Prout v. Horniak

Full title: DEBORAH PROUT v. MINDY HORNIAK, et al

Court: United States District Court, D. Maryland

Date published: Mar 4, 2005

Civil Action No. DKC 2004-1318 (D. Md. Mar. 4, 2005)

Opinion

Civil Action No. DKC 2004-1318.

March 4, 2005

MEMORANDUM OPINION

DEBORAH CHASANOW, District Judge

Presently pending and ready for resolution in this negligence action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), et seq., are (1) a motion by Defendant United States of America ("the government") to dismiss, or, in the alternative, for summary judgment and (2) a motion by Plaintiff Deborah Prout to stay the proceedings. The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the government's motion will be granted and Plaintiff's motion will be denied.

I. Background

This case arises out of an automobile accident occurring on Andrews Air Force Base in Prince George's County, Maryland. Plaintiff alleges that on or about May 1, 2002, she was crossing a street on foot when she was struck by a privately owned vehicle driven by Mindy Horniak, now Mindy Hopkins ("Hopkins"), an active-duty member of the United States Air Force.

On April 26, 2004, Plaintiff brought a negligence suit in this court against both Hopkins and the United States of America, alleging that the government was vicariously liable under the FTCA for the negligence of Hopkins under the theory of respondeat superior. Although the government was timely served with process, as of the date of this Memorandum Opinion, Hopkins has yet to be served.¹ On July 23, 2004, the government filed a motion to dismiss, or, in the alternative, for summary judgment, arguing that Hopkins was acting outside the scope of her employment at the time of the accident, and, accordingly, that the court lacks subject matter jurisdiction to entertain Plaintiff's suit. Plaintiff opposes dismissal on the grounds that "a significant question remains" as to whether or not Hopkins was acting within the scope of her employment at the time of the accident. See Paper 11 at 4. On September 29, 2004, Plaintiff filed a motion to stay the proceedings until Hopkins can be served with process and discovery can be taken with respect to her activities on the day of the accident. The government opposes a stay. For the reasons that follow, Plaintiff's motion to stay will be denied and the government's motion to dismiss for lack of subject matter jurisdiction will be granted.

1 Plaintiff maintains that she has been unable to obtain service upon Hopkins because she is currently on active duty and stationed outside of the country. See Paper 11 at 4.

II. Standard of Review

Motions to dismiss for lack of subject matter jurisdiction are governed by Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4^th Cir. 1999). In a 12(b)(1) motion, the court "may consider evidence outside the pleadings" to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg Potomac R.R. Co. v. U.S., 945 F.2d 765, 768 (4^th Cir. 1991); see also Evans, 166 F.3d at 647. The court should grant the 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, 945 F.2d at 768.

"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 (4^th Cir. 1982).

First, a defendant may claim that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based. In that case, all the facts alleged in the complaint are assumed to be true and the plaintiff is essentially given the same procedural protection as he would have under a Rule 12(b)(6) motion for failure to state a claim on which relief may be granted. Second, a defendant may claim that the jurisdictional allegations of the complaint are sufficient, but are not true. In that event, the court may go beyond the allegations of the complaint and consider evidence by affidavit, depositions, or live testimony without converting the proceeding to one for summary judgment. The court must then weigh all the evidence to determine if there is jurisdiction.

Schalk v. Associated Anesthesiology Practice, 316 F.Supp.2d 244, 247 (D.Md. 2004) (internal citations omitted). As mentioned above, the burden of proving subject matter jurisdiction on a motion to dismiss is on the party asserting jurisdiction. Evans, 166 F.3d at 647; Adams, 697 F.2d at 1219.

III. Analysis

A. The Government's Motion to Dismiss

The government contends that Hopkins was acting outside the scope of her employment at the time of the accident, and, thus, it has no FTCA liability under applicable Maryland law. The FTCA is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.² See United States v. Orleans, 425 U.S. 807, 813 (1976). However, the FTCA does not create new causes of action. See Florida Auto Auction of Orlando, Inc. v. United States, 74 F.3d 498, 502 (4^th Cir. 1996). "Instead, the [FTCA] `only serves to convey jurisdiction when the alleged breach of duty is tortious under state law.'" Id. (emphasis in original) (quoting Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 969 (4^th Cir. 1992)). Moreover, "Congress has expressly stated that the Government's liability is to be determined by the application of . . . the law of the place where the act or omission occurred." Richards v. United States, 369 U.S. 1, 9 (1962); see also Cooner v. United States, 276 F.2d 220, 223 (4^th Cir. 1960) (The FTCA "requires the federal courts . . . to apply the law of agency of the place of the accident to determine whether a Government employee is acting in the scope of his employment."). Accordingly, because the accident occurred in Maryland, the court must look to the substantive law of Maryland in order to determine if the government is liable to Plaintiff for Hopkins' alleged negligence under the theory of respondeat superior. See Buckingham v. United States, 124 F.Supp.2d 943, 944 (D.Md. 2000) (stating that in an automobile accident occurring in Maryland and involving an employee of the United States Postal Service, "the Government is only liable to the extent that Maryland law would impose liability under the theory of respondeat superior").

