Johnston v. Singh ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NIKKI L. JOHNSTON,
Plaintiff
v. Civil Action No. 22-1284 (CKK)
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION
(October 24, 2022)
This Federal Tort Claims Act (“FTCA”) case is before the Court on Defendant United
States of America’s (“Defendant” or “United States”) [15] Motion to Dismiss and Plaintiff Nikki
L. Johnston’s (“Johnston”) [17] Motion for Sanctions. Plaintiff has sued the United States and
Defendant Whala B. Singh (“Singh”) for injuries sustained from a collision between a
government vehicle driven by Eric Radwick, an employee of the United States General Services
Administration (“GSA”), and a vehicle driven by Singh in which Johnston was a passenger.
Johnson alleges her injuries were a proximate and legal result of either Radwick’s negligence,
Singh’s negligence, or both. Because Johnston’s claim as against the United States is untimely,
and upon consideration of the pleadings, 1 the relevant legal authorities, and the entire record, the
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This Memorandum Opinion focuses on the following documents:
• Plaintiff’s Amended Complaint, ECF No. 9 (“Am. Compl.”);
• Defendant United States of America’s Renewed Motion to Dismiss, ECF No. 15
(“MTD”);
• Plaintiff’s Memorandum in Response to Defendant United States of America’s Motion to
Dismiss, ECF No. 17 (“Pl.’s Opp.”);
• Defendant United States of America’s Reply in Support of its Renewed Motion to
Dismiss, ECF No. 20 (“Repl.”);
• Plaintiff’s Motion for Rule 11 Sanctions Against the United States of America and
Memorandum in Support, ECF No. 17 (“Sanctions Mot.”); and
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Court shall GRANT the United States’ [15] Motion to Dismiss. The legal infirmities requiring
the United States’ dismissal as a defendant carry over to Plaintiff’s [17] Motion for Sanctions, so
it shall be DENIED. Additionally, because Plaintiff’s [17] Motion for Sanctions is so utterly
devoid of merit, the Court shall GRANT the United States’ request for costs incurred in
responding to the motion.
I. BACKGROUND
For the purposes of the motion to dismiss before it, the Court accepts as true the well-
pleaded allegations in Plaintiff’s Amended Complaint. The Court does “not accept as true,
however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts
alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).
The operative complaint’s allegations are quite sparse. Plaintiff, an Arkansan, was a
passenger in Singh’s car on February 3, 2020. Am. Compl. ¶¶ 1, 6. Singh’s vehicle “collided
with the vehicle being operated by Mr. Eric. Donald Radwick on behalf of the United States
Government, its employee acting in the course and scope of his employment.” Id. ¶ 6. Both
Singh and Radwick operated their cars negligently, injuring Plaintiff. Id. ¶ 8.
On March 22, 2022, Plaintiff filed her initial complaint in the Superior Court for the
District of Columbia. There, despite Plaintiff’s current acknowledgment that Radwick was
acting in the course of her employment at the time of the purportedly tortious actions, Plaintiff
sued Radwick (and Singh) in their personal capacities. ECF No. 1-1 at 2. By at least May 15,
2020, counsel for Plaintiff had concluded that Radwick was acting in the course of government
• Defendant United States of America’s Opposition to Plaintiff’s Motion for Rule 11
Sanctions (“Def.’s Opp.”).
Plaintiff did not file a reply in support of her motion for sanctions.
In an exercise of its discretion, the Court finds that holding oral argument in this action
would not be of assistance in rendering a decision. See LCvR 7(f).
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employment, filing a notice of claim pursuant to the FTCA. See ECF No. 26-3. Counsel for
Plaintiff evidently erroneously believed Radwick to be an employee of the United States Secret
Service based on what “the responding officer told Ms. Johnston.” Id.; Decl. of Nikki L.
Johnston, ECF No. 26-1 ¶ 3. Radwick is, in fact, an employee of an entirely different federal
agency, the GSA. Decl. of Eric D. Radwick, ECF No. 5-1 ¶ 1. Based on counsel for Plaintiff’s
erroneous belief, Plaintiff served a notice of claim upon the United States Secret Service, the
incorrect agency, effective January 31, 2022. ECF No. 5 at 1.
