Phillip v. Schelhorn et.al

Opinion

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN

HAMLET R. PHILLIP, JR.[,] and STEPHANIE ) PHILLIP, ) ) Plaintiffs, ) ) Case No. 3:19-cv-0072 v. ) ) RHETT J. SCHELHORN and UNITED ) STATES OF AMERICA, ) ) Defendants. ) )

ORDER BEFORE THE COURT is Defendant United States’ Motion to Dismiss (“Mot.”) (ECF see No. 39) and memorandum in support thereof (ECF No. 40), filed October 5, 2020. Plaintiffs filed an opposition to the motion ( ECF No. 69) on March 16, 2021. On March 30, 2021, the United States filed Defendant United States’ Motion to Strike Plaintiffs’ Opposition to Motion to Dismiss and Reply to Plaintiffs’ Opposition (ECF No. 72). For the reasons stated below, the Court will grant the motion to dismI.iss.

Plaintiffs allege that “[o]n or about October 10, 2017, at approximately 8:48 p.m. in St. Thomas, U.S. Virgin Islands, . . . Defendant,[sic] Schelhorn . . . drove the vehicle [he was operating] out of his lane of travel and into the . . . vehicle owned and operated by Plaintiff,[sic] Hamlet Phillip, Jr. . . .” First Amended Complaint (“FAC”) (ECF No. 33) at ¶ 5. Plaintiffs also allege that, at the time of the alleged collision, Schelhorn “was operating a vehicle either,[sic] within the course and of his employment/agency with Defendant,[sic] Id USA . . . [or] outside the course and scope of his employment/agency and, therefore, is Id personally liable” for the collision. . Plaintiffs further allege that Plaintiff Hamlet Phillip, Jr., sustained physical injuries and damage to his vehicle as a result of the alleged collision. . at Id ¶ 6. Plaintiff Stephanie Phillip sues Defendants for “loss of consortium and services” as the wife of Plaintiff Hamlet Phillip, Jr. . at 4, ¶¶ 2, 11. Case No. 3:19-cv-0072 O rder Page 2 of 7 In addition to the common law negligence claim against Defendant Schelhorn in 1 Count I and Plaintiff Stephanie Phillip’s loss of consortium claim in Count II, the FAC contains two specific counts against the United States: Count III – Respondeat Superior and Count IV – Negligent Entrustment. The United States moves to dismiss the “complaint with prejudice for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1).” Mot. at 1. II. Federal district courts are courts of limited jurisdiction. A federal district court can See, e.g., DeLagarde v. Tours VI exercise subject matter jurisdiction based upon federal question jurisdiction, diversity Ltd. jurisdiction, and/or admiralty/maritime jurisdiction only. must , Case No. 3:20-cv-0093, 2022 U.S. Dist. LEXIS 34405, at *6-7 (D.V.I. Feb. 28, 2022); 28 U.S.C. §§ 1331-33. Thus, if the Court “lacks subject-matter jurisdiction, the [C]ourt dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis added). In the matter at bar, Plaintiffs 2 assert that the Court “has jurisdiction pursuant to 28 U.S.C. § 1332, due to the Defendants being a Federal [sic] governmental employee and the Federal [sic] agency [sic] Government, respectively.” FAC at ¶ 1. Defendant United States contends that the Court lacks subject et seq. matter jurisdiction based upon the facts that 1.) it is liable under the Federal Tort Claims Act (FTCA), found at 28 U.S.C. §§ 2671 , for the negligent acts of a governmental employee only if those acts occurred “while acting within the scope of his office or employment,” 28 U.S.C. § 1346(b)(1), and 2.) Defendant Schelhorn was not acting within the scope of his employment at the time and location of the alleged collision. Defendant United States of

