Frankel v. United States

• Decision Date: 07 January 2019
• Docket Number: Civil No. 2:18cv107
• Parties: Joshua E. FRANKEL, Plaintiff, v. UNITED STATES of America, and Javen Evonne Davis, Solely in Her Capacity of an Uninsured Driver Pursuant to Virginia Code § 38.2-2206, as Amended, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

358 F.Supp.3d 537

Joshua E. FRANKEL, Plaintiff,

v.UNITED STATES of America,andJaven Evonne Davis, Solely in Her Capacity of an Uninsured Driver Pursuant to Virginia Code § 38.2-2206, as Amended, Defendants.

Civil No. 2:18cv107

United States District Court, E.D. Virginia, Norfolk Division.

Signed January 7, 2019

Filed January 8, 2019

Michael F. Imprevento, Breit Drescher Imprevento, Virginia Beach, VA, for Plaintiff.

Sean Douglas Jansen, United States Attorney's Office, Norfolk, VA, for Defendants.

OPINION AND ORDER

Mark S. Davis, CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on a motion to dismiss for lack of subject matter jurisdiction, filed by the United States of America ("United States" or "the Government"), and Javen Evonne Davis ("Davis," and collectively with the United States, "Defendants"), pursuant to Federal Rule of Civil Procedure 12(b) (1). ECF No. 6. Plaintiff opposes dismissal, asserting that this action was properly filed in this Court.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual Background

On March 31, 2015, at approximately 7:37 a.m., Plaintiff, an employee of the United States Navy, was injured by a vehicle negligently operated by Davis, who is also an employee of the Navy. Compl. ¶¶ 17-18, ECF No. 1. Plaintiff was struck by Davis' vehicle while he was walking in a crosswalk within Naval Station Norfolk, a military base in Norfolk, Virginia. Id. Plaintiff asserts that he was "on his way to the gym on his own volition" when he was hit, and that he was "not under any orders associated with his employment with the Navy," was not "on an official Navy assignment," and "was not on duty." Id. ¶ 19.

In addition to, and/or in contradiction to, such facts, Defendants support their dismissal motion by providing a sworn affidavit from Suly Diaz, Plaintiff's Navy Supervisor.¹ ECF No. 7-1, ¶ 2. Diaz asserts, under oath, that on the morning of the accident, Plaintiff was required to report to the on-base sports center to participate in mandatory physical training scheduled to begin at 7:30 a.m. Id. ¶ 5. Diaz further indicates that such training was "the beginning of the workday" for Plaintiff. Id. Although Plaintiff's responsive brief denies that he was on his way to mandatory physical training, Plaintiff provides no affidavit or other evidence to support such contrary factual statement made in his brief. ECF No. 11, at 4; see Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) ("An attorney's unsworn statements in a brief are not evidence").

In addition to the disagreement over Plaintiff's reason for going to the on-base gym, the parties' briefs dispute the degree to which Naval Station Norfolk is open to the public. Defendants advance two additional sworn affidavits seeking to demonstrate that: (1) access to the base was restricted to those with an employment, familial, or other connection to the military, ECF No. 7-2; and (2) the gym that Plaintiff was walking to on the day of the accident is located on the base, is operated for the benefit of servicemembers, and may only be patronized by military personnel and other authorized individuals, ECF No. 7-3. Plaintiff does not counter such affidavits with any evidence, but again advances unsworn assertions referencing the vast number of "civilians" that have daily access to the base. ECF No. 11, at 4.

B. Procedural History

Plaintiff unsuccessfully pursued an administrative claim with the Navy for his injuries resulting from the accident, and he thereafter filed the instant action in this Court. Compl. ¶ 15-16. In an apparent effort to recover damages through Plaintiff's "uninsured motorist" auto insurance coverage, Plaintiff's lawsuit names both the United States and Davis as defendants.² ECF No. 1.

Defendants subsequently moved to dismiss this case on jurisdictional grounds, claiming that: (1) the suit cannot proceed against Davis based on this Court's ruling in a prior federal case filed by Plaintiff;³ and (2) that the case cannot proceed against the United States due to the doctrine of sovereign immunity. ECF No. 7. Defendants further argue that an uninsured motorist claim cannot proceed because Va. Code § 38.2-2206(F) requires that a Plaintiff first secure a judgment against the owner or operator of the uninsured vehicle, and here, Plaintiff cannot obtain a judgment against either Defendant. ECF No. 7.

