Weston v. United States, 1:15CV84

Decision Date17 September 2015
Docket Number1:15CV84
CourtU.S. District Court — Middle District of North Carolina
PartiesDEBORAH WESTON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER

OSTEEN, Jr., District Judge

The United States of America ("Defendant") moves to dismiss Deborah Weston's ("Plaintiff") claim under the Federal Tort Claims Act ("FTCA") pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Doc. 10.) Defendant claims that Plaintiff's suit should be dismissed for failure to exhaust administrative remedies as required under the FTCA. (Id.) Plaintiff has filed a response (Doc. 13), and Defendant has filed a reply (Doc. 14). For the reasons stated below, this court agrees and will dismiss Plaintiff's claim without prejudice.

I. BACKGROUND

This action arises out of a February 14, 2014 automobile accident. (Complaint ("Compl.") (Doc. 3) ¶ 3.) Plaintiff wasdriving her automobile and had right of way when Timothy McQuain, the original named individual Defendant and an employee of the Federal Aviation Administration ("FAA"), pulled out into an intersection without yielding, resulting in a collision between the cars that demolished Plaintiff's car and inflicted serious bodily injury to Plaintiff. (Id. ¶ 3-5.)

On May 15, 2014, McQuain and his supervisor filled out a Standard Form 91, Motor Vehicle Accident Report. (Def.'s Reply Br. in Supp. of Mot. to Dismiss ("Def.'s Reply"), Ex. B (Doc. 14-2).) On May 21, 2014, Plaintiff's counsel sent a letter to an FAA Claims Investigator, in which he stated that an FAA employee caused the accident. (Pl.'s Resp. in Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Resp."), Ex. 1. (Doc. 13-1).) He also stated that, despite not having accounted for all medical bills at that point, Plaintiff demanded $3,000 to resolve her injury and damages. (Id.) On May 27, 2014, the FAA investigator sent two copies of Standard Form 95, Claims for Damage, Injury, or Death ("SF-95"), to be filled out by Plaintiff, with accompanying instructions. (Id., Ex. 2 (Doc. 13-2).) On August 9, 2014, Plaintiff's counsel submitted one SF-95. (Def.'s Br. in Supp. of Mot. to Dismiss ("Def.'s Br."), Ex. A attached to Declaration of Helen Kelley ("Kelley Decl.") (Doc. 11-2).) A second SF-95 wassubmitted on November 12, 2014. (Id., Ex. B. attached to Declaration of Helen Kelley (Doc. 11-3).)

During the following months, contact between Plaintiff's counsel and the FAA investigator ensued. (Id., Ex. C (Doc. 11-4).) After being asked to provide proof for various claims of damage, counsel declined to provide the FAA with documentation, and gave his intention to file suit. (Id. at 2-3.)1

Plaintiff commenced this action on January 5, 2015, in Guilford County Superior Court, alleging negligence. (Compl. (Doc. 3).) On January 21, 2015, McQuain made a sworn declaration that he was within his scope of employment at the time of the accident. (Def.'s Reply, Ex. A, Declaration of Timothy R. McQuain ("McQuain Decl.") (Doc. 14-1).) On January 23, 2015, McQuain filed two notices - one to substitute the United States of America for himself as Defendant, and one to remove the action to this court. (See Notice of Removal of a Civil Action (Doc. 1); Notice of Substitution (Doc. 7).)2

On February 19, 2015, the FAA completed its review of Plaintiff's claims and issued a final denial. (Pl.'s Resp., Ex. 3 (Doc. 13-3).) On February 20, McQuain filed this motion to dismiss, alleging that failure to exhaust administrative remedies has deprived this court of subject matter jurisdiction under the FTCA. (Def.'s Mot. to Dismiss (Doc. 10).)

II. LEGAL STANDARD
When a defendant makes a facial challenge to subject matter jurisdiction, the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration. In that situation, the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (internal citations and quotation marks omitted). Rule 12(b)(6) protects against meritless litigation by requiring sufficient factual allegations "to raise a right to relief above the speculative level" so as to "nudge[] the[] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the plaintiff provides enough factual content to enable the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. The pleading setting forth the claim must be "liberally construed" in the light most favorable to the nonmoving party, and allegations made therein are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, "the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege any facts [that] set forth a claim." Estate of Williams-Moore v. Alliance One Receivable Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C. 2004).

