Mayfield v. United States of America, No. 2:2017cv00202 - Document 9 (E.D. Va. 2017)

Court Description: MEMORANDUM OPINION AND ORDER granting 4 Motion to Dismiss for Lack of Jurisdiction. Ms. Mayfield's Complaint (ECF No. 1-1) is DISMISSED without prejudice. Signed by District Judge Arenda L. Wright Allen and filed on 8/11/17. (tbro)

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Mayfield v. United States of America Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division ROSALYN MAYFIELD, Plaintiff, Civil No. 2:17-cv-202 V. UNITED STATES OF AMERICA, Defendant. MEMORANDUM OPINION AND ORDER This matter is before the Court on Defendant United States of America's Motion to Dismiss for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). See generally Mot, Dismiss (ECF No. 4.) Plaintiff Rosalyn Mayfield's claim arises from a motor vehicle accident that occurred between herself and an employee of the United States Navy, Charles Castorina, on December 3, 2012. See Compl. (ECF No. 1-1.) Because Mr. Castorina was acting within the scope of his federal employment, the Court grants Defendant's Motion to Dismiss without prejudice.' I. BACKGROUND On November 21, 2014, Ms. Mayfield filed a Complaint in the City of Chesapeake Circuit Court, alleging that on December 3, 2012 Mr. Castorina negligently operated a motor vehicle, injuring Ms. Mayfield. Ms. Mayfield never served that Complaint. On December 2, ' Because the facts and legal contentions are adequately presented in the materials before it, oral argument would not materially aid in the decisional process and is waived. See E.D. Va. Civ. R. 7(J). Dockets.Justia.com 2015, the state court issued a notice that there had been no service within a year. Ms. Mayfield accepted an elective non-suit and filed a new Complaint on May 2, 2016. On April 7, 2017, the United States Attorney for the Eastern District of Virginia invoked the Federal Tort Claims Act ("FTCA"), and certified that Mr. Castorina was acting within the scope of his federal employment at the time of the accident. See Certification (ECF No. 1-2); see also 28 U.S.C. § 2679. The United States of America was substituted for Mr, Castorina. See Notice of Substitution (ECF No. 3.) Defendant removed the action to this Court, and filed a Motion to Dismiss asserting that Ms. Mayfield failed to exhaust her administrative remedies. See Notice of Removal; see also Mot. Dismiss; Mem. in Support (ECF No. 5.) Ms. Mayfield responded, challenging the Certification that Mr. Castorina was acting within the scope of his federal employment. See Resp. (ECF No. 7.) IL LEGAL STANDARD Evaluating whether the FTCA confers jurisdiction over an action against the United States may occur in a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). The plaintiff bears the burden of showing subject matter jurisdiction by alleging supportive facts. See id; see also McNutt V. Gen. Motors Acceptance Corp. ofind, 298 U.S. 178, 189 (1936). The court may also consider facts and exhibits outside of the pleadings without converting the motion to dismiss into a motion for summary judgment. See Williams, 50 F.3d at 304. A federal court must have subject matter jurisdiction over a lawsuit; otherwise the court lacks the power to award relief See First Am. Nat'l Bank v. Straight Creek Processing Co., 756 F.Supp. 945, 946 (E.D.Va. 1991). The United States is entitled to sovereign immunity and cannot be sued without its consent. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). Accordingly, the court's jurisdiction over claims against the United States is limited to the terms of the United States' consent to be sued. See id; see also Lehman v. Nakshian, 453 U.S. 156,160 (19.81). The FTCA provides a limited waiver of sovereign immunity for torts committed by agents or employees of the United States acting within the scope of their employment. See Williams^ 50 F.3d at 305. As a waiver of immunity, the FTCA is to be "strictly construed, and all ambiguities [ ] resolved in favor of the sovereign." Robb v. United States, 80 F.3d 884, 887 (4th Cir.1996) (citations omitted). III. ANALYSIS To determine if Ms. Mayfield's claim falls under the FTCA, the Court must evaluate whether Mr. Castorina was acting within the scope of his federal employment at the. time the claim arose. See 28 U.S.C. § 2679(b)(1). Ms. Mayfield admits that she failed to exhaust all administrative remedies, but explains that this