United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm, United States District Judge
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. 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”) “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.
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. 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.
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.
“[a] few months after the incident,
” 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.
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. ¶
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.
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.
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.
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).
Tucker v. Specialized Loan Servicing, LLC, 83
F.Supp.3d 635, 648 (D. Md. ...