Doughty v. U.S. Postal Service

• Decision Date: 07 March 2005
• Docket Number: Civ. No. 04-4715 (JBS).
• Citation: 359 F.Supp.2d 361
• Parties: Verna DOUGHTY, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

359 F.Supp.2d 361

Verna DOUGHTY, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.

Civ. No. 04-4715 (JBS).

United States District Court, D. New Jersey.

March 7, 2005.

COPYRIGHT MATERIAL OMITTED

Shirley Johnson-Naylor, Chance & McCann, LLC, Bridgeton, NJ, for Plaintiff.

Andrew Leven, Assistant United States Attorney, U.S. Attorney's Office, Newark, NJ, for Defendant U.S. Postal Service.

Eric J. Riso, Zeller & Bryant, LLP, Cherry Hill, NJ, for Defendant Michael A. O'Neill.

OPINION

SIMANDLE, District Judge.

Plaintiff, Verna Doughty, filed a complaint against Defendant Michael A. O'Neill alleging state law tort claims, and against the United States Postal Service ("USPS" or "Postal Service") under the Federal Tort Claims Act ("FTCA" or "Tort Claims Act").¹ This is the motion to dismiss under Rule 12(b)(1), Fed.R.Civ.P., by the Postal Service, which has been joined, in part, by Defendant O'Neill.²

I. BACKGROUND

Plaintiff, a postal employee at the postal facility in Bellmawr, New Jersey, alleges that on March 26, 2003, at approximately 10:00 a.m., Defendant O'Neill arrived unannounced and uninvited at Plaintiff's residence in New Jersey. (Compl. ¶¶ 1, 7.) Defendant allegedly told Plaintiff that he had come to her home to look at a tree that had fallen in her yard. (Id. ¶ 8.) The two had discussed the fallen tree on a prior occasion while at work. (Id.) While Defendant was in Plaintiff's backyard looking at the tree, Plaintiff retreated to the inside of her home. (Id. ¶ 9.) Defendant then approached the residence and, over Plaintiff's voiced objections, entered her home. (Id.) O'Neill walked through each room on the ground level of the home and proceeded to the bedroom, again allegedly over Plaintiff's voiced objections. (Id. ¶¶ 10, 11.) According to the Complaint, Plaintiff grabbed the door handle to the bedroom in an attempt to prevent O'Neill's entry. (Id. ¶ 11.)

While in the bedroom with Plaintiff, O'Neill allegedly unzipped Plaintiff's pants and then sexually assaulted her despite her repeated objections and attempts to free herself from him. (Id. ¶¶ 13-17.) According to the Complaint, Defendant eventually stopped and fled the residence. (Id. ¶ 17.) In Count 1 of her Complaint, Plaintiff alleges various state law tort claims against O'Neill.

In Count 2 of her Complaint, Plaintiff alleges that the USPS is liable for the injuries caused by the alleged sexual assault. (Compl. ¶¶ 18-22.) On the date of the alleged incident, according to the Complaint, Defendant O'Neill was employed by the Postal Service at the Bellmawr, New Jersey postal facility. (Id. ¶ 6.) The Postal Service alleges that he was employed there as a flat sorter mail processor responsible for processing magazines and legal sized envelopes. (McNeill Decl. ¶¶ 4, 5.) O'Neill's assigned hours at that facility during the month of the alleged attack were from 8:30 p.m. to 5:00 a.m., between which times he was not authorized to leave the facility. (Id. ¶ 6.)

The Postal Service strictly prohibits its employees from assaulting and/or engaging in sexual misconduct against other employees or postal patrons. (Id. ¶ 11.)

II. MOTION TO DISMISS UNDER RULE 12(b)(1)

"Rule 12(b)(1) [of the Federal Rules of Civil Procedure] ... attacks the right of a plaintiff to be heard in Federal Court." Cohen v. Kurtzman, 45 F.Supp.2d 423, 428 (D.N.J.1999). A motion under Rule 12(b)(1) may allege two distinct sorts of jurisdictional defects. Id.; see 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed.2004). The first is a "facial challenge" to the pleader's failure to comply with the pleading obligation set forth in Rule 8(a)(1), Fed.R.Civ.P., meaning that the allegations in the complaint are insufficient to demonstrate federal subject matter jurisdiction as the rule requires. The second type of challenge, and the one presented here, involves an attack on "the existence of subject matter jurisdiction in fact, quite apart from any pleading." Mortensen v. First Federal Savings and Loan Assoc., 549 F.2d 884, 891 (3d Cir.1977). This sort of deficiency may exist despite the formal sufficiency of the Rule 8(a)(1) allegations in the pleading. See 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed.2004).

