United States District Court, E.D. North Carolina, Western Division
JAMES C. FOX, District Judge.
This matter is before the court on Defendant's Motion to Dismiss [DE-9]. Plaintiff filed a Memorandum in Opposition to the Motion to Dismiss [DE-12], to which Defendant filed a Reply [DE-13]. This matter is ripe for disposition. For the reasons more fully stated below, the Motion to Dismiss is ALLOWED.
I. STATEMENT OF THE CASE
Plaintiff ("Greene") filed the instant claim under the Federal Torts Claim Act, 28 U.S.C. § 2671, et seq., on April 24, 2014 [DE-2]. She argues that the actions of federal government employees on several occasions give rise to a claim for "negligent failure to prosecute." Compl. [DE-2] ¶¶ 32-38.
On January 5, 2007, Greene filed a complaint in the United States District Court for the Western District of North Carolina ("WDNC") against her former employer, Omni Visions, Inc. ("Omni"), pursuant to the qui tam provisions of the False Claims Act. Pl.'s Opp. to Mot. to Dismiss [DE-12] at 2; Mem. in Support of Def.'s Mot. to Dismiss, Ex. 1 [DE-10-1]. She alleged that Omni had engaged in fraudulent billing practices. Compl. ¶ 17-18. On August 29, 2007, the U.S. Attorney for the WDNC declined to intervene in the action, and Greene subsequently took a voluntary dismissal. Mem. in Support of Def.'s Mot. to Dismiss, Ex. 1 [DE-10-1]. She claims that Omni, along with other of her employers, terminated her employment in response to bringing the qui tam action. Compl. ¶ 20.
On March 26, 2009, Greene filed an administrative complaint against Omni with the U.S. Department of Labor ("DOL"), alleging that the company violated the whistleblower protections of the Sarbanes-Oxley Act. Mem. in Support of Def.'s Mot. to Dismiss, Ex. 2 [DE-10-2] at 1-3. An administrative law judge dismissed the case based on Greene's late filing, and the DOL's Administrative Review Board upheld the decision. Id. at 8. After the Fourth Circuit affirmed the dismissal (Case No. 11-1550), Greene filed a writ of certiorari seeking review by the United States Supreme Court. Mem. in Support of Def.'s Mot. to Dismiss, Ex. 3 [DE-10-3]. On March 15, 2012, the Solicitor General waived his right to respond to the petition, and the Supreme Court subsequently declined to review the case. Id.
Greene commenced an administrative tort claim against the DOL and the U.S. Department of Justice ("DOJ") on September 10, 2012, alleging negligent handling of her qui tam action and whistleblower appeal. Mem. in Support of Def.'s Mot. to Dismiss, Ex. 4 [DE-10-4]. Throughout the following year, Greene contacted the DOJ several times requesting updates on the status of her claim. Compl. ¶¶ 28-30. She received communications indicating that either no determination had been made or that no status report was available. Id. Greene, pursuant to 28 U.S.C. § 2675, deemed her claim to be constructively denied and filed this action. Id. ¶ 31.
Greene contends that Defendant ("the Government") "owed [her] a duty to protect her under the various federal whistleblower laws...." Compl. ¶ 33. She argues that the Government breached that duty by failing to 1) intervene in the qui tam action and prosecute Omni; 2) submit a waiver and respond to her petition for certiorari in the whistleblower action; and 3) make a timely determination regarding her tort claim. Id. ¶ 34. Greene alleges that this "negligent failure to prosecute" directly and proximately caused her reputational damage and emotional distress, and resulted in lost wages. Id. ¶¶ 37-38.
The Government asserts several defenses, including the statute of limitations and failure to state a claim upon which relief can be granted. Mem. in Support of Def.'s Mot. to Dismiss [DE-10] at 5-8.
A. Legal Standard
Defendants move to dismiss plaintiffs complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of showing that federal jurisdiction is appropriate. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). A district court should allow a Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans v. B.F Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (internal citation omitted). In considering a motion to dismiss based on Rule 12(b)(1), the court is "to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id.
Rule 12(b)(6) permits a court to dismiss an action for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A 12(b)(6) motion should only be granted if"it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, a complaint that proffers only "a formulaic recitation of the elements of a cause of action" with no "further factual enhancement" is insufficient. Bell At/. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007). To survive dismissal, a party must come forward with "enough facts to state a claim to relief that is plausible on its face." Id. at 548. The plausibility standard is met "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The court must accept as true all well-pleaded allegations and must draw all reasonable factual inferences in favor of the plaintiff. See Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005); Myan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
A court may consider documents not attached to a complaint without converting a Rule 12(b)(6) motion into a summary judgment motion when such documents are "integral to and explicitly relied on in the complaint and [where] the [plaintiff does] not challenge [the documents'] authenticity." Phillips v. LCI Intern., Inc., 190 F.3d 609, 618 (4th Cir. 1999). Defendants may attach such documents to a motion to dismiss without converting it into a summary judgment motion. Gasner v. Cnty ofDinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995) (allowing the defendant to attach a "pertinent document" to its motion to dismiss without converting the motion into one for summary judgment). Accordingly, the ...