Because Radwick was acting in the course of his employment as a GSA employee,
Defendant United States removed the case from Superior Court to this court on May 3, 2022 by
filing its Westfall Certification, ECF No. 1-2. This Court now has removal jurisdiction as to the
United States pursuant to 28 U.S.C. § 2679(d) and as to Singh pursuant to 28 U.S.C. §§ 1441(a)
and 1447(c). Plaintiff effected service on Radwick and Singh on April 28, 2022. Affidavits of
Service, Johnston v. Singh, 2022 CA 001295 V (D.C. Sup. Ct. May 4, 2022). Plaintiff has not
yet served the United States. See Pl.’s Opp. at 4-5. Plaintiff filed her operative Amended
Complaint on June 6, 2022, and the United States’ motion to dismiss that complaint is now ripe.
Although Plaintiff alleges in her amended complaint that Radwick was an employee of the Secret
Service, Plaintiff now concedes that Radwick was a GSA employee at the time of the alleged
tortious conduct. ECF No. 26 at 1. Plaintiff also filed a Rule 11 motion for sanctions against the
United States on July 28, 2022, arguing, essentially, that the pending motion to dismiss is
frivolous. Mot. Sanctions at 4. In response, the United States argues that the sanctions motion
“is a waste of judicial time and resources because it completely lacks merit.” Def.’s Opp. at 8.
This motion is also ripe for resolution.
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II. LEGAL STANDARDS
A. Motion to Dismiss for Lack of Jurisdiction
To survive a motion to dismiss pursuant to Rule 12(b)(1), plaintiff bears the burden of
establishing that the court has subject matter jurisdiction over its claim. See Moms Against
Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether there is
jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced
in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.
2003) (citations omitted). “Although a court must accept as true all factual allegations contained
in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the 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.” Wright v. Foreign Serv. Grievance Bd.,
503 F. Supp. 2d 163, 170 (D.D.C. 2007) (citations omitted). When considering whether to
dismiss for lack of jurisdiction, “a court may consider such materials outside the pleadings as it
deems appropriate to resolve the [jurisdictional] question.” Competitive Enter. Inst. v. EPA, 153
F. Supp. 3d 376, 382 (D.D.C. 2016) (internal quotation marks omitted).
B. Motion to Dismiss for Ineffective Service
“In the absence of service of process (or waiver of service by the defendant), a court
ordinarily may not exercise power over a party the complaint names as a defendant.” Murphy
Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Pursuant to Federal Rule of
Civil Procedure 12(b)(5), “if the plaintiff does not effect service on a defendant, then the
defendant may move to dismiss the complaint” without prejudice. Hilska v. Jones, 217 F.R.D.
16, 20 (D.D.C. 2003). The plaintiff “bears the burden of proving that she has effected proper
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service.” Jouanny v. Embassy of France, 220 F. Supp. 3d 34, 37-38 (D.D.C. 2016). Insufficient
service is a “fatal jurisdictional defect” and grounds for dismissal. Id. at 38.
III. DISCUSSION
A. Motion to Dismiss
1. Service of Process
The United States first argues that this case should be dismissed without prejudice for
ineffective service. Citing nothing but the Federal Rules of Civil Procedure, the United States
argues that Plaintiff must serve the United States upon removal under the Westfall Act despite
Plaintiff having already effected service upon Radwick. Not so. Although Federal Rule of Civil
Procedure 4(i) normally governs service of process upon the United States, its instrumentalities,
and its employees, the Westfall Act obviates that requirement. Pursuant to 28 U.S.C. § 2679(c),
once an individual employee receives service of process, they must “deliver within such time
after date of service . . . all process served upon [them] . . . to [their] immediate supervisor” who
then must forward that service of process “to the United States attorney for the district embracing
the place wherein the proceeding is brought.” In other words, once the employee is effectively
served, they become “the agent for service of process for the United States.” McGowan v.
Williams, 623 F.2d 1239, 1244 (7th Cir. 1980). Because Radwick was effectively served in his
personal capacity, no further service of process was necessary when the United States removed
this case pursuant to 28 U.S.C. § 2679(d).
2. Statute of Limitations
More successfully, the United States argues that the Court should dismiss this matter with
prejudice because the statute of limitations has run on Plaintiff’s claim against the United States.
Pursuant to 28 U.S.C. § 2401(b):
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A tort claim against the United States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years after such claim accrues or
unless action is begun within six months after the date of mailing, by certified or
registered mail, of notice of final denial of the claim by the agency to which it was
presented.
