United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
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
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
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..
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. 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.
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.
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.
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.
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.
Government has moved for dismissal under Rules 12(b)(1),
12(b)(5), and 12(b)(6).
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).
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)).
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
motions are now pending: first, the Motion to Substitute (ECF
No. 8), and, second, the Motion to Dismiss (ECF No. ...