissions as (1) the FAA’s failure to take enforcement action against an entity not complying with federal laws and rules; (2) the USDA’s failure to prohibit the exportation of disease-exposed cattle; and (3) various agencies’ noncompliance with proper rulemaking procedures.

United States v. Agronics Inc., 164 F.3d at 1346 (citations omitted)(finding no FTCA waiver for “the unauthorized division of regulatory jurisdiction between two administrative agencies”).

4. Conñicts of Law Under the FTCA.

The FTCA addresses conflicts of law in 28 U.S.C. § 1346(b)(1). See 28 U.S.C. § 1346(b)(1). Specifically, this subsection states that courts determine liability under the FTCA “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The Supreme Court has recognized in Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), that this provision operates as follows in FTCA actions involving conduct in multiple States:

In the Tort Claims Act Congress has expressly stated that the Government’s liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred, and we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used. We believe that it would be difficult to conceive of any more precise language Congress could have used to command application of the law of the place where the negligence occurred than the words it did employ in the Tort Claims Act. Thus we first reject the alternative urged by American Airlines. The legislative materials cited to us by American not only lack probative force in a judicial sense, but they are completely unpersuasive to support the argument that Congress intended the words ‘act or omission’ to refer to the place where the negligence had its operative effect. The ease of application inherent in the rule urged by American lends a certain attractiveness, but we are bound to operate within the framework of the words chosen by Congress and not to question the wisdom of the latter in the process of construction. We conclude that Congress has, in the Tort Claims Act, enacted a rule which requires federal courts, in multistate tort actions, to look in the first instance to the law of the place where the acts of negligence took place.

369 U.S. at 9-10, 82 S.Ct. 585 (footnotes omitted). The Tenth Circuit has further explained how this rule in Richards v. United States operates:

It is of course true, as a generality, that a mere act of negligence is not legally tortious and becomes an actionable wrong, a tort, only when harm results to the claimant. Damage is the last event necessary to impose liability and the place of the occurrence of damage may become important when the doctrine of conflicts of laws must be applied. The state in which damage occurs is said to be the ‘place of wrong,’ Restatement, Conflicts of Laws, § 377, and under the first Restatement § 378, it is the law of the place of wrong which governs. A less mechanistic approach has been adopted by the Restatement (Second) § 379 (Tent. Draft No. 9, 1964), and the Supreme Court in Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492, making reference to the latter approach, has expressly held that the ‘place of wrong’ doctrine does not apply to cases arising under the Federal Tort Claims Act. Thus in Richards, it was held that the amount of damages recoverable under the Act was controlled by the whole law of the State of Oklahoma, the place of negligence rather than the place of wrong, which state, in turn, recognized the law of Missouri, the place of damage, as determinative of that element of the tort....

Although an act of negligence, here the misdiagnosis, is not actionable without damage it is apparent that after damage occurs the initial premise of the tort is the act of negligence. The liability of the United States for the completed tort shall be ‘in accordance with the law of the place where the act or omission (negligence) occurred.’ 28 U.S.C. § 1346(b). These statutory words ‘command application of the law of the place where the negligence occurred’ and dispose of any conflict of law question in the first instance. Richards v. United States, supra, 369 U.S. at p. 9, 82 S.Ct. 585. Appellant’s claim is thus dependent upon the law of Taiwan, a foreign country....

Manemann v. United States, 381 F.2d 704, 705 (10th Cir.1967). Once a court has determined the State that governs the law of the place where the act or omission occurred, the Court then applies “the whole law of the place where the negligence occurred,” including that State’s choice-of-law rules:

Recently there has been a tendency on the part of some States to depart from the general conflicts rule in order to take into account the interests of the State having significant contact with the parties to the litigation. We can see no compelling reason to saddle the Act with an interpretation that would prevent the federal courts from implementing this policy in choice-of-law rules where the State in which the negligence occurred has adopted it.

Richards v. United States, 369 U.S. at 10-13, 82 S.Ct. 585 (footnote omitted); id. at 14, 82 S.Ct. 585 (“Certainly there is nothing in the legislative history that even remotely supports the argument that Congress did not intend state conflict rules to apply to multistate tort actions brought against the Government.”). As the Tenth Circuit has stated: “The “whole law’ of the state includes that state’s rules regarding choice of law.” Bodrug v. United States, 832 F.2d 136, 137 (10th Cir.1987), abrogated on other grounds as stated in Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882 (10th Cir.1991).

RELEVANT NEW MEXICO LAW REGARDING NEGLIGENCE

Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based on a standard of reasonable care, and the breach being a cause-in-fact and proximate cause of the plaintiffs damages. See Herrera v. Quality Pontiac, 134 N.M. 43, 47-48, 73 P.3d 181, 185-86 (2003). “In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person.” Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983), overruled on other grounds by Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990). Generally, negligence is a question of fact for the jury. See Schear v. Bd. of County Comm’rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984). “A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant.” Schear v. Bd. of County Comm’rs, 101 N.M. at 672, 687 P.2d at 729. “Whether a duty exists is a question of law for the courts to decide.” Schear v. Bd. of County Comm’rs, 101 N.M. at 672, 687 P.2d at 729 (citation omitted). Once courts recognize that a duty exists, that duty triggers “a legal obligation to conform to a certain standard of conduct to reduce the risk of harm to an individual or class of persons.” Baxter v. Noce, 107 N.M. 48, 51, 752 P.2d 240, 243 (1988).

New Mexico courts have stated that foreseeability of a plaintiff alone does not end the inquiry into whether the defen