United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall grant
Factual and Procedural Background
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
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.
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.
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).
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, ...