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Generally, federal court jurisdiction stems from either (1) a federal question or (2) diversity of the parties. "Article III of the Constitution gives the federal courts power to hear cases 'arising under' federal statutes." Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 807 (1986). This matter was removed to this court under 28 U.S.C. §§ 1441, 1442, 1446, and 2679, and the United States was substituted as Defendant pursuant to 28U.S.C. § 1346(a)(2). (Notice of Removal (Doc. 1); Motion to Substitute (Doc. 9) at 1-2.)

III. ANALYSIS
A. Removal

In her response to the motions to substitute and to dismiss, Plaintiff raises several objections pertaining to removal. Plaintiff first contends that the matter was improperly removed from state court, and that the state court has both original and concurrent jurisdiction. (Pl.'s Resp. (Doc. 13) at 2.) For reasons set forth below, this action was properly removed and this court has original jurisdiction under 28 U.S.C. § 1346(a)(2).3

Plaintiff also makes the argument that the individual Defendant was not acting within his scope of employment, and that the certification submitted by opposing counsel was insufficient proof. (Pl.'s Resp. (Doc. 13) at 1-2.) Certification by the Attorney General's designee that an employee was acting within the scope of his federal employment is conclusive unless challenged. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995). If challenged, the certificationserves as prima facie evidence and shifts the burden to the plaintiff to prove by a preponderance of the evidence that the federal employee was acting outside of the scope of employment. Gutierrez de Martinez v. DEA, 111 F.3d 1148, 1155 (4th Cir. 1997). In this challenge, a plaintiff must submit specific evidence contradicting the certification, as opposed to conclusory allegations and speculation. Id. Here, Plaintiff's statement that "upon information and belief," Defendant was outside of the scope of his employment is conclusory and, absent evidentiary support, fails to carry her burden of proof. (See Pl.'s Resp. (Doc. 13) at 1.) Further, McQuain gave a statement under penalty of perjury that he was acting with the scope of his employment, (Def.'s Reply, Ex. A, McQuain Decl. (Doc. 14-1), and a completed SF-91 corroborates McQuain's statement. (Id., Ex B (Doc. 14-2).)

Plaintiff next states that any damages do not meet the requisite jurisdictional amount for federal court and also raises lack of diversity jurisdiction. (Pl.'s Resp. (Doc. 13) at 2.) For reasons set forth in Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005), diversity jurisdiction is irrelevant to this action. This action was removed by virtue of the FTCA. (See Notice of Removal (Doc. 1).)

B. Motion to Dismiss

In opposition to Defendant's Motion to Dismiss, Plaintiff raises several arguments. First, Plaintiff states that because the action was filed against an individual and not an agency, the FTCA does not apply. (Pl.'s Resp. (Doc. 13) at 3.) This is contrary to the plain language of 28 U.S.C. § 2679, which states that the United States shall be substituted as the party defendant upon certification by the Attorney General that the defendant employee was acting within the scope of his employment at the time of the incident. See also Rogers v. United States, 675 F.2d 123 (6th Cir. 1982). As stated above, McQuain admitted he was acting within the scope of his employment, (McQuain Decl. (Doc. 14-1) ¶ 6), implicating § 2679 and the Federal Tort Claims Act. Plaintiff has provided no plausible objection to these facts.

Plaintiff next contends that she bargained in good faith to resolve the dispute and that Defendant did not, and therefore an equitable exception to the six-month time period is warranted. (Pl.'s Resp. (Doc. 13) at 3.) The Supreme Court has ruled that it has no authority to create equitable exceptions to jurisdictional requirements. Because the FTCA's exhaustion requirement is jurisdictional in nature, no equitable exceptionis warranted. See Trueman v. United States, No. 7:12-CV-73-F, 2014 WL 1057267, at *10 (E.D.N.C. Mar. 17, 2014); see also Bowles v. Russell, 551 U.S. 205, 206 (2007) ("[T]his Court has no authority to create equitable exceptions to jurisdictional requirements.").

Plaintiff further contends that, because the claim was examined and denied by the FAA, Defendant's motion is moot. (Pl.'s Resp. (Doc. 13) at 3.) This contradicts the holding in McNeil v. United States, 508 U.S. 106 (1993), which rejected a plaintiff's argument...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT