Lawrence v. Dunbar, No. 89-6248

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore CLARK and COX, Circuit Judges, and HILL; PER CURIAM
Citation919 F.2d 1525
PartiesDolcie LAWRENCE, Plaintiff-Appellant, v. Peter DUNBAR, United States of America, Defendants-Appellees. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
Decision Date27 December 1990
Docket NumberNo. 89-6248

Page 1525

919 F.2d 1525
18 Fed.R.Serv.3d 891
Dolcie LAWRENCE, Plaintiff-Appellant,
v.
Peter DUNBAR, United States of America, Defendants-Appellees.
No. 89-6248
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Dec. 27, 1990.

Page 1526

David L. Kout, Miami, Fla., for plaintiff-appellant.

Dexter Lehtinen, U.S. Atty., Barbara K. Bisno, Dawn Bowen, Linda Collins Hertz, Asst. U.S. Atty., Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before CLARK and COX, Circuit Judges, and HILL, Senior Circuit Judge.

PER CURIAM:

This case arises from a collision between two automobiles, one driven by an employee of the United States Government and the other driven by the plaintiff, Dolcie Lawrence. Lawrence appeals the dismissal for lack of subject matter jurisdiction of her suit brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b) and 2671 et seq. We reverse and remand.

FACTS

In December 1987, defendant Peter Dunbar was a Border Patrol Agent with the United States Immigration and Naturalization Service ("INS"), stationed in Miami, Florida. At the time, Dunbar was assigned to "Operation Greenback," an interagency task force which included both the INS and the United States Drug Enforcement Administration ("DEA"). As part of his assignment with Operation Greenback, Dunbar was allowed to use an unmarked government vehicle on a 24-hour basis for commuting to and from work and in connection with his work assignments with the task force.

The INS conducted an internal investigation concerning the event that is the subject of this lawsuit. That investigation included an administrative hearing held in February 1988. From the transcript of that hearing, which is a part of the record on appeal, R-13-Exh.III 1, the following facts may be gleaned. On December 11, 1987, Dunbar's assigned government vehicle was a 1985 Nissan Maxima. According to his Border Patrol Activity and Time Report for that week, Dunbar began work that day at 6:00 a.m. Dunbar testified that on December 11, 1987, he "came on the radio" around 5:00 a.m., on his way to the station. He was scheduled to testify at a bond hearing at 10:00 a.m. The hearing ran late and Dunbar did not return to Operation Greenback headquarters until around 1:30 p.m. Dunbar had planned to go out on surveillance that afternoon, but changed his plans because the bond hearing ran late. Instead, after he returned to Operation Greenback headquarters, he went downstairs to the office Christmas party, where he had something to eat and also consumed alcoholic beverages. Dunbar said that he then went upstairs and wrote up some notes about the court hearing.

Around 3:30 or 4:00 p.m., Dunbar left Operation Greenback headquarters and drove to a Christmas party under way at DEA headquarters. Dunbar remained at the DEA party for several hours, where he consumed more alcoholic beverages. Shortly before 10:00 p.m., Dunbar left the DEA party driving the 1985 Nissan Maxima assigned to him. Around 10:30 p.m., the car he was driving was involved in a car wreck with the plaintiff's automobile. Dunbar was charged with two motor vehicle offenses, one of which was drunken driving.

Dunbar's Border Patrol Activity and Time Report and his Time and Attendance Report were discussed at the INS administrative investigation hearing. Dunbar confirmed that those reports accurately reflect the hours he worked that day. The transcript reveals that Dunbar worked from 6:00 a.m. to 10:45 p.m. on the day of the accident, earning 8 hours regular pay time and 8.75 overtime pay hours for a total of 16.75 hours.

Page 1527

Plaintiff's written claim for damages resulting from this accident was submitted to the INS and denied by letter dated October 27, 1988. Lawrence then sued Dunbar and the INS in February 1989, alleging that Dunbar was acting within the course and scope of his employment with defendant INS when he negligently struck her car with the 1985 Maxima he was operating the night of the accident, seeking damages for personal injuries and property damage. Dunbar answered pro se and stated that he was without knowledge of several allegations of his negligence and the plaintiff's injuries. Dunbar admitted, however, that at all times referred to in the complaint, he was acting within the course and scope of his employment with INS, that the INS owned the 1985 Maxima involved in the wreck, and that he drove the car with the consent and permission of the INS.

The INS filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), contending that the district court lacked subject matter jurisdiction under the FTCA because Dunbar was not acting within the scope of his employment as a government employee at the time of the accident alleged in the complaint. 2 Attached to this motion were three exhibits. First, an affidavit by Marshall M. Metzgar, the Border Patrol's Chief Patrol Agent for the Miami Sector and Dunbar's senior supervising official, expressing the opinion that at the time of Dunbar's vehicle accident on December 11, 1987, he was "not acting in the performance or pursuit of the mission of the United States Border Patrol." R-13-Exh.I. Second, the Miramar, Florida, Police Department report of the accident and Dunbar's arrest. Third, a transcript of the previously mentioned administrative investigation hearing that took place on February 19, 1988.

