The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiffs Robert T. Lee*fn1 and Alyce Summers bring this action against the United States of America, Officer Luis Arellano of the U.S. Capitol Police, and other John Doe officers of the U.S. Capitol Police. Plaintiffs seek compensatory and punitive damages under the five remaining counts*fn2 alleged in their amended complaint: Count II (Federal Tort Claims Act) ("FTCA")), Count III (Survival Act),*fn3 Count IV (Wrongful Death),*fn4 Count V (Gross Negligence), and Count VI (Assault and Battery). Am. Compl. ¶¶ 26-41. Defendants*fn5 move to dismiss all of the remaining counts of this action for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient process, insufficient service of process, and failure to state a claim upon which relief can be granted. Defs.' Mot. at 1. In the alternative, defendants move for summary judgment. Id. Upon careful consideration of the motion, the parties' memoranda, the applicable law, and the entire record, and for the reasons set forth below, the Court will deny the defendants' motion.
On the night before Christmas Eve in 2005, Jewell West and Alyce Summers accepted a ride from a man driving a 2003, 2-door Z4 BMW in the District of Columbia. Am. Compl. ¶¶ 9-10. Unbeknownst to Summers and West, this man had stolen the vehicle during an armed carjacking about half an hour earlier. Id. ¶ 10 As the car drove in the area of Washington Avenue, SW, Officer Arellano attempted to initiate a stop of the vehicle for an alleged traffic violation. Id. ¶ 11. The driver did not stop, so Arellano pursued the vehicle. Id. At some point early in the pursuit, if not before it had even started, Arellano received word from the dispatcher that the car at issue was the same car that had been carjacked earlier. See Defs.' Mem. at 2; Dec. 12, 2007 Declaration of Cecelia E. Barrios ("Barrios Decl.") ¶¶ 4-5; Dec. 24, 2005 Radio Transcript ("Radio Transcript") at 1. Arellano pursued the driver, with both driving at speeds of more than eighty miles per hour, in areas where the posted speed limit was only twenty-five miles per hour. Am. Compl. ¶ 12. Other John Doe officers of the U.S. Capitol Police joined the chase as well. Id. ¶ 14. The officer lost sight of the vehicle somewhere on Pennsylvania Avenue. See Barrios Decl. ¶¶ 4-5; Radio Transcript at 1-2. The carjacker eventually lost control of the vehicle at the Sousa Bridge on the 1700 block of Pennsylvania Avenue, SE, striking the curb on both sides of the street and a light pole. Am. Compl. ¶ 17. As a result of the collision, West was ejected from the car and killed, while Summers sustained serious non-life-threatening injuries. Id. ¶¶ 18-19.
Plaintiffs filed their administrative claims with the United States Capitol Police as required by the FTCA on December 22, 2006. Id. ¶ 3; see 28 U.S.C. § 2675. The Capitol Police issued a decision denying plaintiffs' claims on May 7, 2007. Am. Compl. ¶ 3. Now the plaintiffs come to this Court, contending that their harm was the direct and proximate result of defendants' high speed chase with the BMW. See id. ¶¶ 25, 29, 34, 38, 41. They seek compensatory and punitive damages. Id. ¶ 1.
"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --plaintiffs here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624- 25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992).
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200 (2007) (per curiam). "A Rule 12(b)(6) motion tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Thus, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted).
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.*fn6
I. Substitution of the United States as Sole Defendant
Before the Court takes up the merits of defendants' motion to dismiss, there is a preliminary matter concerning the identity of the defendants. Defendants argue that the United States must be substituted as the sole defendant ...