Barnett v. United States

• Decision Date: 30 June 2016
• Docket Number: CIVIL NO. JKB-16-406
• Citation: 193 F.Supp.3d 515
• Parties: Stephen F. BARNETT, Plaintiff v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Maryland

193 F.Supp.3d 515

Stephen F. BARNETT, Plaintiff

v.UNITED STATES of America, et al., Defendants.

CIVIL NO. JKB-16-406

United States District Court, D. Maryland.

Signed June 30, 2016

Gregory P. Currey, Offit Kurman, Baltimore, MD, for Plaintiff.

Rebecca Ann Koch, US Attorney's Office, Baltimore, MD, Philip E. Culpepper, Anne Arundel County Office of Law, Annapolis, MD, Jeffrey T. Brown, DeCaro Doran Siciliano Gallagher and DeBlasis LLP, Bowie, MD, Debra L. Wynne, Law Offices of Pamela Randi Johnson, Hunt Valley, MD, for Defendants.

MEMORANDUM

James K. Bredar, United States District Judge

Stephen F. Barnett ("Plaintiff"), a citizen of Maryland, brought a negligence action against the United States of America (the "Government") pursuant to the Federal Tort Claims Act ("FTCA" or the "Act"), 28 U.S.C. §§ 1346(b)(1), 2671 et seq. , seeking compensation for injuries he sustained when he tripped and fell on a public sidewalk in the vicinity of the Baltimore-Washington Science and Industry Center. Plaintiff named as additional Defendants Anne Arundel County, Maryland (the "County"); Brit Limited Partnership d/b/a Beco Management, Inc. ("Beco"); and 857 Elkridge Landing Road Holdings, LLC ("Holdings"). On April 5, 2016, Plaintiff filed an Amended Complaint (ECF No. 23); Beco and Holdings both answered the Amended Complaint (ECF Nos. 27 & 36). Now pending before the Court are (1) the Government's Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 29), filed pursuant to Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure ; and (2) the County's Motion to Dismiss the Amended Complaint or in the Alternative, Motion for Summary Judgment (ECF No. 28), filed pursuant to Rules 12(b)(6) and 56.¹ The issues have been briefed, and no hearing is required, see Local Rule 105.6 (D. Md. 2014). For the reasons explained below, the Government's motion—construed as a motion to dismiss—will be GRANTED, and Plaintiff's FTCA claim will be DISMISSED; the County's motion—likewise construed as a motion to dismiss—will be GRANTED IN PART; and the Court will DISMISS Plaintiff's claims as against the County, Beco, and Holdings, WITHOUT PREJUDICE and with LEAVE TO REFILE in state court.

I. Background²

On April 17, 2013, Plaintiff tripped and fell on what he characterizes as an "uneven public sidewalk" located at the exit of the "H" lot at 845 Elkridge Landing Road, Linthicum, Maryland. (ECF No. 23 ¶ 23.) Plaintiff alleges that the "H" lot is owned by the United States Army Corps of Engineers ("USACE") and leased by the National Security Agency ("NSA"). (Id. ¶¶ 10-11.) He adds that Holdings owns, and Beco manages, the International Tower Building located at 857 Elkridge Landing Road. (Id. ¶¶ 3-4.) The subject sidewalk runs alongside these two addresses.

As a result of his fall, Plaintiff sustained serious injuries, including tooth fractures

, a lip laceration, bruising, and a closed-head injury. (Id. ¶ 24.) Plaintiff contends that there is "clear liability on the part of the entity responsible for routine maintenance and repair of the sidewalks within the Baltimore-Washington Science and Industry Center." (Id. ¶ 8.) As grounds for this "clear liability," Plaintiff cites what he represents to be a provision of the Anne Arundel County Code but what appears instead to be an excerpt from a county webpage titled Sidewalk Repair. (Id. )³ Uncertain which entity is responsible for sidewalk maintenance, Plaintiff sued the Government, the County, Holdings, and Beco, accusing each of "failing to conduct routine maintenance and repair of [the] sidewalk... including[ ] their failure to set up cones, rope, or other barriers around the damaged sidewalk for the purpose of warning pedestrians of the hazard of the uneven pavement." (Id. ¶ 32.)

The Government moved to dismiss on the theory that (1) Plaintiff failed to allege negligence on the part of a federal employee, and consequently the Court lacks subject-matter jurisdiction over his FTCA claim; or, alternatively, (2) Plaintiff failed to allege a cognizable duty on the part of the Government to maintain the subject sidewalk, and accordingly his claim must be dismissed on its merits. The Court agrees that Plaintiff's FTCA claim must be dismissed; it declines to exercise jurisdiction over Plaintiff's remaining state-law claims, and so it does not reach the arguments raised in the County's motion.

