Phillips v. Brown
MEMORANDUM OPINION AND ORDER GRANTING 2 MOTION to Substitute Party. Accordingly, the United States is hereby SUBSTITUTED in this action for defendant Stacie Annette Brown. Signed by Judge Virginia Emerson Hopkins on 10/28/2016. (JLC)
2016 Oct-28 AM 09:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
VICTORIA DAWN PHILLIPS,
UNITED STATES OF AMERICA,
) Case No.: 4:16-CV-1450-VEH
MEMORANDUM OPINION AND ORDER
INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Victoria Dawn Phillips (“Ms. Phillips”) commenced this action against
Defendant Stacie Annette Brown (“Ms. Brown”) in the Circuit Court of Dekalb
County, Alabama on May 11, 2016, seeking to recover damages for injuries suffered
as a result of an automobile accident between Ms. Brown, an employee of the United
States Postal Service, and herself. (Doc. 1 at 6, ¶ 2-3). All of Ms. Phillips’s claims
sound in tort.
Ms. Brown removed this case to federal court pursuant to 28 U.S.C. §
1442(a)(1)1 on September 2, 2016. Attached to the Removal Motion are Ms.
28 U.S.C. § 1442(a)(1) sets out in relevant part:
A civil action or criminal prosecution that is commenced in a State court and that
Phillips’s Complaint (doc. 1 at 6-9) and Ms. Brown’s state court Motion To Dismiss,
which was originally filed in the Circuit Court of Dekalb County on July 26, 2016
(doc. 1 at 10-11). Currently pending before the court are Ms. Brown’s state court
Motion To Dismiss (doc. 1 at 10-11); the United States’ Notice of Substitution and
Application for Order Thereon (doc. 2); and the United States’ and Ms. Brown’s (the
“Defendants”) Motion To Dismiss this case for lack of jurisdiction (doc. 3).
On September 9, 2016, the court entered an order which advised the parties
that they must comply with Appendix III of this court’s Uniform Initial Order.
(Doc. 4). That same order also advised Ms. Phillips that any responsive motions
should be filed no later than September 23, 2016. (Id.). To date, Ms. Phillips has not
responded to any of the three currently pending Motions. The time for a response
has now passed, and each of these Motions is now ripe for disposition.
As explained below, Plaintiff’s claims may be asserted only in federal court
and only against the United States. Further, tort claims brought against the United
is against or directed to any of the following may be removed by them to the
district court of the United States for the district and division embracing the place
wherein it is pending:
The United States or any agency thereof or any officer (or any person
acting under that officer) of the United States or of any agency thereof, in
an official or individual capacity, for or relating to any act under color of
such office or on account of any right, title or authority claimed under any
Act of Congress for the apprehension or punishment of criminals or the
collection of the revenue.
States must comply with the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 26712680 (1988). Therefore, the United States is due to be SUBSTITUTED as the named
defendant in this action. As Ms. Phillips has failed to satisfy the FTCA’s
jurisdictional prerequisites, this action is due to be DISMISSED.
As a starting point, a district court may dismiss a complaint without prejudice
for failing to respond to a motion to dismiss. Arundar v. DeKalb County School Dist.,
620 F.2d 493, 495 (5th Cir. 1980). But, in the interest of completeness, the court will
explain why the Motion To Substitute Party (doc. 2) and Motion To Dismiss for Lack
of Jurisdiction (doc. 3) are due to be granted.
The United States Is the Only Party That Can Be Sued for
Plaintiff’s Claims Pursuant to 28 U.S.C. § 2679
In its Notice of Substitution and Application for Order Thereon (doc. 2), the
United States requests that the court substitute the United States for Ms. Brown with
respect to Ms. Phillips’s causes of action. The United States relies upon the FTCA,
which provides “‘redress for ordinary torts recognized by state law’” that are
committed by the United States. Stone v. U.S., 373 F.3d 1129, 1330 (11th Cir. 2004)
(citing Ochran v. U.S., 273 F.3d 1315, 1317 (11th Cir. 2001)). The FTCA was
amended by the Federal Employees Liability Reform and Tort Compensation Act of
1988, §§ 5, 6, Pub. L. No. 100-694, 102 Stat. 4563 (1988), codified as 28 U.S.C. §
2679, to provide that a suit against the United States is the exclusive remedy for
individuals seeking damages resulting from the “negligent or wrongful act of any
employee of the Government while acting within the scope of his office or
employment.” 28 U.S.C. § 2679(b)(1).
