The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Pending before the Court is Defendant the United States of America's Motion to Dismiss. The United States contends that the Court lacks subject matter jurisdiction over Plaintiffs' tort claims under the"discretionary function" and "independent contractor" exceptions to the general waiver of sovereign immunity contained in the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (the "FTCA"). The United States also argues that Plaintiffs failed to exhaust their administrative remedies with respect to certain claims and are, therefore, procedurally barred from prosecuting them in this lawsuit. Plaintiffs offer no opposition to the United States's contention that the discretionary function and independent contractor exceptions apply; they say only that they should be allowed to conduct discovery before the Court decides that issue. Although the United States may well be correct that those exceptions apply here, the Court must allow Plaintiffs an opportunity to conduct narrowly circumscribed jurisdictional discovery before it can consider dismissal for lack of jurisdiction. With respect to the United States's second argument, the Court agrees that Plaintiffs failed to present their personal claims to the United States before filing this lawsuit. Accordingly, the Court will grant the motion to dismiss with respect Plaintiffs' personal claims, and will deny the motion without prejudice and allow Plaintiffs to take limited discovery with respect to the remaining claims.
Plaintiffs Gurpal Singh and Kulwinder Kaur are the parents and surviving heirs of Ranjit Singh, a young man who was murdered on March 27, 2005. Second Am. Compl. ("Compl.")
¶ 2. The circumstances surrounding Ranjit's death are the heart of this matter. On March 26, 2005, the evening before his death, Ranjit and his friends attended an event called the "Bhangra Blowout," which was sponsored by the South Asian Society of the George Washington University. Id. ¶ 10. The Blowout is a dance competition in which teams from colleges around the country compete in Bhangra, a traditional style of Punjabi dancing. Id. The competition itself is not at issue here; rather, it is events that transpired at the so-called "after-party" that gave rise to this lawsuit.
The after-party was held at the Old Post Office Pavilion, located at 1100 Pennsylvania Avenue in Northwest Washington, D.C. Id. At some point during the after-party, one of Ranjit's friends got involved in a dispute with another partygoer. Id. ¶ 13. Some pushing may have occurred, but the incident appeared to end calmly and no security personnel were involved. Id. Tragically, however, the dispute was far from over. Later on, Ranjit and his friends left the Old Post Office Pavilion through a side exit. Id. Once outside, they encountered the person with whom Ranjit's friend had earlier tussled. Id. This person appeared to be intoxicated; he was talking loudly and acting in an agitated manner, and he aggressively confronted Ranjit's group. Ranjit and his friends walked away, but their adversary pursued them. Id. Eventually Ranjit came face-to-face with this person about 10 feet from the bottom of the Old Post Office Pavilion's steps. Id. The man then stabbed Ranjit in the chest, inflicting a mortal wound to Ranjit's heart. Ranjit was taken to George Washington University Hospital where he was pronounced dead at 3:20 a.m. on March 27, 2005. Id.
In February 2006 Plaintiffs filed this lawsuit in D.C. Superior Court, naming the South Asian Society, George Washington University, and an unknown "Doe" security company as Defendants. The original Defendants removed the case to this Court in March 2006. Since then, Plaintiffs have amended the complaint twice to add causes of action and defendants - including the United States, which owns the Old Post Office Pavilion through its General Services Administration ("GSA"). The Second Amended Complaint ("the Complaint") now asserts three causes of action against the United States: negligence (Count One); negligent selection, retention, and supervision of security providers (Count Two); and wrongful death (Count Four).*fn1 Compl. ¶¶ 15-21, 26-28. On March 5, 2007, the United States moved to dismiss the Complaint for lack of jurisdiction and failure to state a claim. That motion has been fully briefed and is now ripe for decision.
Under Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002); Pitney Bowes Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). Because "subject-matter jurisdiction is an 'Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). It is well established that, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint, "but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. Fed. Election Comm'n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005); see Lockamy v. Truesdale, 182 F. Supp. 2d 26, 30-31 (D.D.C. 2001).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The district court must treat the complaint's factual allegations - including mixed questions of law and fact - as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). The court need not, however, accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).In deciding a 12(b)(6) motion, district courts may typically consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).However, the court may, in its discretion, consider matters outside the pleadings and thereby convert a Rule 12(b)(6) motion into a motion for summary judgment under Rule 56. See Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).
The United States raises two arguments in support of its motion to dismiss. First, it argues that the Court lacks subject matter jurisdiction under the FTCA because Plaintiffs' claims fall under two exceptions to FTCA's waiver of sovereign immunity. Second, it argues that Plaintiffs' wrongful death and negligent selection claims are barred because ...