United States District Court, D. Hawaii
CLARK BARTHOLOMEW; TANYA BARTHOLOMEW; and ARIC BARTHOLOMEW, a Minor, By His Next Friend CLARK BARTHOLOMEW; Plaintiffs,
BURGER KING CORPORATION; CTI FOODS HOLDING CO., LLC.; UNITED STATES ARMY AND AIR FORCE EXCHANGE SERVICES; DOES 1-150, Defendants
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For Clark Bartholomew, Tanya Bartholomew, AB, A Minor next friend Clark Bartholomew, Plaintiffs: Paul H. Saccoccio, Saccocio & Lopez, Haleiwa, HI; Stephen M. Shaw, Honolulu, HI.
For Burger King Corporation, Defendant, Cross Defendant, Cross Claimant, ThirdParty Plaintiff: Grant K. Kidani, LEAD ATTORNEY, Kidani Law Center, Honolulu, HI.
For CTI Foods Holding Co., LLC, Defendant, Cross Claimant, Cross Defendant: Normand R. Lezy, Leong Kunihiro Lezy & Benton, Honolulu, Hi.
For District of Hawaii Office of the United States Attorney, Attorney General of the United States - Washington, DC, Army & Air Force Exchange Services, ThirdParty Defendants, Cross Claimants: Edric Ming-Kai Ching, Office of the United States Attorney, Honolulu, HI.
For Army & Air Force Exchange Services, Cross Defendant: Edric Ming-Kai Ching, Office of the United States Attorney, Honolulu, HI.
J. Michael Seabright, United States District Judge.
ORDER DENYING DEFENDANT UNITED STATES ARMY AND AIR FORCE EXCHANGE SERVICES' MOTION TO DISMISS, DOC. NO. 207
This tort action arises from an incident in which Plaintiff Clark Bartholomew (" Bartholomew" ) allegedly sustained injuries from eating a Triple Whopper sandwich imbedded with two needle-shaped metal objects. The sandwich was purchased from a Burger King Corporation (" Burger King" ) restaurant franchised to Defendant United States Army and Air Force Exchange Service (" AAFES" or the " government" ). At the time, Bartholomew was an active duty soldier in the United States Army.
On October 12, 2011, Bartholomew, his wife, and his son (collectively, " Plaintiffs" ) filed this action alleging tortious conduct by Defendants Burger King and CTI Foods Holding Company (" CTI" ), the hamburger patty supplier. (AAFES was later added as a Defendant in a First Amended Complaint.) Currently before the court is AAFES' March 10, 2014 Motion to Dismiss, arguing that the court lacks subject matter jurisdiction because Plaintiffs' claims are barred under the " Feres doctrine," which insulates the United States from liability for injuries " incident to military service." Feres v. United States, 340 U.S. 135, 144, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Based on the following, the Court DENIES the Motion to Dismiss.
A. Factual Background