United States District Court, D. Columbia
August 17, 2005.
BARBARA KEMP, Plaintiff,
HARLEY G. LAPIN, Director, Federal Bureau of Prisons, et. al. Defendants.
The opinion of the court was delivered by: PENN, JOHN, District Judge
This matter is before the Court pursuant to defendant's Motion
to Dismiss, or in the Alternative For Summary Judgment [#5].
Plaintiff sued defendants for negligence, pursuant to the Federal
Tort Claims Act, 28 U.S.C. § 2671 et. seq. ("FTCA"), alleging
that defendants breached their duty to plaintiff by failing to
use reasonable care to clear, remove, or salt a parking lot area.
Defendant filed a motion to dismiss for lack of subject matter
jurisdiction, and a motion for summary judgment. As explained
more fully below, the Court concludes that defendant's motion to
dismiss should be granted.*fn1
In plaintiff's complaint, filed December 17, 2004, plaintiff
claims that defendants breached their duty by failing to use reasonable care to clear
and salt a parking lot area where plaintiff slipped and fell due
to the presence of black ice. See Compl. at ¶¶ 5, 14. On March
28, 2005, defendants filed a motion to dismiss claiming that the
Court lacks subject matter jurisdiction because individual
government employees cannot be sued in their official capacity
for claims arising under the FTCA.*fn2 See Defs.' Mot. To
Dismiss at 4. Plaintiff subsequently filed a motion to amend the
complaint in order to insert the proper defendant. The Court
granted plaintiff's motion on May 17, 2005. However, plaintiff
did not file an amended complaint. On August 5, 2005, the Court
issued an order informing plaintiff that if she did not file her
amended complaint by August 12, 2005, the Court would treat the
motion to amend as withdrawn. To date, plaintiff has not filed an
I. Standard of Review
While the plaintiff bears the burden of establishing
jurisdiction, Federal Rule of Civil Procedure 12(b)(1) imposes an
affirmative obligation on the Court to ensure that it is acting
within the scope of it's judicial authority. Fowler v. District
of Columbia, 122 F.Supp.2d 37, 40 (D.D.C. 2000). When
determining whether jurisdiction exists, the court need not limit
itself to the allegations of the complaint. Id. The court "may
consider any materials outside the pleadings as it deems
appropriate in resolving whether it has jurisdiction over a
particular case." Scolaro v. D.C. Board of Elections and
Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v.
National Academy of Sciences, 297 U.S.App.D.C. 406, 411,
974 F.2d 192, 197 (1992).
II. FTCA Defendants
District courts have original jurisdiction over claims brought
under the FTCA. See 28 U.S.C.A. § 1346. However, the FTCA does
not permit suits against employees of the government "while
acting within the scope of [their] office or employment;" such
claims may only be brought against the United States.
28 U.S.C.A. § 2679. Plaintiff's complaint names two government employees as
defendants in this action. See Compl. When the Court granted
plaintiff leave to amend the complaint, plaintiff failed to do
so. Seven weeks later, the Court issued an additional order
directing plaintiff to file an amended complaint. However,
plaintiff did not respond. While this Circuit has treated motions
to amend for failure to name the proper defendant as amended
complaints, those cases can be distinguished because they involve
pro se litigants. See Benham v. Rice, No. 0301127, slip op.
at 3 (D.D.C. Mar. 24, 2005), citing Richardson v. United
States, 193 F.3d 545, 548 (D.C. Cir. 1999). Since plaintiff in
this case is represented by counsel, and was given various
opportunities to file an amended complaint, the Court has no
choice but to dismiss the action for lack of subject matter
For the foregoing reasons, defendant's Motion to Dismiss, or in
the Alternative, for Summary Judgment is granted. An appropriate
order accompanies this Memorandum Opinion.
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