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Fleming v. United States

United States District Court, D. Maryland, Southern Division

August 1, 2016

JAMES FLEMING, et al., Plaintiffs,


          Paul W. Grimm, United States District Judge

         In April, 2010, a childcare worker at “the Cody CDC, ” the child development center at the Joint Base Myer-Henderson Hall (“JBMHH”), a joint base of the United States military, physically assaulted minor Plaintiff J.F., who was one year old at the time and attended day care at the Cody CDC.[1] Am. Compl. ¶¶ 4, 8, 9, ECF No. 16. Then, “[a] few months after the incident, ” the director of Family and Morale, Welfare and Recreation (“FMWR”)[2] “pressed a panic button” during a conversation with J.F.’s father, James Fleming, causing military police to arrive and escort J.F. and Mr. Fleming off of the military base at gunpoint. Id. ¶¶ 49-58. In November 2012, Fleming and J.F.’s mother, Taren Rice, learned that the Government had not conducted complete background checks for childcare workers it hired at the Cody CDC, and it had hired more than thirty workers with criminal records, including assault and sexual assault. Id. ¶¶ 67, 71. Fleming and Rice, on J.F.’s behalf, filed an administrative tort claim with the Department of the Army (“Army”) on March 27, 2014, which the Army denied on September 15, 2014. Id. ¶¶ 2, 91.

         On March 13, 2015, Plaintiffs then filed this five-count negligence action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 (“FTCA”), based on its negligent hiring, retention and supervision of childcare workers with criminal records. ECF No. 1. Currently pending is the Government’s Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 17.[3] Despite the gravity of their allegations, because Plaintiffs did not file a timely administrative claim and otherwise failed to state a claim for which the Government may be liable, I must grant the Government’s Motion and dismiss this case.


         When she was one year old, J.F. “was violently, physically assaulted by a teacher at the Cody CDC.” Am. Compl. ¶¶ 8, 9. The childcare worker “placed J.F. in a toy tunnel and slammed her on the ground several times simply because J.F. was crying.” Id. Her parents, who worked at JBMHH, learned about the incident “approximately two weeks later” and watched a video of it. Id. ¶¶ 4, 5, 22, 33.

         Then, “[a] few months after the incident, ”[4] J.F. and Mr. Fleming “were escorted off of the base at gunpoint” by military police, after Mr. Fleming tried to drop J.F. off at the Cody CDC without having paid the childcare bill in full. Id. ¶¶ 49-58. Monique Murdock, the director of the FMWR at that time, had told him that “the bill needed to be paid for J.F. to continue attending day care, ” but her immediate supervisor, William Hovarth, told Fleming to drop J.F. off and “said he would inform Director Murdock.” Id. When Fleming arrived with J.F. and discussed the circumstances with Murdock, the director “pressed a panic button under the front desk that was recently installed to call military police in the event of a threat or emergency.” Id.

         More than two years later, in November 2012, “J.F.’s parents . . . learned of the systemic breakdown in security and background reviews of potential childcare workers at the Cody CDC, ” including the “hir[ing] and plac[ing] in charge of children” of thirty-one or more childcare workers who “had criminal convictions and criminal backgrounds, including assault and sexual assault.” Id. ¶¶ 67, 71. Plaintiffs claim that J.F. “continued to be mentally and physically abused from April 2010 until January 2013.” Id. ¶ 81. They allege that “J.F.’s parents only learned of the proximate cause of J.F.’s assault through news media reports in November 2012, after two more children were assaulted at the same facility.” Id. ¶ 84.

         After almost four years passed since the two incidents, Fleming and Rice filed an administrative tort claim with the Army on March 27, 2014 on behalf of J.F., regarding her “abuse at the Cody CDC”; the Army denied the claim on September 15, 2014. Am. Compl. ¶¶ 2, 91. Plaintiffs filed this FTCA action against the United States on March 13, 2015. Compl. 1, ECF No. 1. They claim negligence based on the Government’s hiring, retention, and supervision of “more than two dozen teachers with criminal backgrounds at its Cody CDC child care facility on JBMHH, ” which caused “serious injuries and psychological trauma” to the minor plaintiff and “emotional distress” to her parents, Am. Compl. ¶¶ 99-101 (Count I). On the same basis, they also claim negligent infliction of emotional distress that caused “serious injuries and severe emotional distress” to J.F. (Count II), id. ¶¶ 106-07, and caused “pain and suffering” to her parents (Count III), id. ¶ 114. Additionally, J.F. and Fleming claim negligent infliction of emotional distress from Murdock pushing the panic button, causing them to be surrounded by “multiple military police with guns drawn.” Id. ¶ 118 (Count IV). They claim that, as a result, they suffered “severe emotional distress, including anxiety, stress, and fear of police and strangers.” Id. ¶ 119.

         The Government sought leave to file a motion to dismiss, ECF No. 8, and I gave Plaintiffs the opportunity to amend their complaint, based on the Government’s letter request, prior to the filing of the motion, ECF No. 15. Plaintiffs filed their Amended Complaint, and the Government filed the pending motion. In its letter request, the Government asserted various grounds for dismissal: the statute of limitations, Plaintiffs’ failure to present all claims at the administrative level, and the confines of the Government’s limited waiver of sovereign immunity. Ltr. Req. 1-2. In its memorandum, the Government raises the same grounds, as well as Plaintiffs’ failure to state a claim for negligent infliction of emotional distress. Gov’t Mem. 13, 17, 20, 22.

         Standard of Review

         The FTCA provides that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such a claim accrues or unless action is begun within six months after” the agency mails notice of denial of the claim. 28 U.S.C. § 2401(b). Until recently, courts have analyzed motions to dismiss based on this statute of limitations as Rule 12(b)(1) motions to dismiss for lack of jurisdiction. E.g., Horsey v. United States, No. ELH-14-03844, 2015 WL 1566238, at *3 (D. Md. Apr. 7, 2015) (“The Fourth Circuit has held that a plaintiff’s failure to timely file FTCA claims deprives federal courts of jurisdiction over the claims. Accordingly, the Government’s FTCA Motion is properly adjudicated under Rule 12(b)(1).”). The Supreme Court since has held that § 2401(b) imposes a “standard time bar” that is not jurisdictional. United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1629, 1632 (2015). Therefore, I will consider the Government’s Motion to Dismiss under Rule 12(b)(6). See id.

         Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule’s purpose “‘is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.’” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief, ” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

A Rule 12(b)(6) motion “generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff’s claim is time-barred, ” except under “the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). To consider a statute of limitations defense at the Rule 12(b)(6) stage, “all facts necessary to the affirmative defense [must] ‘clearly appear[ ] on the face of the complaint.’” Id. (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993) (emphasis added)). Then, if the allegations on the face of the complaint show that the affirmative defense would bar any recovery, the plaintiff fails to state a claim. Jones v. Bock, 549 U.S. 199, 214-15 (2007).

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