Watson v. Geico General Insurance Company et al

Filing 34

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 10/2/2012. (ebs2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

NAOMI JAMES WATSON,
Plaintiff,
v.

Civil Action No. 12-CV-01635-AW

GEICO GENERAL INSURANCE
COMPANY et al.,
Defendants.

MEMORANDUM OPINION
Plaintiff Naomi James Watson brings this action against the following Defendants: (1)
Geico General Insurance Company; (2) Kimberly K. Fite; (3) Ameer Shakeer; (4) Ann Williams;
and (5) Gabriel Merrill. Plaintiff asserts claims for breach of contract and negligence. Pending
before the Court are the following motions: (1) the United States’ Motion to Substitute; (2) the
United States’ Motion to Dismiss; and (3) Plaintiff’s Motion for Summary Judgment Against
Defendant Ameer Shakeer. The Court has reviewed the record and deems a hearing unnecessary.
For the following reasons, the Court DENIES the United States’ Motion to Substitute, DENIES
the United States’ Motion to Dismiss, and STAYS Plaintiff’s Motion for Summary Judgment.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The instant case arises from a multi-car collision on the Southeast-Southwest Freeway in

Washington, D.C. On or around April 21, 2009, Plaintiff Namoi James Watson was a passenger
in a car driven by Carolyn Watson. Plaintiff alleges that she and Watson were travelling behind a
car driven by Defendant Kimberly K. Fite. Plaintiff alleges that Fite told her that an unidentified

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vehicle took Fite’s right of way, thereby causing Fite to collide with Plaintiff. Plaintiff further
alleges that Defendant Amer Shakeer rear-ended her during the same accident, in part due to the
negligence of Defendants Ann Williams and Gabriel Merrill.
On June 1, 2012, the United States, representing Defendant Fite, removed the case. Doc.
No. 1. Defendant Shakeer has appeared and is represented by Mark T. Foley. The record does
not reflect that Plaintiff has served Defendants Williams or Merrill.
On June 1, 2012, the United States filed a Motion to Substitute. Doc. No. 6. The United
States asserts that Fite acted within the scope of her employment during the crash and that the
Court should substitute it as a defendant for Fite. The United States supported this Motion with a
certification from the U.S. Attorney for the District of Maryland that Fite acted within the scope
of her employment during the accident. Doc. No. 6-2.
Plaintiff responded on June 14, 2012. Plaintiff contends that the United States’ Motion is
premature inasmuch as the Parties have yet to conduct discovery.
On June 18, 2012, the United States filed a Motion to Dismiss. Doc. No. 9. The United
States asserts in its Motion to Dismiss that Plaintiff failed to exhaust administrative remedies and
that the Court lacks subject matter jurisdiction over her claim.
Plaintiff responded on June 28, 2012. Plaintiff notes that the United States’ Motion to
Dismiss takes for granted that Fite acted within the scope of her employment when the accident
occurred. Plaintiff argues that this question is not properly before the Court as the Parties have
conducted little discovery.
On July 10, 2012, Plaintiff filed a Motion for Summary Judgment Against Defendant
Shakeer. Doc. No. 28. Plaintiff asserts that it is undisputed that Shakeer rear-ended her and
argues that this fact entitles her to summary judgment.

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Shakeer filed a Motion for Extension of Time to Respond on August 9, 2012, well after
the July 27, 2012 deadline for responding. Doc. No. 29. In his Motion for an Extension of Time,
Shakeer asks for an additional ten days to respond to the Motion for Summary Judgment. The ten
days that Shakeer requested expired on August 19, 2012. Therefore, on October 1, 2012, the
Court issued a Paperless Order denying as moot Plaintiff’s Motion for an Extension of Time.
II.

STANDARD OF REVIEW
“There are two critically different ways in which to present a motion to dismiss for lack

of subject matter jurisdiction,” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982), only one of
which is relevant to the subject-matter jurisdiction attack at issue. “[I]f the governmental entity
challenges jurisdiction under Rule 12(b)(1) . . . the court is free to consider exhibits outside the
pleadings ‘to resolve factual disputes concerning jurisdiction.’” Smith v. Wash. Metro. Area
Transit Auth., 290 F.3d 201, 205 (4th Cir. 2002) (quoting Williams v. United States, 50 F.3d 299,
304 (4th Cir.1995)). In other words, “the trial court is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.” Williams, 50 F.3d at 304 (citation and internal
quotation marks omitted). These authorities are consistent with the Supreme Court’s obiter
dictum that “if subject-matter jurisdiction turns on contested facts, the trial judge may be
authorized to review the evidence and resolve the dispute on her own.” Arbaugh v. Y&H Corp.,
546 U.S. 500, 514 (2006) (citations omitted). “The plaintiff bears the burden of persuasion if
subject matter jurisdiction is challenged under Rule 12(b)(1)” on FTCA grounds. Williams, 50
F.3d at 304 (citation omitted).