In granting the INS's motion to dismiss, the district court relied almost exclusively on the Metzgar affidavit. The court quoted from this affidavit, noting that " 'Mr. Dunbar's attendance at the DEA party was not required or necessary to the performance of his duties as a government employee.' " The opinion continued,

In response to Defendant's allegations that DUNBAR was not acting within the scope of his employment, Plaintiff points first to DUNBAR's Answer (DE 10) in which DUNBAR admits the allegation in Paragraph 5 of the Complaint, which states that DUNBAR was "acting within the course and scope of his employment with Defendant, U.S.I.N.S." (DE 1). Plaintiff also relies on DUNBAR's statement (DE 13, Exhibit III, pg. 9), in which DUNBAR states that he was on the time clock with I.N.S. from 2:00 p.m. until 10:45 p.m. Lastly, Plaintiff relies on the accident report (DE 13, Exhibit III), which reveals that the accident occurred at 10:35 p.m.

In order for the court to find that DUNBAR's conduct was within the scope of his employment, Plaintiff must establish all three of the elements articulated by the court in Rabideau [v. State, 391 So.2d 283 (Fla. 1st Dist.Ct.App.1980), aff'd, 409 So.2d 1045 (Fla.1982) ]. Rabideau at 284. Plaintiff must show that: (1) DUNBAR's conduct was the kind he was employed to perform; (2) DUNBAR's conduct occurred substantially within the time and space limits of his employment; and (3) DUNBAR's conduct was activated at least in part by a purpose to serve the master. The most persuasive evidence presented on the first element is the Affidavit of Marshall M. Metzgar (DE 13, Exhibit I). Mr. Metzgar unequivocally stated that, "Mr. Dunbar's attendance at the DEA party was not required or necessary to the performance of his duties as a government employee." Plaintiff has not refuted this statement with any evidence which the court finds convincing. Thus, Plaintiff has not satisfied one of the elements necessary to prove that DUNBAR was

Page 1528

acting within the scope of his employment.

Slip op. at 7-8 (October 2, 1989).

DISCUSSION

Title 28, section 1346(b) of the...

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1337 practice notes
  • Creedle v. Miami-Dade Cnty., Case No. 17-CIV-22477-WILLIAMS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • November 9, 2018
    ...based on the allegations in the complaint, which the district court takes as true when considering the motion. Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990). In contrast, factual attacks challenge the existence of subject matter jurisdiction in fact, and in such cases "no presum......
  • Corbett v. Transp. Sec. Admin., Case No. 12–20863–CV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • November 16, 2012
    ...fail to establish the court's jurisdiction. Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir.2003) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990)). Factual attacks, on the other hand, “challenge the court's jurisdiction in fact, irrespective of the pleadings.” Id. ......
  • Lyttle v. United States, CASE NO. 4:11-CV-152 (CDL)
    • United States
    • U.S. District Court — Middle District of Georgia
    • March 31, 2012
    ...court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction[.]" Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam) (second alteration in original) (internal quotation marks omitted). To survive such a challenge, "[a] com......
  • Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co., Civil Action No. 3:11–0009.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • September 2, 2011
    ...46 F.3d 1000, 1002–03 (10th Cir.1995) (discussing difference between facial and factual attacks under Rule 12(b)(1)); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990) (same). 10. The WVDEP acquiesced to the Circuit Court “stay” orders; it had the option not to. Stay Orders, ECF 23–3 ......
  • Request a trial to view additional results
1337 cases
  • Creedle v. Miami-Dade Cnty., Case No. 17-CIV-22477-WILLIAMS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • November 9, 2018
    ...based on the allegations in the complaint, which the district court takes as true when considering the motion. Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990). In contrast, factual attacks challenge the existence of subject matter jurisdiction in fact, and in such cases "no presum......
  • Corbett v. Transp. Sec. Admin., Case No. 12–20863–CV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • November 16, 2012
    ...fail to establish the court's jurisdiction. Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir.2003) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990)). Factual attacks, on the other hand, “challenge the court's jurisdiction in fact, irrespective of the pleadings.” Id. ......
  • Lyttle v. United States, CASE NO. 4:11-CV-152 (CDL)
    • United States
    • U.S. District Court — Middle District of Georgia
    • March 31, 2012
    ...court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction[.]" Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam) (second alteration in original) (internal quotation marks omitted). To survive such a challenge, "[a] com......
  • Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co., Civil Action No. 3:11–0009.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • September 2, 2011
    ...46 F.3d 1000, 1002–03 (10th Cir.1995) (discussing difference between facial and factual attacks under Rule 12(b)(1)); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990) (same). 10. The WVDEP acquiesced to the Circuit Court “stay” orders; it had the option not to. Stay Orders, ECF 23–3 ......
  • Request a trial to view additional results

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