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Nelson v. Kemper

August 30, 2006


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Pamela Nelson ("Nelson"), brings this action against Michelle Joyce Kemper ("Kemper"), an employee of the United States Department of Health and Human Services ("HHS"), claiming that Kemper's negligent operation of her automobile caused an accident that resulted in severe injuries to Nelson and damage to her automobile. Before the court is Kemper's renewed motion to dismiss (Dkt. #18). Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that Kemper's motion must be granted.


On April 10, 2000, at approximately 10:48 AM, Nelson was driving her car north on Dogwood Street, a two-lane road, in Washington, D.C. When Kemper, who also was proceeding in her car north on Dogwood, attempted to make an improper right turn from the left lane, she struck Nelson's car. Nelson's car was damaged and Nelson suffered severe injuries to her back, neck, and legs.

In June 2001, Nelson filed a negligence action against Kemper in D.C. Superior Court. Over six months later, on February 8, 2002, Kemper filed a motion for summary judgment, asserting that under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., the United States, not she, was the proper defendant. On May 9, 2002, the Superior Court denied Kemper's motion because she failed to demonstrate that she attempted to obtain a certification from the U.S. Attorney General, or anyone with delegated authority, that she was driving her car within the scope of her federal employment when she hit Nelson's car. On June 4, 2003, after obtaining the certification, Kemper removed this case to this court pursuant to 28 U.S.C. §§ 1441, 1442(a)(1).

On October 1, 2003, Kemper again moved to dismiss Nelson's complaint. Kemper argued, as she had in Superior Court, that under the FTCA, the United States should be substituted as the only proper defendant. In addition, Kemper contended that any tort action against the United States was unsustainable given that Nelson had failed to exhaust her administrative remedies prior to initiating this federal action.

In an opinion and order dated July 20, 2004, this court denied Kemper's motion. See Nelson v. Kemper, No. 03-01219, slip op. at 7 (D.D.C. July 20, 2004). Confining the scope of its review to the pleadings, this court concluded that Nelson had pled sufficient facts to rebut the government's certification that Kemper was acting within the scope of her employment at the time of the accident. This court noted a considerable degree of ambiguity surrounding the scope-of-employment question and, in order to illuminate the issue, permitted discovery limited to the validity of the government's certification. Id. at 6--7. The court informed Kemper that she would be permitted to renew her motion following the conclusion of discovery.

Now, after the close of discovery, Kemper renews her motion to dismiss.


A. Standard of Review

Kemper moves to dismiss Nelson's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Notwithstanding the manner in which Kemper has styled her motion, because both parties have taken discovery on the issue and have submitted materials beyond the pleadings to address whether Kemper was acting within the scope of her employment at the time of the accident, the court will treat Kemper's motion to dismiss under Rule 12(b)(6) as one for summary judgment. See Fed. R. Civ. P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .").

Under Federal Rule of Civil Procedure 56, a motion for summary judgment should be granted only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party's "initial responsibility" consists of "informing the [trial] court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).

If the moving party meets its burden, the burden then shifts to the non-moving party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586--87 (1986). To meet its burden, the non-moving party must show that "'the evidence is such that a reasonable jury could return a verdict'" in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322 n.3. If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249--50.

With respect to Kemper's motion under Rule 12(b)(1), Nelson's complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Hosey v. Jacobik, 966 F. Supp. 12, 12 (D.D.C. 1997). A court may, however, consider materials outside the pleadings it deems appropriate to decide jurisdiction. Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002) ("A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of . . . subject-matter jurisdiction."). ...

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