The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Before the Court is Defendant the United States of America's Renewed Motion to Dismiss the Complaint [Dkt. # 80]. For the following reasons, Defendant's Motion will be granted.
Plaintiffs Gurpal Singh and Kulwinder Kaur are the parents and surviving heirs of RanjitSingh. Ranjit Singh was murdered in the District of Columbia on March 27, 2005, outside the Old Post Office Pavilion, after attending the "Bhangra Blowout Afterparty," an event sponsored by the South Asian Society, a student organization, of the George Washington University ("GWU"). See Second Am. Compl. ("Compl.") ¶¶ 2, 10.*fn1
In February 2006, Plaintiffs filed this lawsuit in D.C. Superior Court, naming the South Asian Society, GWU, and an unknown "Doe" security company as Defendants. The original named 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").*fn2 The Second Amended Complaint asserted 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). Compl. ¶¶ 15-21, 26-28.
On March 5, 2007, the United States moved to dismiss the claims against it for lack of jurisdiction and failure to state a claim. See Def.'s Mot. to Dismiss Pls.' Second Am. Compl. ("Def.'s Mem.") [Dkt. # 62]. The United States argued that the Court lacked 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 ("FTCA"), et seq. The United States also argued that Plaintiffs failed to exhaust their administrative remedies with respect to certain claims and were, therefore, procedurally barred from prosecuting them in this lawsuit.
The Court ruled that Plaintiffs were permitted an opportunity to conduct narrowlycircumscribed jurisdictional discovery before the Court would rule on the motion to dismiss. Accordingly, the motion was denied without prejudice with respect to Counts One and Two. See May 21, 2007 Order [Dkt. # 70]. Plaintiffs were permitted to conduct limited discovery on three discrete issues: (1) whether there was a mandatory policy regarding the placement of security guards at the exits of the Old Post Office Pavilion; (2) whether GSA exercised supervision over Hill Partners' day-to-day operations at the Old Post Office Pavilion; and (3) whether the Department of Homeland Security ("DHS") or Federal Protective Services ("FPS") exercised supervision over SecTek's day-to-day operations at the Old Post Office Pavilion. See May 21, 2007 Mem. Op. at 11 [Dkt. # 69].*fn3
On the United States' second argument, the Court agreed that Plaintiffs failed to present their personal claims to the United States before bringing suit. Accordingly, Count Four of the Second Amended Complaint (wrongful death) was dismissed as to the United States. See May 21, 2007 Order.
The United States now renews its Motion to Dismiss, contending that discovery yielded no new information that withstands its arguments in favor of dismissal.
During this limited discovery period, Plaintiff[s], among other things, deposed individuals, obtained documents, and received responses to interrogatories. However, the information obtained did not adduce any evidence to suggest that there was a mandatory policy regarding the placement of security guards at the exits of the Old Post Office Pavilion, that GSA exercised supervision over Hill Partners' day-today operations at the Old Post Office Pavilion; or that DHS or FPS exercised supervision over SecTek's day-to-day operations at the Old Post Office Pavilion.
Def.'s Renewed Mot. to Dismiss ("Def.'s Renewed Mem.") [Dkt. # 80] at 2.
The United States relies on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that the Court lacks subject matter jurisdiction and Plaintiffs fail to state a claim.
A. Federal Rule of Civil Procedure 12(b)(1)
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). Because subject matter jurisdiction is an Article 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). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), a plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)); see also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
Subject matter jurisdiction focuses on a federal court's power to hear the claim. Therefore, a federal court must give a plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required on a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003). Moreover, a court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Instead, to determine whether it has ...