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Rogers v. Chapman

United States District Court, D. Maryland, Southern Division

July 17, 2019

MATTHEW ROGERS, Plaintiff,
v.
ERIC CHAPMAN, Defendant.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         The preprinted complaint form for bringing a small-claims suit in Maryland's district courts prompts the filer to check a box indicating what type of case he or she is looking to open. It presents the filer with five options: contract, tort, replevin, detinue, and "bad faith insurance claim." Compl., ECF No. 1-4. The plaintiff in this case -a Smithsonian Institution security guard who sought to recover a little more than half a day's wages from a supervisor who sent him home without pay - checked the box marked "tort," id, and it is likely because of this seemingly minor decision that he now finds himself dueling with the United States government in federal court.

         What happened, in short, is the United States Attorney for the District of Maryland exercised his authority under the Federal Torts Claim Act to certify that the supervisor, Defendant Eric Chapman, was acting within the scope of his employment when he sent the plaintiff home. The Government then removed the suit to federal court, moved to take Mr. Chapman's place as the party defendant, and filed a motion to dismiss the Complaint on various procedural and merits-based grounds.

         I do not agree with all of the Government's arguments. I do find, though, that the one-paragraph Complaint fails to state a claim upon which relief may be granted. For this reason, the case must be dismissed without prejudice. But, since I find that Mr. Rogers may have a viable claim to file, and inasmuch as having the assistance of counsel will help to level the playing field as the case moves forward, I am appointing pro bono counsel to represent him, and to assist him in determining whether a viable cause of action may be asserted against the government..

         FACTUAL BACKGROUND

         The episode that prompted this lawsuit occurred on November 6, 2017, the day Plaintiff Matthew Rogers returned to work after a period of sick leave. See Compl; Opp'n 1, ECF No. 17. Mr. Rogers had provided his employer with a doctors note (or as the parties here term it, a "verification of treatment") explaining that he had undergone surgery and would be "unable to work" until November 2, 2017.[1] Opp'n Exs. 13, ECF No. 17-1. Mr. Rogers has alleged that his supervisor, Mr. Chapman, found the note unsatisfactory and directed him to see the health services office. See Id. at 5. The nurse there said no examination was necessary, but Mr. Chapman remained unsatisfied and sent Mr. Rogers home without pay. See Compl. Mr. Rogers provided a new doctors note the next day. See Opp'n Exs. 1. All told, he missed five and a half hours of work. See id.

         Mr. Rogers sought immediate help from his union representative. See Id. at 7. He later filed a written grievance with the Smithsonian's Office of Protection Services ("OPS"). See Id. at 1. On March 23, 2018, OPS District Manager Terrell Wilson issued a decision denying the grievance. See Id. at 1-2.

         Mr. Rogers filed his small-claims suit on September 19, 2018, seeking $5, 000 for lost wages and "mental anguish." Campl. The narrative portion of the Complaint reads in full:

On Oct 19, 2017 while on FMLA/sick leave I provided my supervisor a doctor note which ... excused me[.] I returned back on Nov 6 2017 and was told I need to go see the nurse for an examinations I contacted the nurse who informed me she did not need[] to see me[.] I informed my supervisor who claimed there now was a problem with my note which he had since Oct 19, 2017 and he excused me. For no reaseon [sic] he sent me home without cause[.] A complaint was filed [in] which he made several untrue statements causing me to lose wages and mental anguish[.] There [is] no policy to [justify] his actions.

Id.

         Mr. Rogers served Mr. Chapman with a summons and a copy of the Complaint on September 27, 208.. See Mot. to Dismiss ¶ 7, ECF No. 15. The U.S. Attorneys Office for the District of Maryland "received notice" of the action the next day. See Notice of Removal ¶ 3, ECF NO.1. Two weeks later, the U.S. Attorney certified pursuant to 28 U.S.C. § 2679(d) and 28 C.F.R. § 15.4 that Mr. Chapman "was acting within the scope of his employment as an employee of the United States at all times relevant to the allegations contained in Plaintiffs Complaint." Certification, ECF No. 8-1. The Government then removed the case to this Court, see Notice of Removal, moved for a court order substituting itself for Mr. Chapman as the party defendant, see Mot. to Substitute, ECF No.8, and filed a Motion to Dismiss the Complaint, see Mot. to Dismiss.

         The Motion to Substitute is uncontested. Mr. Rogers has, however, filed a response in opposition to the Motion to Dismiss. See Opp'n. Both motions are ripe for adjudication. No. hearing is necessary. See Loc. R. 105.6.

         STANDARD OF REVIEW

         The Government has moved for dismissal under Rules 12(b)(1), 12(b)(5), and 12(b)(6).

         A Rule 12(b)(1) motion challenges the district court's subject matter jurisdiction, asserting, in effect, that the plaintiff lacks any "right to be in the district court at all." Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). The burden of establishing the court's subject matter jurisdiction rests with the plaintiff. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The district 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." Balfour Beatty Infrastructure, Inc. v. Mayor & City Council of Bait., 855 F.3d 247, 251 (4th Cir. 2017) (quoting Evans, 166 F.3d at 647).

         Rule 12(b)(5), by contrast, permits a defendant to seek dismissal for insufficient service of process. See Fed. R. Civ. P. 12(b)(5). "Once service has been contested, the plaintiff bears the burden of establishing the validity of service pursuant to Rule 4." Moseley v. Pollozz, No. RDB-18-1292, 2019 WL 418407, at *2 (D. Md. Feb. 1, 2019) (quoting Parker v. Am. Brokers Conduit, 179 F.Supp.3d 509, 515 (D. Md. 2016)). The "plain requirements for the means of effective service of process may not be ignored." Curtis v. Md. Envtl. Serv., No. RDB-17-2728, 2018 WL 1394020, at *2 (D. Md. Mar. 19, 2018.. Generally, though, "when service of process gives the defendant actual notice of the pending action, a court may construe Rule 4 liberally to effectuate service and uphold the jurisdiction of the court." Brown-Thomas v. Hynie, 367 F.Supp.3d 452, 461 (D.S.C. 2019) (quoting O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006)).

         A third rule, Rule 12(b)(6), authorizes parties in a civil action to seek the dismissal of a claim or complaint on the grounds that it fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6); Tucker v. Specialized Loan Servicing, LLC, 83 F.Supp.3d 635, 647-48, (D. Md. 2015). 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." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). To survive a motion to dismiss, 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," Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "A claim has I 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." Id.

         DISCUSSION

         Two motions are now pending: first, the Motion to Substitute (ECF No. 8), and, second, the Motion to Dismiss (ECF No. ...


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