Where federal jurisdiction is challenged by the defendant under Rule 12(b)(1) and "federal jurisdiction is dependent on certain facts," the court is not limited to the four corners of the complaint. Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Armstrong World Indus. v. Adams, 961 F.2d 405, 410 n. 10 (3d Cir.1992). "In assessing a Rule 12(b)(1) motion, the parties may submit and the court may consider affidavits and other relevant evidence outside of the pleadings." Armstrong World Indus., 961 F.2d at 410 n. 10. Where the moving party attacks jurisdiction with supporting affidavits, "the plaintiff has the burden of responding to the facts so stated." Id. "A conclusory response or a restatement of the allegations of the complaint is not sufficient," id., especially considering that in a Rule 12(b)(1) motion "no presumptive truthfulness attaches to the allegations of [the] plaintiff." Kurtzman, 45 F.Supp.2d at 428 (citing United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 736 n. 2 (3d Cir.1997)).

III. DISCUSSION

A. Federal Tort Claims Act

"The Federal Tort Claims Act waives sovereign immunity against persons suing the federal government for commission of various torts." Simon v. United States, 341 F.3d 193, 200 (3d Cir.2003). "[T]he United States is only liable [under the FTCA] for negligent or wrongful acts of government employees acting within their scope of employment." Matsko v. United States, 372 F.3d 556, 559 (3d Cir.2004); see 28 U.S.C. § 2670(b)(1).

In making a determination of whether the defendant was acting in such a capacity, the court must look not to the plaintiff's claims as pleaded but, rather, to the defendant's conduct giving rise to the claim. Borawski v. Henderson, 265 F.Supp.2d 475, 482 (D.N.J.2003). Whether a defendant was acting within the scope of his employment at the time of the underlying incident must be decided in accordance with the law of the State where the alleged incident took place. Id. at 482.

In New Jersey, conduct is generally considered to be within the scope of employment if:

(1) it is the kind that the servant is employed to perform;

(2) it occurs substantially within the authorized time and space limits of employment;

(3) it is actuated, at least in part, by a desire to serve the master; and

(4) if force is intentionally used by the servant against another, that use of force is not unexpectable by the master.

Id. (citing Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508, 513 (1982)); Restatement (Second) of Agency, § 228 (1958). "Where these criteria are satisfied, even intentional torts and crimes may be considered within the scope of employment." Roth v. First Nat'l Bank of N.J., 169 N.J.Super. 280, 404 A.2d 1182, 1185 (1979).

B. Plaintiff Has Not Satisfied Her Burden of Demonstrating Subject Matter Jurisdiction

Defendant USPS has moved to dismiss the Complaint under Rule 12(b)(1), Fed.R.Civ.P., arguing, in the first instance, that Defendant O'Neill was acting outside the scope of his employment at the time of the alleged incident and, thus, that Plaintiff's claims against the Government can not be sustained under the FTCA. See 28 U.S.C. § 2679(b)(1). Plaintiff argues only that the scope of employment issue should not be taken up by the Court until discovery has concluded. (Pl. Br. at 1-2.) However in her Brief and at oral argument, Plaintiff's counsel was unable to make any proffer as to how, based on the conduct she alleges in her Complaint, Defendant O'Neill might, after further discovery, be found to have been acting within the scope of his employment at the time of the alleged incident. And, as the discussion below makes clear, no reasonable reading of the Complaint and uncontested facts in the Postal Service's declaration can demonstrate that Defendant may have been acting in that capacity. As discussed below, the essential jurisdictional facts are not disputed, and even limited discovery is not warranted.

C. The Conduct Alleged by Plaintiff Was Outside O'Neill's Scope of Employment

1. O'Neill Was Not Employed To Perform the Conduct Alleged Here

The Court has before it the Declaration of Marlon S. McNeill Sr., who, at the time of the alleged incident, was employed by the USPS as the Supervisor of Distribution Operations at the South Jersey Processing & Distribution Center in Bellmawr, New Jersey. (McNeill Decl. ¶ 2.) In that capacity, Mr. McNeill was responsible for supervising Defendant O'Neill. (Id. ¶ 3.) According to Mr. McNeill, Defendant O'Neill was assigned the duties of processing magazines and legal size envelopes. (Id. ¶ 4.) His assigned hours were 8:30 p.m. until 5:00 a.m. (Id. ¶ 6.) Moreover, the Postal Service Policy prohibits its employees from committing acts of sexual misconduct. (Id. ¶ 11.) Clearly, O'Neill was not employed to perform the conduct alleged here.

2. The Alleged Conduct Took Place While O'Neill Was Off-Duty and Off Work Premises

Once again, O'Neill's assigned hours at the time the alleged incident occurred were 8:30 p.m. until 5:00 a.m., during which times he was not authorized to leave the Bellmawr facility. (Id. ¶ 6.) The alleged conduct took place roughly at 10:00 a.m. at Plaintiff's private residence in New Jersey. Obviously, then, the alleged conduct did not take place while O'Neill was on-duty or on work premises.

3. O'Neill's Alleged Conduct Was Not Motivated By A Desire to Serve the Postal Service

Plaintiff offers no explanation as to how the conduct alleged here was motivated by a desire to serve the Postal Service. Similarly, based on the factual allegations made by Plaintiff and the Declaration of Marlon McNeill, the Court is unable to...