Sheppard v. U.S.

• Decision Date: 30 July 2009
• Docket Number: Civil Action No. 08-1823 (CKK).
• Parties: David SHEPPARD, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

640 F.Supp.2d 29

David SHEPPARD, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civil Action No. 08-1823 (CKK).

United States District Court, District of Columbia.

July 30, 2009.

COPYRIGHT MATERIAL OMITTED

Craig Douglas Miller, Michael J. Johnson, Simeone & Miller, LLP, Washington, DC, for Plaintiff.

Judith A. Kidwell, U.S. Attorney's Office, Steven J. Anderson, Office of Attorney General, Harold D. Martin, II, Robert A. Ades & Assoc., P.C., Washington, DC, for Defendants.

Gregory Sullivan, Great Falls, VA, pro se.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiff David Sheppard brings this one-count negligence action against the United States, the District of Columbia, and Gregory Sullivan, an employee of a Task Force operated by the Metropolitan Police Department ("MPD") and Federal Bureau of Investigation ("FBI"). Sheppard alleges that Sullivan negligently struck his vehicle while Sullivan was acting within the scope of his employment and using a vehicle owned by either the District of Columbia or the FBI. Currently pending before the Court is the United States' Motion to Dismiss, or in the alternative, Motion for Summary Judgment, and the District of Columbia's Motion to Dismiss, or in the alternative, Motion for Summary Judgment.¹

Upon consideration of the parties' motions and related briefing, applicable case law and statutory authority, and the record of the case as a whole, the Court finds, as a matter of law, that (1) Sullivan was not acting within the scope of his employment at the time of the accident, and (2) Sullivan cannot rely on a D.C. permissive use statute to impose liability on Defendants. Accordingly, the Court shall GRANT the United States' Motion to Dismiss, GRANT the District of Columbia's Motion for Summary Judgment, and shall DISMISS the United States and the District of Columbia from further proceedings in this case, for the reasons that follow.

I. BACKGROUND

Sullivan is employed as an officer of the MPD/FBI Task Force, pursuant to which he is federally deputized. Compl. ¶ 17; Def. U.S.' Mot. at 2. On the evening of December 14, 2006, Sullivan allegedly struck Sheppard's vehicle in Washington, D.C., and left the scene of the accident without stopping. Id. ¶ 19. Sullivan was subsequently involved in a second collision approximately one hour later in a different section of Washington, D.C. Id. ¶ 20. He was placed under arrest by police officers after the second collision. Id. ¶ 21. The police administered two chemical breach tests on Sullivan, resulting in blood alcohol level readings of .18, and .19, respectively.

Sullivan pled guilty to driving while intoxicated in the Superior Court of the District of Columbia. See Def. D.C.'s Mot Ex. 2 at 1 (8/7/07 Judgment Order). The MPD launched an Internal Affairs investigation, pursuant to which Sullivan provided a sworn statement. Id., Ex. 3 at 1-4 (9/10/07 Sullivan Interview). Sullivan explained that he had attended an annual Christmas party at the United States Attorney's Office on December 14, 2006. Id. at 3. According to Sullivan, he consumed four glasses of vodka and then proceeded to drive home. Id. Sullivan confirmed that he was off duty when he was driving home:

Q: Ok. One more question in reference to the gathering party at the U.S. Attorney's office, were you on or off duty at the time of the party?

A: I was off duty at the time of the accident.

Q: Were you on duty at the time of your drinking?

A: I'm really not sure . . . I don't know what the tour was in retrospect.

Q: Ok. So, you were off duty when you were driving?

A: Yes.

Id. at 4.

Sheppard's Complaint alleges that Sullivan was operating an automobile owned by either the FBI or the District of Columbia within the scope of Sullivan's employment when the accident occurred. Compl. ¶¶ 16-17. The Complaint also alleges that the FBI and/or the District of Columbia gave Sullivan permission to drive the vehicle on December 14, 2006, in order to carry out duties within the scope of his employment. Id. ¶ 18. Finally, the Complaint alleges that, as a result of Sullivan's negligent actions, Sheppard has suffered bodily injuries, including "shock to his nervous system," and that he has incurred medical expenses and lost wages. Id. ¶ 24.

Sheppard filed this lawsuit on October 24, 2008. The United States and the District of Columbia filed respective Motions to Dismiss, or in the alternative, Motions for Summary Judgment, which are fully briefed and ripe for resolution.

II. LEGAL STANDARDS

The United States filed its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) (seeking dismissal based on a lack of subject matter jurisdiction) whereas the District of Columbia filed its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (seeking dismissal based on a failure to state a claim upon which relief can be granted). Although the Motions raise identical issues for the Court's consideration, the legal standards for review differ. For a motion brought under Rule 12(b)(1), the Court may consider a complaint "supplemented by undisputed facts evidenced in the record or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992)). For a motion brought under Rule 12(b)(6), the Court is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997).

In this case, the District of Columbia attached four exhibits to its Motion: (1) the registration for the vehicle operated by Sullivan at the time of the accident; (2) the Superior Court's Judgment Order regarding Sullivan's conviction; (3) Sullivan's sworn statement in connection with the MPD Internal Affairs investigation, and (4) the MPD traffic crash report. See Def. D.C.'s Mot., Exs. 1-4. The United States submitted one additional exhibit with its Motion—an excerpt from a table of internal offenses and penalties and an excerpt from a manual of administration operations and procedures. See Def. U.S.' Mot., Ex. 3. All of these materials are appropriately considered by the Court for purposes of the United States' Motion to Dismiss brought under Rule 12(b)(1). In contrast, Sullivan's sworn statement is not the type of material outside the scope of the Complaint that is properly considered pursuant to a motion brought under Rule 12(b)(6). Accordingly, the Court shall consider the District of Columbia's Motion as one for Summary Judgment to allow for the inclusion of Sullivan's sworn statement.

With this framework in place, the Court shall set forth the applicable legal standards relating to the United States' Motion to Dismiss pursuant to Rule 12(b)(1) and the District of Columbia's Motion for Summary Judgment pursuant to Rule 56(c).

A. Motion to Dismiss Pursuant to Rule 12(b)(1)

Under Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); see also Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998). A court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). However, "`[a] plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F.Supp.2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350). Finally, "[a]lthough `the District Court may in appropriate cases dispose of a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) on the complaint standing alone,' `where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Coalition for Underground Expansion, 333 F.3d at 198 (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992)); see also Koutny v. Martin, 530 F.Supp.2d 84, 87 (D.D.C.2007) (in resolving a motion to dismiss pursuant to Rule 12(b)(1), a court "may also consider `undisputed facts evidenced in the record'") (internal citations omitted).

B. Motion for Summary Judgment Pursuant to Rule 56(c)

Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Under the summary judgment standard, the moving party bears the "initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party must "go beyond the pleadings and by ...