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Warns v. Simms

United States District Court, D. Maryland

October 30, 2019

FRANCIS WARNS, Plaintiff,
v.
LORNA SIMMS, et al., Defendants.

          MEMORANDUM

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         Francis Warns, the self-represented plaintiff, filed a defamation action against defendants Morris Ricks and Lorna Simms in the District Court of Maryland for Baltimore County, seeking $5, 000 in damages to redress allegedly false statements made by Ricks to the police on November 13, 2018. ECF 3 (the “Complaint”). Ricks is an employee of the Department of Veterans Affairs (the “Department”). ECF 2 at 1. Simms is a former employee of the Department. ECF 8 at 1.

         The United States removed the case to this Court on behalf of Ricks, pursuant to 28 U.S.C. § 1441 and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671. ECF 1. It also filed a motion to substitute itself as defendant in lieu of Ricks. ECF 2.

         The United States has also moved to dismiss, based on lack of jurisdiction and insufficient service of process. ECF 9 (the “Motion”). In the Motion, the government argues that dismissal is warranted based on sovereign immunity; plaintiff's failure to exhaust administrative remedies; and the United States was not properly served. See Id. at 2. On April 2, 2019, plaintiff was notified of his right to respond, and of the prospect of dismissal of his suit if he failed to do so. ECF 10. Plaintiff has not responded to the Motion, and the time to do so has expired.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.

         I. Factual and Procedural Background

         Plaintiff filed suit in State court on March 1, 2019. ECF 3. The allegations in the Complaint arise out of an interaction between plaintiff and Ricks on November 13, 2018. Id. at 3. Plaintiff claims he went to the VA Hospital in Baltimore on that date to see Ricks, “a patient advocate.” Id. According to plaintiff, Ricks “yelled” at him “to sit down.” Id. Plaintiff recounts that Ricks then took plaintiff back to his office and told him “to sit in a chair in the lobby.” Id. Instead, plaintiff “went to the 6th floor where the director is and found out [Ricks] called the VA police and put a red alert out on [plaintiff].” Id. Although “their [sic] was no police report, ” he alleges that Ricks “utter[ed] false statements to the police” about plaintiff. Id. The Complaint contains no allegations concerning Simms.

         The United States timely removed the case to federal court on March 28, 2019. ECF 1. It also submitted a certification that Ricks “was acting within the scope of his employment as an employee of the United States at all times relevant to the allegations contained in Plaintiff's complaint.” ECF 1-2. Therefore, it moved to substitute itself for Ricks. ECF 2. It said, id. at 1:

(1) the plaintiff in this action seeks judgment for allegedly tortious acts committed by United States Department of Veterans Affairs (“VA”) employee Morris Ricks;
(2) at the times of the alleged acts giving rise to this suit, Mr. Ricks was acting within the scope of his employment for the United States of America, which has been verified by the Acting United States Attorney for the District of Maryland, who has executed a Certification, a copy of which is attached as Exhibit 2 to the Notice of Removal (ECF No. 1-2); and (3) 28 U.S.C. § 2679(b) makes exclusive the remedy against the United States, as provided by 28 U.S.C. § 1346(b).

         In the Motion, the government asks the Court to dismiss plaintiff's suit “pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(5).” ECF 9 at 1. A Rule 12/56 letter, advising plaintiff of the Motion and his right to file a response, as well as the fact that the Court could dismiss his claim if he failed to respond, was mailed to plaintiff on April 2, 2019. ECF 10. As noted, he did not respond. There is no indication on the docket that Simms was ever served with the suit.

         II. Legal Standard[1]

         A challenge to a federal court's subject matter jurisdiction is reviewed pursuant to Fed.R.Civ.P. 12(b)(1). A motion under Rule 12(b)(1) raises the issue of “whether the court has the competence or authority to hear and decide the case.” Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005); see generally Ford Bend Co. v. Davis, U.S., 139 S.Ct. 1843, 1848 (2019) (explaining the term “jurisdiction”). Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

         A test of subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United States, ...


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