United States District Court, E.D. Virginia, Norfolk Division
JOSHUA E. FRANKEL, Plaintiff,
UNITED STATES OF AMERICA, and JAVEN EVONNE DAVIS, solely in her capacity of an uninsured driver pursuant to Virginia Code § 38.2-2206, as amended, Defendants.
OPINION AND ORDER
S. DAVIS CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion to dismiss for lack of
subject matter jurisdiction, filed by the United States of
America ("United States" or "the
Government"), and Javen Evonne Davis ("Davis,"
and collectively with the United States,
"Defendants"), pursuant to Federal Rule of Civil
Procedure 12(b)(1). ECF No. 6. Plaintiff opposes dismissal,
asserting that this action was properly filed in this Court.
FACTUAL AND PROCEDURAL HISTORY
March 31, 2015, at approximately 7:37 a.m., Plaintiff, an
employee of the United States Navy, was injured by a vehicle
negligently operated by Davis, who is also an employee of the
Navy. Compl. ¶¶ 17-18, ECF No. 1. Plaintiff was
struck by Davis' vehicle while he was walking in a
crosswalk within Naval Station Norfolk, a military base in
Norfolk, Virginia. Id. Plaintiff asserts that he was
"on his way to the gym on his own volition" when he
was hit, and that he was "not under any orders
associated with his employment with the Navy," was not
''on an official Navy assignment," and "was
not on duty." Id. ¶ 19.
addition to, and/or in contradiction to, such facts,
Defendants support their dismissal motion by providing a
sworn affidavit from Suly Diaz, Plaintiff's Navy
Supervisor. ECF No. 7-1, ¶ 2. Diaz asserts, under
oath, that on the morning of the accident, Plaintiff was
required to report to the on-base sports center to
participate in mandatory physical training scheduled to begin
at 7:30 a.m. Id. ¶ 5. Diaz further indicates
that such training was "the beginning of the
workday" for Plaintiff. Id. Although
Plaintiff's responsive brief denies that he was on his
way to mandatory physical training, Plaintiff provides no
affidavit or other evidence to support such contrary factual
statement made in his brief. ECF No. 11, at 4; see
Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009)
("An attorney's unsworn statements in a brief are
addition to the disagreement over Plaintiff's reason for
going to the on-base gym, the parties' briefs dispute the
degree to which Naval Station Norfolk is open to the public.
Defendants advance two additional sworn affidavits seeking to
demonstrate that: (1) access to the base was restricted to
those with an employment, familial, or other connection to
the military, ECF No. 7-2; and (2) the gym that Plaintiff was
walking to on the day of the accident is located on the base,
is operated for the benefit of servicemembers, and may only
be patronized by military personnel and other
authorized individuals, ECF No. 7-3. Plaintiff does
not counter such affidavits with any evidence, but again
advances unsworn assertions referencing the vast number of
*civilians" that have daily access to the base. ECF No.
11, at 4.
unsuccessfully pursued an administrative claim with the Navy
for his injuries resulting from the accident, and he
thereafter filed the instant action in this Court. Compl.
¶ 15-16. In an apparent effort to recover damages
through Plaintiff's "uninsured motorist" auto
insurance coverage, Plaintiff's lawsuit names both the
United States and Davis as defendants. ECF No. 1.
subsequently moved to dismiss this case on jurisdictional
grounds, claiming that: (1) the suit cannot proceed against
Davis based on this Court's ruling in a prior federal
case filed by Plaintiff; and (2) that the case cannot proceed
against the United States due to the doctrine of sovereign
immunity. ECF No. 7. Defendants further argue that an
uninsured motorist claim cannot proceed because Va. Code
§ 38.2-2206(F) requires that a Plaintiff first
secure a judgment against the owner or operator of the
uninsured vehicle, and here, Plaintiff cannot obtain a
judgment against either Defendant. ECF No. 7.
STANDARD OF REVIEW
party asserting subject matter jurisdiction bears the burden
of proving that such jurisdiction exists. Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). When an
individual sues the United States for damages, he or she also
bears the burden to demonstrate that the Government
unequivocally waived its sovereign immunity. Williams v.
United States, 50 F.3d 299, 304 (4th Cir. 1995); see
Anderson v. United States, 669 F.3d 161, 164 (4th Cir.
2011) ("Where the United States has not waived its
sovereign immunity, a plaintiff's claim against the
United States should be dismissed for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure
matter jurisdiction may be challenged facially or factually.
Adams, 697 F.2d at 1219. A facial challenge contends
that a "complaint simply fails to allege facts upon
which subject matter jurisdiction can be based."
Id. In ruling on such a challenge, the court assumes
that all facts alleged in the complaint are true.
Id. In contrast, a factual challenge to subject
matter jurisdiction relies on the assertion that "the
jurisdictional allegations of the complaint [a]re not
true." Id. In ruling on a factual challenge
that is not intertwined with the merits of the
underlying action, the court is "free to weigh the
evidence and satisfy itself as to the existence of its power
to hear the case." Williams, 50 F.3d at 304
(quoting Mortensen v. First Fed. Sav. and Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)); see
U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th
Cir. 2009) ("Unless the jurisdictional facts are
intertwined with the facts central to the merits of the
dispute, the district court may . . . resolve the
jurisdictional facts in dispute by considering evidence
outside the pleadings, such as affidavits."). When
evaluating the jurisdictional evidence, the court may
consider ''evidence by affidavit, depositions or live
testimony." Adams, 697 F.2d at 1219; see Al
Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 154
(4th Cir. 2016) ("The district court is authorized to
resolve factual disputes in evaluating its subject matter