Marsh v. Library of Congress

• Court: District Court, District of Columbia
• Decided: January 9, 2019
• Docket: Civil Action No. 2018-2593
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CLIFTON MARSH, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-2593 (RC) ) ) LIBRARY OF CONGRESS, ) ) Defendant. )

MEMORANDUM OPINION

Plaintiff, appearing pro se, filed suit in the Superior Court of the District of Columbia

against the Library of Congress, seeking a judgment of $2,500 for what appears to be the loss of

his personal property. See Compl., ECF No. 1-1. Defendant removed the case to this Court

pursuant to 28 U.S.C. §§ 1346(b), 1442(a)(1), and 1446. 1 Not. of Removal, ECF No. 1. Pending

before the Court is Defendant’s Motion to Dismiss under Federal Rule of Civil Procedure

12(b)(1), for lack of subject matter jurisdiction. ECF No. 3. Plaintiff, appearing pro se, has not

maintained a current address of record. Consequently, the order mailed to him advising of his

obligation to respond to defendant’s motion by December 31, 2018, ECF No. 4, was returned to

the Clerk’s Office as “undeliverable,” ECF No. 5. Regardless, the Court is required to dismiss

an action “at any time” it determines that subject matter jurisdiction is lacking. Fed. R. Civ. P.

12(h)(3). For the following reasons, defendant’s motion will be granted.

1 Section 1442(a)(1) states in relevant part that a “civil action . . . commenced in a State court [brought] against or directed to . . . [t]he United States or any agency thereof” may be removed to the United States district court “embracing the place where[ ] it is pending[.]” Section 1446 sets out the procedure for “a defendant . . . desiring to remove any civil action from a State court[.]” Id. para. (a). 1 Under the doctrine of sovereign immunity, “the United States may not be sued without its

consent and . . . the existence of consent is a prerequisite for jurisdiction.” United States v.

Mitchell, 463 U.S. 206, 212 (1983). The Federal Tort Claims Act (“FTCA”) waives the United

States’ immunity from a lawsuit for monetary damages based on certain tortious conduct, see 28

U.S.C. §§ 1346(b)(1), 2671-80, and its “remedies [are] exclusive,” id. § 2679(a). Therefore,

defendant has appropriately addressed plaintiff’s claim under the FTCA.

Defendant contends that jurisdiction is lacking over any FTCA claim because plaintiff

failed to exhaust his administrative remedies. 2 See Def.’s Mem. at 3-4. Before obtaining

judicial review under the FTCA, a plaintiff must “first present[ ] the claim to the appropriate

Federal agency” and wait until the claim is “finally denied by the agency in writing,” or allow six

months to pass without receiving a final denial “by certified or registered mail.” 28 U.S.C. §

2675(a). The Court of Appeals has “treated the FTCA’s requirement of filing an administrative

complaint with the appropriate agency prior to instituting an action as jurisdictional.” Simpkins

v. D.C. Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997) (citing McNeil v. United States, 508 U.S. 106,

113 (1993); Odin v. United States, 656 F.2d 798, 802 (D.C. Cir. 1981)). Defendant has no

record of receiving a claim “relating to any incident filed by Clifton Marsh.” Decl. of Elizabeth

Pugh ¶ 4, ECF No. 3-1. Therefore, this case will be dismissed without prejudice. See

Abdurrahman v. Engstrom, 168 Fed. App’x. 445, 445 (D.C. Cir. 2005) (per curiam) (affirming

2 Defendant argues that jurisdiction is lacking also because plaintiff has sued a federal agency instead of the United States. Def.’s Mem. at 3 (citing 28 U.S.C. § 2679(a)). But plaintiff did not bring this action in federal court, is accorded some leeway as a pro se party, Richardson v. U.S., 193 F.3d 545, 548 (D.C. Cir. 1999), and could move successfully to substitute the United States. See, e.g., Fed. R. Civ. P. 25 (“any misnomer not affecting the parties’ substantial rights must be disregarded”). Therefore, the Court declines defendant’s invitation to dismiss the complaint on this ground.

2 the district court’s dismissal of unexhausted FTCA claim “for lack of subject matter

jurisdiction”). A separate order accompanies this Memorandum Opinion.

________/s/____________ RUDOLPH CONTRERAS United States District Judge Date: January 9, 2019