II. STANDARD OF REVIEW

The party asserting subject matter jurisdiction bears the burden of proving that such jurisdiction exists. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). When an individual sues the United States for damages, he or she also bears the burden to demonstrate that the Government unequivocally waived its sovereign immunity. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) ; see Anderson v. United States, 669 F.3d 161, 164 (4th Cir. 2011) ("Where the United States has not waived its sovereign immunity, a plaintiff's claim against the United States should be dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b) (1).").

Subject matter jurisdiction may be challenged facially or factually. Adams, 697 F.2d at 1219. A facial challenge contends that a "complaint simply fails to allege facts upon which subject matter jurisdiction can be based." Id. In ruling on such a challenge, the court assumes that all facts alleged in the complaint are true. Id. In contrast, a factual challenge to subject matter jurisdiction relies on the assertion that "the jurisdictional allegations of the complaint [a]re not true." Id. In ruling on a factual challenge that is not intertwined with the merits of the underlying action, the court is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Williams, 50 F.3d at 304 (quoting Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) ); see U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir. 2009) ("Unless the jurisdictional facts are intertwined with the facts central to the merits of the dispute, the district court may ... resolve the jurisdictional facts in dispute by considering evidence outside the pleadings, such as affidavits."). When evaluating the jurisdictional evidence, the court may consider "evidence by affidavit, depositions or live testimony." Adams, 697 F.2d at 1219 ; see Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016) ("The district court is authorized to resolve factual disputes in evaluating its subject matter jurisdiction.").

III. DISCUSSION

Here, Plaintiff seeks a judgment against the United States as the party substituted for the driver (Davis) that struck him with her car. Compl. ¶ 2. Alternatively, to the extent that the Government is immune from Plaintiff's suit, Plaintiff names Davis as a defendant in an effort to obtain a ruling by this Court that would allow Plaintiff to proceed against GEICO under Plaintiff's own uninsured motorist policy. Compl. ¶¶ 3-4. However, as discussed below, Plaintiff is barred from proceeding against either party.

A. Plaintiff Cannot Proceed Against Davis

First, Plaintiff cannot maintain a claim directly against Davis because another judge of this Court, in dismissing Plaintiff's prior suit arising out of the same incident, held that Davis was acting within the scope of her federal employment at the time of the accident. Case No. 2:16cv674, ECF No. 18; cf. Compl. ¶ 2. Although the dismissal of Plaintiff's earlier action was without prejudice to Plaintiff's right to refile the instant case, Plaintiff may not relitigate the scope of employment question because the doctrine of "issue preclusion" prevents further litigation of this previously decided issue. See Wright & Miller 18 Federal Practice & Procedure Jurisdiction § 4418 (3d ed.) (explaining that when "a first action is decided on grounds that do not preclude a second action" asserting the same claim, the plaintiff retains the ability to file such second action, but "direct estoppel" precludes "reargument of the grounds decided in the first action"); Capitol Envtl. Servs., Inc. v. N. River Ins. Co., 778 F.Supp.2d 623, 633 (E.D. Va. 2011), aff'd, 484 F. App'x 770 (4th Cir. 2012) ("[E]ven a judgment not on the merits will generally have preclusive effect at least as to the same issue for which dismissal was ordered.").

Consequently, here, the United States must be substituted as the proper defendant, and Davis has absolute immunity "not simply from liability, but from suit." Boggs-Wilkerson v. Anderson, No. 2:10cv518, 2011 WL 6934598, at *2 (E.D. Va. Nov. 17, 2011)adopted by 2011 WL 6934596 (E.D. Va. Dec. 30, 2011) (quoting Osborn v. Haley, 549 U.S. 225, 238, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) ); see Maron v. United States, 126 F.3d 317, 321-22 (4th Cir. 1997) ("[E]ven in cases where the United States has not waived its immunity, the United States must still be substituted and the individual defendant still remains immune from suit if the tort occurred within the scope of employment"). Because Davis is immune from suit, an action against her cannot proceed.

B. Plaintiff Cannot Proceed Against the United States

Having determined that the United States is the only proper defendant, the Court next concludes that Plaintiff's suit cannot proceed against the United States based on the doctrine of sovereign immunity. Although the United States has consented to a waiver of its immunity through the Federal Tort Claims Act ("FTCA"), United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 807-08, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), the Supreme Court has expressly held that the FTCA does not waive the Government's immunity "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres v. United States 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

The Fourth Circuit has consistently held that the Feres doctrine is not "restricted to actual military...