1 To the extent this count alleges a common law negligesneece claim iangfarianst Defendant Schelhorn, individually, acting outside the scope of his employment, in the face of the Court’s finding that it lacks federal question jurisdiction and, in the absence of diversity jurisdiction ( Note 2, ), the Court lacks jurisdiction over this 2count, and it will be dismissed. Section 1332 of Title 28 of the United States Code governs diversity of citizenship jurisdiction, not federal question, which is found in Section 1331. The Court believes this citation to be a typographical error because of the clarifying clause that follows the citation and the lack of any allegation in the FAC concerning an alleged amount in controversy. In the event Plaintiffs attempt to allege diversity juriSsedei,c eti.go.n, ,H saurcphs tbears ivs. fFoBrI jurisdiction fails because of the absence of any allegation regarding the amount in controversy and because the United States is not considered as a citizen for purposes of diversity jurisdiction. , 8:22CV97, 2022 U.S. Dist. LEXIS 126932, at *3 (D. Neb. July 18, 2022) (“[T]he United States and its agencies are Case No. 3:19-cv-0072 O rder Page 3 of 7 America’s Memorandum in Support of Motion to Dismiss (“Mem.”) (ECF No. 40) at 4-5. Upon review of the FAC and the record herein and for the reasons stated below, the Court will grant the motion to dismiss for lack of jurisdiction, albeit for reasons other than those III. advocated by the United States. respondeat superior Plaintiffs allege claims of and negligent entrustment against the 3 United States. It is axiomatic that the United States v. Bormes [d]octrine of sovereign immunity shields the United States from suit where it has not "unequivocally expressed" conseSnet et oT breea ssuuerder. of N.J. v. U.S. Dep't of, 5T6re8a Usu.Sr.y 6, 10, 133 S. Ct. 12, 184 L. Ed. 2d 317 (2012). Sovereign immunity goes directly to subject matter jurisdiction. United States v. Mitchell , 684 F.3d 382, 395 (3d Cir. 2012) ("Without a waiver of sovereign immunity, a court is without subject matter jurisdiction."); , 463 U.S. 206, 212, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that Honore v. U.S. Dep’t of Agriculture the existence of consent is a prerequisite for jurisdiction."). , Civil Action No. 2016-0055, 2022 U.S. Dist. LEXIS 178710, et. at *8 (D.V.I. Sept. 30, 2022). The United States has waived immunity in certain circumstances seq for certain tort claims by way of the Federal Tort Claims Act, codified at 28 U.S.C. §§ 2671 4 . These claims are exclusively within the jurisdiction of the federal district courts under 5 28 U.S.C. § 1346(b). Although Plaintiffs neither cite nor reference the FTCA in their FAC, the act "’provides the exclusive remedy for nonconstitutional torts based on the negligent or 3 See The United States’ Memorandum ipna Ssusipmpo rt of Motion to Dismiss (as well as its reply to Plaintiffs’ opposition) is silent regarding Plaintiffs’ claim of negligent entrustment asserted directly against the United States. M4 em. (ECF No. 40) and ECF No. 72 . Under the FTCA, “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be l5iable for interest prior to judgment or for punitive damages. . . .” 28 U.S.C. § 2674. Section 1346(b)(1) provides: Subject to the provisions of chapter 171 of this title [28 USCS §§ 2671 et seq.], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. Case No. 3:19-cv-0072 O rder Page 4 of 7 Chebbani v. United States Dep't of Agric wrongful act or omission of any employee of the Government while acting within the scope Couden v. of his office or employment.’" ., Civil No. 5:21-cv- Duffy see also 04298-JMG, 2023 U.S. Dist. LEXIS 183395, *57 (E.D. Pa. Oct. 11, 2023) (quoting Moneyham v. United States , 446 F.3d 483, 498, n.10 (3d Cir. 2006) (citing 28 U.S.C. § 2679(b)(1))); , Civil Action No. 3:17-cv-01798, 2019 U.S. Dist. LEXIS 153152, at See *9 (M.D. Pa. Sept. 6, 2019) (“The FTCA is the exclusive waiver of sovereign immunity for id. actions sounding in tort against the United States and its employees. 28 U.S.C. 6 1346; § 2679(b)). Thus, the Court turns to the requirements of the FTCA. It is true that the United States may be held liable for certain common law torts under the FTCA. It is also true that before filing such a civil suit against the United States, a plaintiff must exhaust his administrative remedies. Section 2675 of Title 28 of the United States Code shall not provides, in part: An action be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or udnelaetshs cthaeu sceldai mbya ntht es hnaelgl lihgaevnet foirrs wt rporensgefnutle adc tt hoer colmaiimss itoon t ohfe aanpyp reompprilaotyee eF eodf etrhael Gagoevnecryn manedn ht iws chlialeim a csthinagll whaitvhei bne tehne fsincoapllye doef nhiiesd o bffyi cteh eo ar geemnpcylo iynm wernitti,n g and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. . . . 28 U.S.C. § 2675(a) (emphasis added). Our sister court for the Western District of Pennsylvania, in a medical negligence action against the United States, recently stated, “When the United States is a defendant in a tort claim lawsuit (as it is here), a plaintiff must McCann v. United States exhaust all administrative remedies before instituting a claim against the United States. 28 see also, e.g., Weir v. FBI U.S.C. § 2675(a).” , 23cv1301, 2023 U.S. Dist. LEXIS 201887, at *9 (W.D. Pa. Nov. 9, 2023); , Civil Action No. 2:23-439, 2023 U.S. Dist. LEXIS 155394, at *4 (W.D. Pa. Sept. 1, 2023) (where the court states that the "FTCA bars McNeil v. United States Weir claimants from bringing suit in federal court until they have exhausted their administrative remedies") (citing , 508 U.S. 106, 113 (1993))). The court further