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III.

LEGAL ANALYSIS

A.

Motion to Substitute
“As a sovereign, the United States is immune from all suits against it absent an express

waiver of its immunity.” Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing United
States v. Sherwood, 312 U.S. 584, 586 (1941)). “The FTCA effects a limited waiver of the
United States’ sovereign immunity for ‘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.’” Id. at 651 (quoting 28 U.S.C. § 1346(b)(1)). In other words, the
FTCA generally waives the United States’ sovereign immunity with respect to common law torts
that federal employees commit while acting within the scope of employment. See id.; Jamison v.
Wiley, 14 F.3d 222, 226 n.1 (4th Cir. 1994) (citation omitted). Thus, a preliminary inquiry in
many FTCA cases is whether the federal employee acted within the scope of her employment
when she committed the alleged tort. Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009).
This inquiry is jurisdictional. Id.
“When a federal employee is sued, the United States Attorney, acting on behalf of the
Attorney General, must certify whether that employee was in fact acting within the scope of his
or her employment at the time of the alleged tortious act.” Maron v. United States, 126 F.3d 317,
321 (4th Cir. 1997) (citing 28 U.S.C. § 2679(d)(1)). “When the certification is challenged, it
serves as prima facie evidence and shifts the burden to the plaintiff to prove, by a preponderance
of the evidence, that the defendant federal employee was acting outside the scope of his
employment.” Gutierrez de Martinez v. Drug Enforce. Admin., 111 F.3d 1148, 1153 (4th Cir.
1997) (citing cases); see also Maron, 126 F.3d at 322–23 (citing cases). However, the United
States Attorney’s certification “does not carry any evidentiary weight unless it details and explains the
bases for its conclusions.” Maron, 126 F.3d at 323. Furthermore, dismissal under Rule 12(b)(1) is

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generally improper when the scope-of-employment question determines both jurisdiction and the
underlying merits of a FTCA claim. See Kerns, 585 F.3d at 187.

In this case, it is premature to grant the United States’ Motion to Substitute. Although the
U.S. Attorney has certified that Fite acted within the scope of her employment in connection
with the crash, the certification is conclusory. Furthermore, as in Kerns, the scope-ofemployment question is intertwined with both the jurisdictional question and the merits of
Plaintiff’s claim. For Plaintiff to proceed with her suit against Fite, she must show that Fite acted
outside the scope of her employment. Thus, while the scope-of-employment question may not be
a formal element of her negligence claim, it is a prerequisite to the continuance of the suit;
hence, it has the same practical effect.
The Court is aware of its decision in in Khatami v. Compton, 844 F. Supp.2d 654 (D. Md.
2012). In Khatami, the Court granted the United States’ motion to substitute where, as here, the
United States moved to substitute itself as defendant for a U.S. employee/defendant whom the
plaintiff alleged acted outside the scope of her employment during the tortious activity.
Khatami is distinguishable. The Court expressly noted in Khatami that “the United States
. . . included ample evidence with both its Motion to Substitute and Motion to Dismiss.” Id. at
659 n.1. The copiousness of the United States’ evidence facilitated the Court’s task of
determining whether the Plaintiff acted outside the scope of her employment during the
challenged conduct. Here, dissimilarly, the United States’ Motion to Substitute and Motion to
Dismiss are barren of evidence.
Accordingly, the Court will deny without prejudice the United States’ Motion to
Substitute and authorize limited discovery. The United States’ Motion to Dismiss is moot.

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B.

Motion for Summary Judgment
The Court refrains from ruling on Plaintiff’s Motion for Summary Judgment against

Shakeer. Although Shakeer has failed to respond to the Motion, it contains scant legal reasoning
and relies exclusively on Plaintiff’s unanswered interrogatories. The Court deems it advisable to
stay this Motion for fourteen days. If Shakeer fails to respond to the Motion within this period,
the Court will lift the stay and decide it on the merits.
C.

Odds and Ends
The record does not reflect that Plaintiff has served Defendants Williams or Merrill. The

Court orders Plaintiff to show cause why it should not dismiss these Defendants for failure of
service of process.
IV.

CONCLUSION
For the foregoing reasons, the Court DENIES the United States’ Motion to Substitute,

DENIES the United States Motion to Dismiss, and STAYS Plaintiff’s Motion for Summary
Judgment. A separate Order follows.
October 2, 2012
Date

/s/
Alexander Williams, Jr.
United States District Judge

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