II. Standard of Review

Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes dismissal for lack of subject-matter jurisdiction. "A defendant may raise a Rule 12(b)(1) issue in one of two ways." Equal Rights Ctr. v. Abercrombie & Fitch Co. , 767 F.Supp.2d 510, 514 (D.Md.2010). First, the defendant may dispute the jurisdictional allegations in the complaint, in which case the district court may " ‘go beyond the allegations of the complaint’ and hold an evidentiary hearing to ‘determine if there are facts to support the jurisdictional allegations.’ " 24th Senatorial Dist. Republican Comm. v. Alcorn , 820 F.3d 624, 629 (4th Cir.2016) (quoting Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir.1982) ). Second, the defendant may contend that the complaint fails to allege facts upon which subject-matter jurisdiction can be based. Id. In this second scenario, the court must grant the plaintiff the same protection to which he would be entitled under Rule 12(b)(6) —that is to say, the court takes all well-pleaded factual allegations as true. Kerns v. United States , 585 F.3d 187, 193 (4th Cir.2009). Even so, the court is "not obligated to assume that [the] plaintiff's legal conclusions or arguments are also true." Falwell v. City of Lynchburg , 198 F.Supp.2d 765, 772 (W.D.Va.2002) ; accord Stephenson v. Panera Bread, LLC , Civ. No. PJM 14–700, 2014 WL 2436133, at *2 (D.Md. May 29, 2014) ; Du Daobin v. Cisco Sys., Inc. , 2 F.Supp.3d 717, 721 (D.Md.2014) ; Doe v. Sebelius , 676 F.Supp.2d 423, 428 (D.Md.2009), aff'd sub nom. Doe v. Obama , 631 F.3d 157 (4th Cir.2011).

While Rule 12(b)(1) is directed toward threshold jurisdictional defects, Rule 12(b)(6) is implicated when the plaintiff fails to state a plausible claim for relief. In analyzing a Rule 12(b)(6) motion, the court must view all well-pleaded allegations in the light most favorable to the plaintiff. Ibarra v. United States , 120 F.3d 472, 474 (4th Cir.1997). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable[.]" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Even so, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955. "A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration in original) (quoting Twombly , 550 U.S. at 555, 557, 127 S.Ct. 1955 ).

III. Analysis

A. The Government's Motion to Dismiss (ECF No. 29)

In his Amended Complaint, Plaintiff accuses the Government of negligent sidewalk maintenance. "Absent a statutory waiver, sovereign immunity shields the United States from a civil tort suit." Kerns , 585 F.3d at 193–94. The FTCA represents just such a statutory waiver: however, by its terms, it applies to a narrow class of claims. Specifically, the Act confers jurisdiction on district courts over "civil actions...against the United States, for money damages...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," but only to the extent that a nongovernmental party would be liable for such an act/omission under the law of the state where the act/omission occurred. 28 U.S.C. § 1346(b)(1). The FTCA, like any other waiver of sovereign immunity, must be "strictly construed...in favor of the sovereign." Welch v. United States , 409 F.3d 646, 650 (4th Cir.2005) (quoting Lane v. Pena , 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) ); accord Williams v. United States , 50 F.3d 299, 305 (4th Cir.1995) ("Being a waiver of sovereign immunity, the FTCA is strictly construed, and all ambiguities are resolved in favor of the United States."). The FTCA "applies only to the acts of federal employees," Berkman v. United States , 957 F.2d 108, 111 (4th Cir.1992), and it only "serves to convey jurisdiction when [an] alleged breach of duty is tortious under state law, or when the Government has breached a duty under federal law that is analogous to a duty of care recognized by state law," Medina v. United States , 259 F.3d 220, 223 (4th Cir.2001) (quoting Goldstar (Panama) S.A. v. United States , 967 F.2d 965, 969 (4th Cir.1992) ).

In its brief in support of its Motion to Dismiss, the Government observes that Plaintiff's Amended Complaint "alleges Plaintiff tripped and fell on a public sidewalk, but lacks any factual allegations concerning the negligence of ‘any employee of the Government while acting within the scope of his office or employment’ that proximately caused Plaintiff's fall." (ECF No. 29–1 at 6 (quoting 28 U.S.C. § 1346(b)(1) ).) The Court agrees. Apart from his conclusory assertions about the Government's liability, Plaintiff's only real factual allegation concerning the Government is that it owns the "H" lot, upon which lot his accident did not occur. Plaintiff does not identify any particular Government agents or employees who shirked some responsibility or took some action contributing to his accident. Further, to the extent that Plaintiff relies on the County's Sidewalk Repair webpage to bolster his claim that the USACE and/or NSA (along with other abutting property owners) was responsible for sidewalk maintenance, that notion is undercut by...