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KEMP v. LAPIN

United States District Court, D. Columbia


August 17, 2005.

BARBARA KEMP, Plaintiff,
v.
HARLEY G. LAPIN, Director, Federal Bureau of Prisons, et. al. Defendants.

The opinion of the court was delivered by: PENN, JOHN, District Judge

MEMORANDUM OPINION

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

BACKGROUND

  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that if she did not file her amended complaint by August 12, 2005, the Court would treat the motion to amend as withdrawn.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 amended complaint.

  DISCUSSION

  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 jurisdiction.

  CONCLUSION

  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.

20050817

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