Russell v. Dupree

• Decision Date: 22 February 2012
• Docket Number: Civil Action No. 10–1497 (ABJ).
• Citation: 844 F.Supp.2d 46
• Parties: Chantel RUSSELL, Plaintiff, v. David K. DUPREE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

844 F.Supp.2d 46

Chantel RUSSELL, Plaintiff,

v.David K. DUPREE, et al., Defendants.

Civil Action No. 10–1497 (ABJ).

United States District Court,

District of Columbia.

Feb. 22, 2012.

Deidra L. McEachern, McEachern & McEachern, Largo, MD, for Plaintiff.

J.B. Dorsey, J.B. Dorsey & Associates, Washington, DC, Carl Ezekiel Ross, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff Chantel Russell brings this action against David Dupree, the Central Intelligence Agency (“CIA”),¹ and State Farm Mutual Automobile Insurance Company in its capacity as plaintiff's uninsured motorist carrier (“State Farm”) for injuries that she allegedly suffered when her vehicle collided with a government vehicle driven by defendant David Dupree, who was driving under the influence of alcohol.² Plaintiff alleges that she sustained injuries in the automobile accident as the result of Dupree's negligence and that the CIA is liable, as Dupree's employer, under the Federal Tort Claims Act, 28 U.S.C. § 1346 (2006) (“FTCA”). Defendant State Farm also brings a cross-claim against defendant CIA requesting indemnification based on the same theory of liability. [Dkt. # 24].

The CIA moved to dismiss plaintiff's and defendant State Farm's claims against it for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) on grounds of sovereign immunity or, in the alternative, for summary judgment. [Dkt. # 13].³ Because the Court finds that the FTCA does not waive the government's sovereign immunity in this case, the Court will grant the CIA's motion to dismiss for lack of subject matter jurisdiction.

BACKGROUND

At all times relevant to this case, David Dupree was employed by the CIA as a chauffeur, working within CIA's Transportation Support Center. Dupree Dep. at 10:21; McMillan Decl. ¶ 4, Compl. ¶ 4. He was an hourly employee and had a standard “tour of duty” from 7:00 a.m. to 3:30 p.m. Dupree Dep. at 59:17–60:10. On September 10, 2008, Dupree left his office at about 6:00 p.m. and began driving home in his government vehicle. Id. at 29:10–30:21; McMillan Decl. at ¶ 6. Oh his way, Dupree stopped at a Chinese Restaurant, where he consumed an unknown quantity of alcohol.⁴ Dupree Dep. at 30:3–11; 32:4–12; Ex. 1 to Def. State Farm's Opp. to Def.'s Mot. to Dismiss (“SF Opp.”) at 1. After leaving the restaurant, Dupree got back into the government vehicle and continued driving home. See Dupree Dep. at 30:3–31:11. But before he reached his destination, he collided with plaintiff's vehicle near Interstate 295 Northbound and Kenilworth Avenue Northeast in Washington, D.C. See Compl. ¶¶ 8, 11–13. After failing the responding police officers' field sobriety tests, Dupree was arrested for driving under the influence. Ex. 3 to Def.'s MTD at 6. Dupree was later convicted of this offense. Id. at 2.

Russell filed the complaint in this case on September 3, 2010. The Court dismissed Count III of the complaint on June 7, 2011. [Dkt. # 21]. The remaining counts allege that Dupree's negligence caused plaintiff's injuries (Count I), that CIA is vicariously liable for Dupree's negligence (Count II), and that State Farm breached its contract with plaintiff by failing to pay her for her injuries.

STANDARD OF REVIEW

Defendant CIA has filed its motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) (“As a court with limited jurisdiction, we begin, and end, with examination of our jurisdiction.”). Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory requirement, ... no action of the parties can confer subject-matter jurisdiction upon a federal court.’ ” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds,482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, a court “may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction in the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000), citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).

ANALYSIS

Under the doctrine of sovereign immunity, the United States is immune to suit unless it explicitly consents to being sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). This immunity extends to the agencies of the federal government, including the CIA. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); see also Transohio Sav. Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 607 (D.C.Cir.1992). A waiver of immunity is strictly construed in favor of the sovereign. Orff v. United States, 545 U.S. 596, 601–02, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005).

“[A] plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss.” Jackson v. Bush, 448 F.Supp.2d 198, 200 (D.D.C.2006), citing Tri–State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C.Cir.2003). Therefore, plaintiff and defendant State Farm bear the burden of establishing that sovereign immunity has been abrogated in order to overcome the CIA's motion to dismiss.

Plaintiff argues that the government has waived its sovereign immunity in this case under the Federal Tort Claims Act, 28 U.S.C. § 1346 (2006) (“FTCA”). See Compl. ¶ 1; Pl.'s Opp. at 3–4. “Section 1346(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and rendered itself liable.” FDIC v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (internal quotation marks omitted). This narrow waiver extends only to claims that are:

(1) against the United States, (2) for money damages, ... (3) for injury or loss of property, or personal injury or death, (4) caused by the negligent or wrongful act or omission of any employee of the Government, (5) while acting within the scope of his office or employment, (6) under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Id., quoting 28 U.S.C. § 1346(b). Thus, plaintiff and State Farm need to show both that the circumstances in this case would have given rise to liability under D.C. law if the employer were a private individual rather than the CIA, and that the injury was caused while Dupree was acting within the scope of his employment. It is the latter showing that the CIA contests.

“[T]he scope of employment of a federal employee ... is governed by state tort law.” Kimbro v. Velten, 30 F.3d 1501, 1506 (D.C.Cir.1994). Because Dupree was employed by the CIA in the District of Columbia and the alleged tort occurred there, the Court will apply District of Columbia law.⁵ “Although the jury generally determines whether an employee's actions are ‘within the scope of employment’ based upon the facts of the case, if there is insufficient evidence to permit a reasonable juror to draw such a conclusion[,] it becomes a question of law for the court.” District of Columbia v. Coron, 515 A.2d 435, 437 (D.C.1986). Several courts in this district have found that driving under the influence of alcohol is not within the scope of employment as a matter of law because no reasonable juror could draw the conclusion that it was. See, e.g., Sheppard v. United States, 640 F.Supp.2d 29 (D.D.C.2009); Smith v. Grimes, 798 F.Supp. 798, 801–02 (D.D.C.1992); Smith v. United States, 762 F.Supp. 1511 (D.D.C.1991) (decided on the same facts as Smith v. Grimes). This Court agrees.

In determining scope of employment, the District of Columbia follows the Second Restatement of Agency, which provides in relevant part that:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits; [and]

(c) it is actuated, at least in part, by a purpose to serve the master[.]

Restatement of Agency § 228; see Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346, 348 (D.C.1987). Thus, “[a]n act is not within the scope of employment if done for the employee's purposes only; unless the tort occurred at least in part as a result of a desire to serve the employer, the employer is not liable.” District of Columbia v. Davis, 386 A.2d 1195, 1203 (D.C.1978).

The third factor of the Restatement test is dispositive here because no reasonable juror could find that Dupree's conduct was actuated in any part by a purpose to serve his employer. Dupree was acting solely for personal benefit when he drove home at night from a restaurant under the influence of alcohol. See Smith v. United States, 762 F.Supp. 1511, 1513 ...