2 The FTCA provides, in pertinent part, that the United States can be subject to claims:

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).

Under Maryland law, the doctrine of respondeat superior allows an employer to be held vicariously liable for the tortious conduct of its employee when that employee was acting within the scope of the employment relationship. See Oaks v. Connors, 660 A.2d 423, 426 (Md. 1995); see also, e.g., Dhanraj v. Potomac Elec. Power Co., 506 A.2d 224 (Md. 1986); Embrey v. Holley, 442 A.2d 966 (Md. 1982). "The general test set forth in numerous Maryland cases for determining if an employee's tortious acts were within the scope of his employment is whether they were in furtherance of the employer's business and were `authorized' by the employer." Sawyer v. Humphries, 587 A.2d 467, 470 (Md. 1991).

However, the Court of Appeals has recognized that the general rule for determining scope of employment issues "has been to some extent narrowed with respect to automobiles." Dhanraj, 506 A.2d at 226. In Dhanraj, the court stated:

[O]n account of the extensive use of the motor vehicle with its accompanying dangers, the courts have realized that a strict application of the doctrine of respondeat superior in the modern commercial world would result in great injustice. It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant's automobile, even though engaged at the time in furthering the master's business unless the master expressly or impliedly consents to the use of the automobile, and . . . had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master's business that his control over it might reasonably be inferred.

Id. (internal quotations and citations omitted) (quoting Henkelmann v. Metro. Life Ins. Co., 26 A.2d 418 (Md. 1942)); see also Oaks, 660 A.2d at 426. Thus, "[t]he doctrine may only be successfully invoked when an employer has either `expressly or impliedly, authorized the [servant] to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident.'" Oaks, 660 A.2d at 427 (quoting Dhanraj, 506 A.2d at 226). Moreover, "[d]riving to and from work is generally not considered to be within the scope of a servant's employment because getting to work is the employee's own responsibility and ordinarily does not involve advancing the employer's interests." Id. Accordingly, "absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work." Dhanraj, 506 A.2d at 226.

The government argues that the undisputed facts demonstrate that Hopkins was not performing any of her designated job responsibilities at the time of the accident. At that time, Hopkins was assigned to the Customer Service, Special Actions section of the 89^th Comptroller Squadron, located at Andrews Air Force Base. Her supervisor, Noncommissioned Officer In Charge Calvin L. Mickens, attests that Hopkins' job responsibilities as a Financial Services, Customer Service technician included conducting separation and retirement briefings, computing and processing final military payment, and answering general military and travel pay inquiries. See Paper 10, Ex. 1 ("Mickens Aff.") ¶ 3. None of Hopkins' job responsibilities would require the use an automobile, and it is clear that she was performing none of these tasks at the time of the accident. Moreover, Hopkins' normal workday hours at Andrews were 7:30 a.m. to 4:30 p.m. Mickens Aff. ¶ 3. Thus, according to Plaintiff's own allegations, the accident occurred before Hopkins was even scheduled to begin work. See Paper 1 ("Complaint") ¶ 4 (alleging that the accident occurred at approximately 7:19 a.m.). Finally, it is undisputed that Hopkins was driving her privately owned vehicle at the time the accident occurred. See Complaint ¶ 2; Mickens Aff. ¶ 3.