failure occurred because she did not realize Mr. Castorina was a federal employee. See Resp. at 2, 8. Additionally, Ms. Mayfield challenges the Government's Certification that Mr. Castorina was acting within the scope of his federal employment at the time of the accident. This would excuse her from the exhaustion requirement. Although Ms. Mayfield acknowledges that the Certification provides prima facie evidence that Mr. Castorina was acting within the scope of his employment at the time of the accident, she requested limited discovery to evaluate this Certification. Defendant's Reply provided documentation that resolved Ms. Mayfield's proffered questions regarding scope of employment. Therefore, limited discovery is unnecessary. See Reply at 7; see also ECF Nos. 8-1, 8-2. In a case presenting similar issues, a federal employee serving aboard a ship undergoing repairs in Massachusetts was on temporary travel orders to drive to Norfolk to deliver items associated with the ship. See Wilkinson v. Gray, 523 F. Supp. 372 (E.D. Va. 1981), aff'd, Wilkinson v. United States, 611 F.2d 998 (4th Cir. 1982). The employee was on a per diem allowance covering mileage, lodging, and meals. He was in an accident on his way to dinner. The district court held that because the employee was on temporary travel orders that included transportation, lodging, and meals, the employee was within the scope of his employment at the time of the accident. See id at 374. Here, Mr. Castorina was on temporary travel orders to Norfolk to assist with repair of a ship. See ECF Nos. 8-1, 8-2. The Navy paid for Mr. Castorina's lodging, and Mr. Castorina was traveling to dinner at the time of the accident. See id. As with the employee in Wilkinson, the Navy provided Mr. Castorina with a rental car and a per diem allowance. Therefore, this Court concludes that Mr. Castorina was acting within the scope of his employment at the time of the accident. Because Mr. Castorina was acting within the scope of his employment, Ms. Mayfield must exhaust all administrative remedies before advancing a FTCA claim. See 28 U.S.C. § 2401(b) (requiring presentation in writing to appropriate federal agency within two years of claim's accrual); Gould v. United States Dept. ofHealth & Human Servs., 905 F.2d 738, 742 (4th Cir. 1990) (The FTCA "specifically requires an initial presentation of a claim to the appropriate federal agency within two years of the accrual of the cause of action and a final denial by that agency as a jurisdictional prerequisite to suit under the Act.") The FTCA is a limited waiver of sovereign immunity, and no immunity is waived "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing." 28 U.S.C. § 2675(a). Federal courts have dismissed complaints "where a plaintiff failed to file a claim with the appropriate federal agency within the two-year limitations period, even in cases where the plaintiffs failure to submit a claim in a timely manner was the result of the plaintiffs ignorance of the defendant's status as a federal employee.''^ See Gould, 905 F.2d at 742 (citing Flickinger V. United States, 523 F. Supp. 1372, 1375 (W.D. Pa. 1981)) (emphasis added). Ms. Mayfield concedes that she did not pursue any administrative remedies. See Resp. at 8. Because "the requirement of filing an administrative claim is jurisdictional and may not be waived," Ms. Mayfield's failure to exhaust her administrative remedies requires dismissal without prejudice for lack of subject matter jurisdiction. See Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000) (internal quotations omitted). The FTCA's exhaustion provision is jurisdictional. See 28 U.S.C. § 2675(a); see also Benally v. United States, No. 13-cv-0604, 2015 WL 10987109, at *3-4 (D. N.M. Oct. 22, 2015) ("'FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies,' and that '[b]ecause petitioner failed to heed that clear statutory command, the District Court properly dismissed his suit' for lack of subject matter jurisdiction.") (quoting McA^e/7 v. United States, 508 U.S. 106, 113 (1993)). IV. CONCLUSION For the reasons set forth above, Defendant's Motion to Dismiss (ECF No. 4) is GRANTED pursuant to Federal Rule of Civil Procedure 12(b)(1). Ms. Mayfield's Complaint (ECF No. 1-1) is DISMISSED without prejudice. IT IS SO ORDERED. Menda L. Wri; . August 2017 Norfolk, Virginia v.llen United Stateg^District Judge

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