Sections 2679(d)(1) and (d)(2) provide that, upon certification that the federal
employee was acting within the scope of his or her office or employment at the time
that the state law claims arose, the action will be deemed to be brought against the
United States, who will be substituted as the sole defendant with respect to those
claims. 28 U.S.C. § 2679(d)(1-2). Further, the action against the United States is
exclusive of any other civil action for money damages by reason of the same subject
matter against that employee. 28 U.S.C. § 2679(b)(1).
United States Attorney Joyce White Vance has certified, pursuant to Section
2679(d)(1), that Ms. Brown was acting within the scope of employment of the U.S.
Postal Service, an agency of the United States, at the time of the incident out of which
Ms. Phillips’s claim arose. (Doc. 2 at Ex. 1, 6-7).2 Therefore, the United States will
Certification authority has been delegated to United States Attorneys. See 28 C.F.R. §
15.3(a) (“The Federal employee’s employing Federal agency shall submit a report to the United
States Attorney for the district embracing the place where the civil action or proceeding is
brought fully addressing whether the employee was acting within the scope of his office or
employment within the federal government at the time of the incident out of which the suit arose
. . . .”).
be substituted for Ms. Brown as the sole defendant.3 This action will hereafter
proceed against the United States as the defendant in lieu of Ms. Brown, and the
caption of the above-styled cause is changed to reflect the United States of America
as the sole named defendant.
Claims Against the United States May Only Be Brought in Federal
Under 28 U.S.C. § 1346(b)(1), federal courts have exclusive jurisdiction over
civil actions against the United States for money damages
for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment,
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.
28 U.S.C. § 1346(b)(1). As above explained, this action proceeds against the United
States as the sole named defendant in lieu of Ms. Brown. Ms. Phillips seeks to
recover in a civil action sounding in tort against the United States for the alleged
negligent or wrongful act committed by Ms. Brown in the scope of her employment
as a U.S. Postal Service employee. Therefore, this action may only be brought in
Ms. Brown’s state court-filed Motion To Dismiss similarly alleges that Ms. Brown was
working within the scope of her employment with the U.S. Postal Service; that all claims against
U.S. Postal Service employees must be filed pursuant to the FTCA; that jurisdiction is not proper
in state court; and that plaintiff has failed to include the United States and/or the postal service as
a necessary and indispensable party. (Doc. 1 at 10, ¶¶ 1-4).
This Court Lacks Jurisdiction Over This Action Because the
Plaintiff Failed To Exhaust her Administrative Remedies Under the
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the
dismissal of an action where the court finds that it does not have subject matter
jurisdiction. It has been noted that
[u]nder a Rule 12(b)(1) motion, a claim may be challenged both facially
and factually. McMaster v. United States, 177 F.3d 936, 940 (11th
Cir.1999). According to the Eleventh Circuit, facial attacks “require the
court merely to look and see if the plaintiff has sufficiently alleged a
basis of subject matter jurisdiction, and the allegations in his complaint
are taken as true.” Id. (punctuation omitted). Factual attacks, however,
“challenge the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings, such as
testimony and affidavits, are considered.” Id. (punctuation omitted). The
Eleventh Circuit has instructed that “[i]n response to a factual attack, a
court should dismiss the complaint for lack of subject matter jurisdiction
where the federal claim is clearly immaterial or insubstantial.” Id.
(punctuation omitted). In factual subject matter jurisdictional attacks,
this Court need not take the allegations in the complaint as true. Odyssey
Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d
1159, 1169 (11th Cir.2011) cert. denied, ––– U.S. ––––, 132 S.Ct. 2379,
182 L.Ed.2d 1051 and cert. denied, 132 S.Ct. 2380 (U.S.2012) and cert.
denied. Rather, the Court may “independently weight the facts and is not
constrained to view them in the light most favorable to the non-movant.”