Based on the undisputed facts, Plaintiff has not and cannot support her allegation that Hopkins was acting within the scope of her employment as a Financial and Customer Service technician at the time the accident occurred. See Oaks, 660 A.2d at 427 (holding that the employee was not acting within the scope of his employment where he was merely "driving to work," "he was not actually performing any of his designated job responsibilities at the time of the accident," and "the accident occurred before the time that [the employee] was scheduled to start work"). In light of the government's supporting affidavit, it is clear that it neither "expressly or impliedly consent[ed] to the use of the automobile," nor "had the right to control [Hopkins] in its operation." Dhanraj, 506 A.2d at 226. Moreover, nothing about the nature of Hopkins' job responsibilities suggests that "the use of the automobile was of such vital importance in furthering the [government's] business that [its] control over it might reasonably be inferred." Id. All the evidence before the court convincingly demonstrates that Hopkins was not acting within the scope of her employment at the time of the accident, but rather was on her way to work in her privately owned vehicle when she unfortunately, and, perhaps negligently, struck Plaintiff as she was crossing the street.³ Although Plaintiff may have a cause of action against Hopkins, under Maryland law, which the court must apply, she does not have a cause of action under these circumstances against her employer, the United States government. See Oaks, 660 A.2d at 427 ("[A]bsent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.") ( quoting Dhanraj, 506 A.2d at 226); see also, e.g., Henkelmann, 26 A.2d at 424; Sheets v. Chepko, 573 A.2d 413, 414 (Md.Ct.Spec.App. 1990); Henderson v. ATT Inc., 552 A.2d 935, 938 (Md.Ct.Spec.App. 1989); Restatement (Second) of Agency § 229 cmt. d (1958). Thus, Plaintiff has failed to meet her burden of proving that this court has subject matter jurisdiction under the FTCA, and the government's motion to dismiss must be granted. See White, 678 F.2d at 487.

3 Plaintiff's sole basis for opposing the government's motion is her assertion that Hopkins told her she was "on duty" when she exited her vehicle after the accident. See Paper 11, Ex. 1 ("Prout Aff.") ¶ 4. However, she provides no authority from any federal or state court, statute, or regulation that this fact, even if true, alters the court's conclusion. In fact, decisions by courts in this and other circuits suggest otherwise. See White v. Hardy, 678 F.2d 485, 487 (4^th Cir. 1982) (holding Army Sergeant was not acting within the scope of his employment under North Carolina law when he collided with the plaintiff notwithstanding the fact that he was on "24-hour active duty" and was driving an Army vehicle); Buckingham, 124 F.Supp.2d at 944 (finding U.S. Postal Service employee was not acting within the scope of her employment under Maryland law when she collided with the plaintiff notwithstanding the fact that she "was still within the time frame of authorized overtime for her task of delivering the mail," but was on her way home); Paly v. United States, 125 F.Supp. 798, 805-06 (D.Md. 1954) (finding U.S. Navy serviceman was not acting within the scope of his employment under Maryland law when, en route to a funeral for a deceased serviceman, he collided with the plaintiff notwithstanding the fact that he had been ordered to attend the funeral as the official naval escort); see also Hallett v. United States, 877 F.Supp. 1423, 1428 (D.Nev. 1995) ("A military servicemember may be on active duty, not on leave, and still not acting within the scope of employment."). Accordingly, Hopkins' "status" at the time of the accident is irrelevant to the question of whether she was acting within the scope of her employment under Maryland law.

B. Plaintiff's Motion to Stay

In light of the evidence put forth by the government, the court finds no reason to grant Plaintiff's motion for an indefinite stay, thereby deferring its resolution of the government's motion to dismiss, until such time that Hopkins can be served. The undisputed facts put forth by the government convincingly demonstrate that Hopkins was not acting within the scope of her employment as a U.S. Navy Financial and Customer Service technician when the accident occurred. Although it is Plaintiff's burden to prove subject matter jurisdiction properly exists, she has put forth nothing to refute the government's evidence, but merely argues "there is one person who can answer the question . . . and that is [Hopkins] herself." Paper 13 at 4. As the foregoing analysis makes clear, however, this statement is simply not accurate. Accordingly, Plaintiff's motion to stay will be denied as futile. Cf. Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1155 (4^th Cir. 1997) ("Only if the district court concludes that there is a genuine question of fact material to the scope-of-employment issue should the federal employee be burdened with discovery and an evidentiary hearing.").

As noted earlier, Hopkins has not been served and well more than the normal 120 days for service have passed. Moreover, the only basis of federal jurisdiction alleged in the complaint is federal question jurisdiction based on the FTCA. The complaint also refers to 28 U.S.C. § 1367, Supplemental Jurisdiction, presumably as the basis for jurisdiction over the state law negligence claim against Hopkins. Pursuant to 28 U.S.C. § 1367 (c)(3), a district court may decline to exercise supplemental jurisdiction over a claim when the court has dismissed all claims over which it has original jurisdiction. See Hall v. Prince George's County, 189 F.Supp.2d 320, 324 (D.Md. 2002). Such action is appropriate here. The state law negligence claim does not involve any issue of federal policy and no substantive proceedings have occurred here. Thus, there is no reason for this court to retain jurisdiction.

IV. Conclusion

For the foregoing reasons, Plaintiff's motion to stay is denied and Defendant's motion to dismiss for lack of subject matter jurisdiction is granted. Furthermore, the court declines to exercise supplemental jurisdiction over Plaintiff's state law claim against Hopkins and it will be dismissed without prejudice. A separate Order will follow.