See Case No. 3:19-cv-0072 O rder Page 5 of 7 Weir observes: “The Court of Appeals has held that a complaint filed prior to the time that Accolla v. United States Gov't administrative remedies have been exhausted is premature and must be dismissed.” , 2023 U.S. Dist. LEXIS 155394, at *4 (citing , 369 F. App'x 408, 410 (3d Cir. 2010) (dismissing complaint as premature because it was filed prior to exhaustion being completed; subsequent completion of exhaustion does not cure the defect) See, e.g., Priovolos v. FBI (other citation omitted)). Moreover, exhaustion of administrative remedies is jurisdictional and not waivable. , 686 F. App’x 150, 152 (3d Cir. 2017) (“Federal courts cannot assume jurisdiction over FTCA claims until the plaintiff has first presented his White-Squire claim to the appropriate federal agency and the claim has been denied. 28 U.S.C. § 2675(a) . v. U.S. Postal Serv. Roma v. United States . . This exhaustion requirement ‘is jurisdictional and cannot be waived.’ (citing Moneyham v. United States , 592 F.3d 453, 457 (3d Cir. 2010) and quoting , 344 F.3d 352, 362 (3d Cir. 2003)); , Civil Action No. 3:17-cv-01798, 2019 U.S. Dist. LEXIS 153152, at *9 (M.D. Pa. Sept. 6, 2019) (“The FTCA is the exclusive See id waiver of sovereign immunity for actions sounding in tort against the United States and its Dilg v. U.S. Postal Serv. employees. 28 U.S.C. § 1346; . § 2679(b). ‘[S]trict adherence to the terms and requirement of the FTCA is jurisd ictional and cannot be waived.’ , 635 F. Supp. 406, 407 (D.N.J. 1986).”). See The record shows that Plaintiff Hamlet Phillip, Jr., filed an administrative tort claim with Western Area Power Administration (“WAPA”) on or about July 9, 2019. ECF No. 7 ee 40-3. Plaintiffs initiated this action by the filing of their original complaint with the Court on September 13, 2019. S ECF No. 1. The record is devoid of any evidence of a written

