Norwood v. UNITED STATES OF AMERICA et al

Filing 7

REPORT AND RECOMMENDATIONS - Because the waiver of sovereign immunity by the United States for the torts of its employees is exclusively under the Federal Tort Claims Act and Plaintiff has not satisfied the prerequisites for suit under that Act, the case should be dismissed without prejudice for lack of jurisdiction as to Defendants Sterns and Willis and remanded to the Dayton Municipal Court as to Defendant Garnes. Objections to R&R due by 6/8/2015. Signed by Magistrate Judge Michael R. Merz on 5/22/2015. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAWN NORWOOD,
Plaintiff,

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vs

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Case No. 3:15-cv-140

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

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ELIZABETH STEARNS. et al.,

Defendants.

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REPORT AND RECOMMENDATIONS

This case is before the Court on Motion of the United States of America to Dismiss (Doc.
No. 4). Plaintiff was notified of her obligation to respond, but has failed to do so within the time
allowed by law.
Plaintiff brought this case against Defendants Elizabeth Stearns, Dale Willis, and Crystal
Garnes in the Small Claims Division of the Dayton Municipal Court seeking damages in the
amount of $2,999.15. Plaintiff alleges Defendant Garnes “stalked” her by calling her Dayton
doctor and discussing Ms. Norwood’s patient information (Doc. No. 1, PageID 5).
The United States of America removed the case to this Court with the certificate of the
United States Attorney that Defendants Stearns (properly spelled Sterns) and Willis were
employees of the United States acting within the scope of their employment in any interactions

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they have had with the Plaintiff (Notice of Removal, Doc. No. 1). The United States was
thereupon properly substituted as party Defendant for Sterns and Willis (Doc. No. 2).
The United States moves for dismissal on the basis that this Court lacks subject matter
jurisdiction over this case because Plaintiff has not exhausted her available administrative
remedies by filing a claim under the Federal Tort Claims Act. Plaintiff does not dispute this
assertion.
Because the United States is the sovereign, it cannot be sued without its consent.
Hercules, Inc., v. United States, 516 U.S. 417 (1996); Lehman v. Nakshian, 453 U.S. 156 (1981).
A plaintiff must identify a waiver of sovereign immunity in order to proceed. Reetz v. United
States, 224 F.3d 794, 795 (6th Cir. 2000), citing Dalehite v. United States, 346 U.S. 15, 30
(1953). A waiver of sovereign immunity must be unequivocally expressed in statutory text.
FAA v. Cooper, 566 U.S. ___, 2012 U.S. LEXIS 2539 (Mar. 28, 2012), citing, e.g., Lane v. Pena,
518 U.S. 187 (1996). Any ambiguities are to be construed in favor of immunity. United States
v. Williams, 514 U.S. 527 (1995).
Because the waiver of sovereign immunity by the United States for the torts of its
employees is exclusively under the Federal Tort Claims Act and Plaintiff has not satisfied the
prerequisites for suit under that Act, the case should be dismissed without prejudice for lack of
jurisdiction as to Defendants Sterns and Willis and remanded to the Dayton Municipal Court as
to Defendant Garnes.
May 22, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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