Bohenkamp v. JT Private Duty Home Care, LLC, 2014 WL 6722505, at *1-2 (M.D.
Fla. Nov. 28, 2014). The instant motion is a factual attack.
The Eleventh Circuit has explained:
“The FTCA is a specific, congressional exception” to the United States'
sovereign immunity for tort claims, under which the government may
“be sued by certain parties under certain circumstances for particular
tortious acts committed by employees of the government.” Suarez v.
United States, 22 F.3d 1064, 1065 (11th Cir.1994) (per curiam).
However, this waiver “must be scrupulously observed, and not
expanded, by the courts.” Id. A federal court does not have “jurisdiction
over a suit under the FTCA unless the claimant first files an
administrative claim with the appropriate agency . . . within two years
from the time the claim accrues . . . accompanied by a claim for money
damages in a sum certain.” Dalrymple v. United States, 460 F.3d 1318,
1324 (11th Cir.2006) (citing 28 U.S.C. §§ 2675, 2401(b); 28 C.F.R. §
14.2(a)). . . . Because “[t]he FTCA bars claimants from bringing suit in
federal court until they have exhausted their administrative remedies,”
the district court lacks subject matter jurisdiction over prematurely filed
suits. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984,
124 L.Ed.2d 21 (1993).
Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008).
The United States premises its Motion upon Ms. Phillips’s failure to provide
administrative notice of her claim as jurisdictionally required under the FTCA. (See,
e.g., Doc. 3 at 2) (“The Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., is
a limited waiver of the general sovereign immunity of the United States. One of the
limitations is that no tort action can be instituted against the United States until an
administrative tort claim has been filed with the appropriate federal agency.”) (citing
28 U.S.C. § 2675(a)). The United States is correct.
Further, the administrative notice requirement of 28 U.S.C. § 2765 “‘is
jurisdictional and cannot be waived.’” Barnett v. Okeechobee Hospital, 283 F.3d
1232, 1237 (11th Cir. 2002) (citing Lykins v. Pointer Inc., 725 F.2d 645, 646 (11th
Cir. 1984)). Section 2675(a) is satisfied if the claimant “(1) gave the appropriate
agency written notice of the tort claim to enable the agency to investigate; and (2)
stated a sum certain as to the value of the claim.” Orlando Helicopter Airways v. U.S.,
75 F.3d 622, 624-25 (11th Cir. 1996) (citing Free v. United States, 885 F.2d 840, 842
(11th Cir.1989)). In Orlando Helicopter, the Eleventh Circuit agreed with the district
court that it lacked subject matter jurisdiction over the FTCA claim because the notice
there “fail[ed] to give the government sufficient information to investigate alleged
misconduct on the part of government officials.” 75 F.3d at 626.
Here, Ms. Phillips has made no allegations that she has provided any notice as
mandated by the FTCA. Additionally, the declaration of Kimberly A. Herbst (“Herbst
Decl.”), a Tort Claims Examiner/Adjudicator with the U.S. Postal Service National
Tort Center, establishes that no claim filed by or on behalf of Ms. Phillips was found
either in the “Postal Service Law Department records of administrative tort claims
submitted for evidence of an administrative claims” or the “Postal Service tort claim
coordinator database records of administrative tort claims received at the local level
for evidence of an administrative claim.” (Doc. 3-1 at 2, ¶ 4-6).4 Therefore, Ms.
Page references to Doc 3-1 correspond with the court’s CM/ECF numbering system.
Williams’s cause of action is due to be dismissed for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1).
Accordingly, the United States is hereby SUBSTITUTED in this action for
Ms. Brown. Ms. Brown’s Motion To Dismiss filed in state court is hereby
TERMED as MOOT. By separate order, the United States’ MOTION TO
DISMISS (doc. 3) is due to be GRANTED, and this case is due to be
DISMISSED WITHOUT PREJUDICE.5
DONE and ORDERED this 28th day of October, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
As noted by the United States in its Motion, this dismissal is “without prejudice to [Ms.
Phillips’s] right to file an administrative claim, provided that [she] meets the timeliness
requirement. 28 U.S.C. § 2679(d)(5).” (Doc. 3 at 3 fn. 2)(parenthetical omitted; emphasis in
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