Warner et al v. United States et al

Filing 54

MEMORANDUM AND ORDER - Accordingly, the court finds the motion to dismiss defendant Slocum should be granted. Because the United States is already a party, there is no need to substitute it for defendant Slocum. Ordered by Senior Judge Joseph F. Bataillon. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CAROL A. WARNER, RICHARD A.
WARNER,
8:14CV95
Plaintiffs,
vs.

MEMORANDUM AND ORDER

OMNI ELEVATOR COMPANY, Inc. a
Maryland Corporation; MICHAEL G.
SLOCUM, ELETECH, Inc.; and UNITED
STATES,
Defendants.

This matter is before the court on defendant Michael G. Slocum's Motion to
Dismiss, Filing No. 39. This is an action arising under the Federal Tort Claims Act, 28
U.S.C.A. § 2671, et seq. ("FTCA"). Jurisdiction is based on 28 U.S.C. § 1346(b).
In her Second Amended Complaint, the plaintiff alleges negligence by the
defendants in connection with an alleged elevator mishap.

She alleges defendant

Slocum was acting within the course and scope of his employment as an electrician at
the Omaha Veterans' Affairs Medical Center at the time of the incident. She seeks
damages in the amount of $1,370,000 and has filed a claim with the Department of
Veteran Affairs, which was denied on September 24, 2013.
Defendant Slocum moves to dismiss for lack of jurisdiction under Fed. R. Civ. P.
12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). He contends the
FTCA does not authorize suit against individual federal employees acting within the
scope of their employment. In support of the motion, the United States Attorney for the
District of Nebraska has certified that the individual defendant, Michael G. Slocum, was
acting within the scope of his employment as an employee of the United States at the

time of the conduct alleged in the Second Amended Complaint. Filing No. 40, Index of
Evid. , Attachment 1. The plaintiff has not responded to the motion.
Under the Federal Rules, if the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(b)(h)(3). The
burden of proving subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) or 12(h)(3)
falls on the plaintiff. Osborn v. United States, 918 F.2d 724, 729-30 (8th Cir. 1990).
The appropriate standard for review of a Rule 12(b)(1) motion depends on whether the
motion challenges the factual truthfulness or the facial sufficiency of the plaintiff’s
jurisdictional allegations. See, e.g., Stalley v. Catholic Health Initiatives, 509 F.3d 517,
520-21 (8th Cir. 2007).

When a defendant makes a factual attack, the court may

consider matters outside of the pleadings that relate to the existence of subject matter
jurisdiction. See Osborn, 918 F.2d at 729 n.6, 730. In doing so, “the court may receive
competent evidence such as affidavits, deposition testimony, and the like in order to
determine the factual dispute.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). If the
defendant brings a facial attack under Rule 12(b)(1) by arguing that under the facts
alleged in the complaint the court does not have subject matter jurisdiction, then the
court will treat the factual allegations in the complaint as true and will determine whether
those allegations are sufficient to establish subject matter jurisdiction. See Osborn, 918
F.2d at 729, n.6.
The Federal Tort Claims Act (FTCA), confers exclusive jurisdiction upon United
States district courts over civil actions for money damages alleged to have been caused
by the negligent or wrongful act or omission of any employee of the government acting
within the scope of his or her employment, under circumstances where the United
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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). “An action against
the United States is the only remedy for injuries caused by federal employees acting
within the scope of their employment.” Anthony v. Runyon, 76 F.3d 210, 212-13 (8th
Cir. 1996); 28 U.S.C. § 2679(b)(1). A suit against an individual government employee
defendant is deemed to be an action against the United States on certification by the
Attorney General that the defendant employee was acting within the scope of his office
or employment at the time of the incident out of which the claim arose. 28 U.S.C. §
2679(d)(1); see 28 C.F.R. 15.4 (delegating authority for certification to the United States
Attorney for the district in which the action is brought).
Accordingly, the court finds the motion to dismiss defendant Slocum should be
granted. Because the United States is already a party, there is no need to substitute it
for defendant Slocum.
Dated this 10th day of December, 2014
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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