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Cubias v. United States

United States District Court, E.D. North Carolina, Western Division

September 23, 2019




         This matter is before the court on defendant’s motion to dismiss (DE 6) for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The issues raised have been fully briefed by the parties, and in this posture the motion is ripe for ruling. For the following reasons, the motion is granted.


         Plaintiff commenced this personal injury action on September 27, 2018, in Cumberland County Superior Court against an employee of the United States Department of Army (“Army”), formerly-named defendant Terraine A. Elliott (“Elliott”). Plaintiff asserts Elliot was negligent in operating his vehicle, resulting in a collision with plaintiff on Fort Bragg military base, in Cumberland County, North Carolina. Plaintiff seeks compensatory damages, interest, fees, and costs.

         Defendant removed this action to this court on February 20, 2019, asserting jurisdiction on the ground that the United States was the proper defendant in this action because Elliott was acting within the scope of his employment as an employee and member of the Army. In conjunction with its notice of removal, defendant filed a certification of scope of employment and substitution of the United States as the only party defendant.

         Defendant filed the instant motion to dismiss for lack of subject matter jurisdiction on February 27, 2019. Defendant argues plaintiff’s claims are barred by the Feres[2] doctrine of intraservice immunity for claims arising under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, and for failure to exchaust administrative remedies. In support of its motion, defendant relies upon a declaration of Michael L. Kanabrocki (“Kanabrocki”), an attorney with the Army, and a declaration of Connie M. McConahy (“McConahy”), acting chief of operations and records branch for the Army Claims Service. Plaintiff responded in opposition, and defendant replied on March 20, 2019.


         The facts alleged in the complaint, as well as the undisputed jurisdictional facts, may be summarized as follows.

         “[O]n or about January 17, 2017, at approximately 06:20 a.m., [p]laintiff was a pedestrian jogging west on the sidewalk of Longstreet Road on Fort Bragg, Cumberland County, North Carolina.” (Compl. ¶ 3). Elliott, “at the time of the events alleged [in the complaint], was operating a 2011 BMW 328i and stopped at a stop sign on Bigler Street, on Fort Bragg.” (Id. ¶ 4). Elliott “moved forward from the stopped position to make a left turn onto Longstreet Road and failed to yield the right of way to [p]laintiff, striking [p]laintiff’s right side, ” which “impact threw [p]laintiff on the hood of [Elliott’s] vehicle while [Elliott] continued to make a left turn.” (Id. ¶ 5). “Plaintiff was thrown from the hood of [Elliott’s] vehicle onto the pavement, ” and “[p]laintiff had not opportunity to avoid the collision.” (Id.). As a result of the collision, plaintiff “suffered severe and painful injuries, including but not limited to a spinal fracture, lower back pain, right knee pain and stiffness, left hip pain, and multiple abrasions.” (Id. ¶ 8).

         On January 17, 2017, plaintiff was an active-duty service member, Sergeant First Class, assigned to Womack Army Medical Center at Fort Bragg. (Kanabrocki Decl. ¶ 2). That same date, defendant was an active-duty service member, Specialist, assigned to 82nd Airborne Division at Fort Bragg. (Id. ¶ 3). “[W]hen the accident occurred, neither [plaintiff] nor [Elliott] were on furlough or in a leave status, and both were performing official duties.” (Id. ¶ 4).


         A. Standard of Review

         A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction. Such motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant raises a “facial challenge[] to standing that do[es] not dispute the jurisdictional facts alleged in the complaint, ” the court accepts “the facts of the complaint as true as [the court] would in context of a Rule 12(b)(6) challenge.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018). When a defendant challenges the factual predicate of subject matter jurisdiction, a court “is to regard the pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” R ...

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