7 The Court notes that the administrative claim filed by Plaintiff Hamlet Phillip, Jr., names only Hamlet Phillip, Jr., as a claimant and describes only his injuries and the damage amounts claimed therefor. Plaintiff Stephanie Phillip is not named, mentioned, or alluded to anywhere in the said claim. Because the United States did not receive notice of Stephanie Phillip’s claim for loss of consortium by way oSf ethe,e e c.gla., iDmia fwileadr ab yv. HUanmiteledt S Pthatilelsip and the record is devoid of any evidence that Stephanie Phillip filed a separate administrative claim, the Court finds that it lacks jurisdiction over Stephanie Phillip’s loss of consortium claim. , Civil Action No. 18-3520, 2019 U.S. Dist. LEXIS 57822, at *6 (E.D. Pa. Apr. 2, 2M01a9n)k o(“ vB. eUcnaiutesde Sat laotsess of consortium claim is a separate and distinct cause of action, courts have held that the party asserting a loss of consortium claim must independently satisfy the FTCA's notice requirement.” (citing , 830 F.2d 831, 840 (8th Cir. 1987) (dismissing a wife's loss of consortium claim because her husband's administrative claim did not notify the Government that she was asserting a loss of consortium claSieme or states uthprea amount of any Case No. 3:19-cv-0072 O rder Page 6 of 7 8 denial of Plaintiff Hamlet Phillip, Jr.’s administrative claim and/or the date of such denial. Moreover, the complaint in this matter was filed less than six months after the administrative claim was submitted. Absent any proof that Plaintiffs completely exhausted their administrative remedies prior to filing their complaint in the above-captioned matter, the See, e.g., Hoffenberg v. Provost Court finds that it does not have jurisdiction over this matter and will grant the motion to 9 dismiss. , 154 F. App’x 307, 310 (3d Cir. 2005) (where the appellate court noted that the “District Court dismissed Hoffenberg's FTCA claim as See unexhausted, as this claim was still pending before the BOP when Hoffenberg filed this suit in the District Court. 28 U.S.C. § 2675(a)”). In the event, however, Plaintiffs can demonstrate that they completely exhausted their administrative remedies prior to Livingstone v. U-Haul I1n0t'l September 13, 2019, the Court will allow Plaintiffs to file an amended complaint. , No. 21-2131, 2022 U.S. App. LEXIS 3821, at *2 (3d Cir. Feb. 11, 2022) (where the court declares, ”We have held that inadequate complaints should be dismissed without granting leave to amend only if amendment would be inequitable or futile," Grayson v. Mayview S tate Hosp., 293 F.3d 103, 106 (3d Cir. 2002), and the same rules see 8 While the United States filed a denial of scope of employment letter issued by WAPA, ECF No. 40-1, it is not apparent from the face of the letter that it constitutes a written denial of Plaintiff Hamlet Phillip, Jr.’s administrative claim. If this letter qualifies as the written denial of the administrative claim, then, it is without question that Plaintiffs filed this proceeding prior to exhausting their administrative remedies and the Court l9acks subject matter jurisdiction. Nowhere in the complaint or amended complaint do Plaintiffs allege exhaustion of administrative remedies. NIsoara cd vo. PCNlaNin Itnifcfs. address the issue in any other filings. It is well established that “[i]n responding to a KReuhler 1P2ac(bka)(g1e)s ,m Inoct.i ovn. F tiod edlicsomr,i sIns,c p.laintiff bears the burden of persuasion in establishing subject matter jurisdiction.” , C.A. No. 23-247 (MN), 2023 U.S. Dist. LEXIS 50241Is, aaat c*4 (D. Del. Mar. 24, 2023) (citing F.D.I.C. v. Meyer , 926 F.2d 1406, 1409 (3d Cir. 1991)). Moreover, “[t]o sue the sovereign, plaintiff's allegations must invoke a valid waiver of sovereign immunity.” , 2023 U.S. Dist. LEXIS 50241, at *5 (10citing , 510 U.S. 471, 475 (1994)). Plaintiffs filed their First Amended Complaint on August 18, 2020. While this date is beyond six months from the date of filing the administrative claim, such amended complaint is not considered when determining exhaustion of administrative remedies. The precedent established in this judicial circuit is that “[Zei]evrekne va. sUunbitseedq Suteantte samended complaint, filed after exhaustion of the administrative tort claim, does not cure the jHuorfifsednibcteirogn va.l Pinrfoivromsitty if the original complaint seeking tort damages was filed prior to exhaustion.” , Civil Action No. 3:CV-14-0350, 2016 U.S. Dist. LEXIS 37149, at *16 (M.D. Pa.H Moaffre. n2b2e, r2g016) (Zciietrinkge , 154 F. App’x 307, 310 (3d Cir. 2005) ("the date of the amended complaint cannot serve as the date the federal suit was 'instituted'")). Based upon the Third Circuit holding in , theM iller v. cUonuitretd c oSntcaltuedsed, “Thus, the Court is compelled to dismisRs oPmlaain tvi.f f'Usn FiTteCdA Sctlaaitmess for lack of jurisdiction because PlaintiffR'so boirnigsoinna vl. cUonmitpelda iSntat twesas filed prior to the exhaustion of his administrative tort claim.” (citing , 517 F. App'x 62, 63 (3d Cir. 2013); , 344 F.3d 352, 362 (3d Cir. Case No. 3:19-cv-0072 O rder Page 7 of 7 apply when the deficiency concerns the jurisdictional allegations . . . .” (other citations omitted)). IV. Having reviewed the United States’ motion to dismiss and having considered the premises therein, the Court will grant the motion, but, as explained hereinabove, bases its dismissal of the above-captioned matter for lack of subject matter jurisdiction upon PlaintifOfsR’ fDaiEluRrEeD to exhaust their administrative remedies. Accordingly, it is hereby GRANTED that Defendant United States’ Motion to Dismiss, (ECF No. 39), is ORD oEnR oEtDher grounds; it is further DISMISSED WITHOUT PREJUDICE that the First Amended Complaint, (ECF No. 33), is ORDE; iRt EisD further that, in the event Plaintnifof sl actheoro tshea tno aAmperinld 3 t,h 2e0ir2 c4o mplaint, they shall file with thOe RCoDuErRt EsuDch amended complaint ;it is further no late rt hthata Dn eAfepnrdila 1n7ts, 2sh0a2l4l file answers or otherwise respond to any amended complaOinRt DERED ; and itM isO fOurTther that all pending motions are . Dated: / Robert A. Molloy ROBERT A. MOLLOY March 19, 202 4 Csh/i ef Judge