Here, the parties agree that the “appropriate Federal agency” was the United States General
Services Administration. Plaintiff, however, never served a claim on the GSA, and instead only
on the United States Secret Service. Relying on a baseless reading of Odin v. United States, 656
F.2d 798 (D.C. Cir. 1981) and a particular regulation, Plaintiff insists that this should be enough,
reading “appropriate Federal agency” to mean “any Federal agency.” Needless to say, neither
statute nor caselaw may rewrite a statute, and Odin unsurprisingly does not stand for the
proposition Plaintiff claims it does.
In Odin, the Court of Appeals held that, for the purposes of 28 U.S.C. § 2675(a), “‘a final
agency action’ occurs when the agency has taken the final step necessary to settle [a] claim.” Id.
at 804. This holding, of course, has nothing to do with service of a claim upon the “appropriate
Federal agency.” In a footnote, Odin mentions that, pursuant to 28 C.F.R. § 14.2(a), a federal
agency “shall transfer [a claim] forthwith to the appropriate agency” if the claim is first
“presented to the wrong Federal agency.” Id. at 803 n.22. From this footnote, Defendant
maintains that it is the settled law of this Circuit that a plaintiff properly serves a notice of claim
so long as it is delivered to some federal agency. Plaintiff misconstrues the regulation on which
she relies. In fact, the regulation provides that “[a] claim shall be presented as required by 28
U.S.C. [§] 2401(b) as of the date it is received by the appropriate agency.” 28 C.F.R. §
14.2(b)(1) (emphasis added). Whatever duty the Secret Service may have had here to forward
Plaintiff’s claim, even the regulation on which Plaintiff relies makes clear section 2401(b)’s plain
meaning: the “appropriate Federal agency” must receive a plaintiff’s claim within two years
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from when a plaintiff’s claim accrues.
Plaintiff does not meaningfully contest the United States’ view on when Plaintiff’s claim
accrued, but the Court shall pause to address the issue. Plaintiff asserts but one claim of
vehicular negligence. A claim of vehicular negligence cognizable through the FTCA accrues at
the time of the collision. E.g., Hardie v. United States v. United States, 501 F. Supp. 3d 152, 158
(E.D.N.Y. 2020). Because, pursuant to section 2401(b), Plaintiff must have submitted her claim
to GSA within two years of the accident, February 3, 2020, section 2401(b)’s limitations period
ran on February 3, 2022. To date, as the claim has not been presented to the GSA, this action as
against the United States is time-barred. As such, the Court shall dismiss the United States as a
defendant.
B. Motion for Sanctions
Plaintiff’s motion for sanctions appears to argue that the United States should be
sanctioned for: (1) moving to dismiss for an “improper purpose,” Fed. R. Civ. P. 11(b)(1); (2)
moving to dismiss based on “legal contentions that are not warranted by existing law,” Fed. R.
Civ. P. 11(b)(2); and (3), moving to dismiss based on “factual contentions that are neither
warranted by the evidence nor reasonably based on belief or a lack of information,” Fed. Civ. P.
11(b)(4). Sanctions Mot. at 4. Each of these invocations of Rule 11 seem to revolve around the
central argument that the United States “aver[ing] that sending the FTCA claim to the wrong
federal agency is grounds for dismissal[ is] in contrast to the law and well settled policies of both
the courts and the Federal government.” Id. As explained above, it is not the United States that
“failed to make a reasonable inquiry into the facts or law before filing,” as Plaintiff charges, but
counsel for Plaintiff himself.
As noted above, the regulation on which Plaintiff relies reaffirms the plain text of section
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2401(b): “A tort claim against the United States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years after such claim accrues . . .”
(emphasis added). Supra at 6. Furthermore, as explained above, Odin does not remotely stand
for the proposition advanced by Plaintiff. Id. at 6-7. Finally, Plaintiff’s failure to notify counsel
for Defendant in advance of filing is another reason to deny Plaintiff’s Rule 11 motion. See
TJGEM LLC v. Repub. of Ghana, 26 F. Supp. 3d 1, 15 (D.D.C. 2013). For these reasons, the
Court must deny Plaintiff’s motion for sanctions as procedurally improper and devoid of legal
basis on the merits. Finally, because Plaintiff’s motion for sanctions is so utterly meritless, the
Court shall exercise its discretion to award the United States costs pursuant to Rule 11(c)(2).
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the United States’ [15] Motion to Dismiss
and DENIES Plaintiff’s [17] Motion for Sanctions. The Court also GRANTS the United States’
request for costs pursuant to Federal Rule of Civil Procedure 11(c)(2), pending the submission of
an accounting due on or before November 4, 2022. The Court shall defer dismissing the United
States as a defendant until the resolution of that accounting.
Dated: October 24, 2022
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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