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Sharrer v. United States

United States District Court, W.D. Virginia, Roanoke Division

March 26, 2019



          Michael F. Urbanski United States District Judge.

         This matter comes before the court on defendant the United States of America's (United States) motion to dismiss all claims against it and defendant United States Postal Service ("USPS") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), ECF No. 20, and defendant Walter Sova's ("Sova") motion to dismiss all claims against him under 12(b)(1), ECF No. 38. The United States filed its motion on October 29, 2018. Id. Plaintiff Mary Lee Sharrer ("Sharrer") responded on November 5, 2018. ECF No. 23. The United States replied on November 13, 2018. ECF No. 28. For the reasons explained below, the court GRANTS the United States' motion, ECF No. 20, and DISMISSES the complaint as it regards the United States and USPS, with leave to amend.

         Sova filed his motion to dismiss all claims under 12(b)(1) on November 30, 2018 for the reasons set forth in the United States' motion. ECF No. 38. Sharrer responded on December 3, 2018. ECF No. 40. For the reasons stated below, the court DENIES Sova's motion, ECF No. 38.


         Sharrer works for KGS, Inc., a contract mail delivery service that delivers for the USPS. ECF No. 1, at 3. Sharrer picks up mail at the USPS main post office in Roanoke and delivers it to various locations in Virginia. Id. Walter Sova ("Sova"), the only individual named as a defendant, is a USPS employee who worked at the Roanoke Main Branch where Sharrer picks up the mail. Id. Sharrer alleges that Sova sexually harassed, assaulted, and battered her during work hours. Id. Sharrer's complaint includes a number of specific incidents of physical and verbal harassment and sexual assaults and batteries. Id.

         Sharrer alleges that she repeatedly told Sova to stop and consistently reported his behavior to other USPS employees, starting in September 2016. ECF No. 1, at 5. She claims USPS refused to prevent Sova from interacting with her and that USPS managerial employees were aware of prior complaints of sexual harassment against Sova.[2] Id. Sova was finally arrested after Sharrer initiated state criminal proceedings. Id.

         Sharrer now seeks to hold the United States and USPS liable for the assaults and batteries committed by Sova on the basis of respondeat superior liability and a theory negligent retention. ECF No. 1, at 5-6. Sharrer filed her complaint on July 23, 2018, alleging two counts. Id. Count I alleges assault and battery not only against Sova, but against the United States and USPS, through Sova as their agent and employee. Id. at 5. This claim is brought under the theory of respondeat superior "or otherwise under Virginia law." Id. at 5-6. Count II alleges negligent retention against the United States and USPS pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 -2680. ("FTCA"). Li at 6. In Count II, Sharrer claims that die United States and USPS knew or should have known through die use of ordinary care of Sova's propensities and negligently placed him in a position where he could have access to potential victims. Id.


         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges a court's subject matter jurisdiction. Absent subject matter jurisdiction, a court must dismiss the action. Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 653 (4th Cir. 1999). Whether a plaintiff has standing to bring a cause of action "is generally associated with Civil Procedure Rule 12(b)(1) pertaining to subject matter jurisdiction." CGM. LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011). "That is because 'Article III gives federal courts jurisdiction only over cases and controversies,' and standing is 'an integral component of the case or controversy requirement.'" IcL (quoting Miller v. "Brown, 462 F.3d 312, 316 (4th Cir. 2006)). When a defendant raises substantive challenges to a court's jurisdiction under Rule 12(b)(1), the court need not accept the complaint's allegations as true and may consider facts outside the complaint to determine if it can properly exercise subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). At all times, "[t]he plaintiff has the burden of proving that subject matter jurisdiction exists." Evans, 166 F.3d at 647.

         Meanwhile, Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must plead sufficient facts "to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plaintiff establishes "facial plausibility" by pleading "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In ruling on a 12(b)(6) motion, the court must accept all well-pleaded allegations in the complaint as true and draw all reasonable factual inferences in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; see Wag More Dogs. LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (holding the court "need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments") (internal quotation marks omitted).


         Sharrer brings suit against Sova, the United States, and USPS, a federal agency. The United States is protected from suit by the doctrine of sovereign immunity, which "deprives a court of jurisdiction to hear a case" against its own sovereign. Global Mail Ltd. V. U.S. Postal Service, 142 F.3d 208, 210 (4th Cir. 1998). As a governmental entity, USPS is also "entitled to sovereign immunity unless Congress waives that immunity and authorizes consent to suit." Id. The FTCA provides for one such waiver, wherein "the district courts...shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... 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 die act or omission occurred." Durden v. United States, 736 F.3d 296, 301 (4th Cir. 2013); Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing 28 U.S.C. § 1346(b)(1)).

         Section 2680(h) of the FTCA, or "the intentional torts exception," specifically exempts certain enumerated intentional torts from this waiver of sovereign immunity. Levinv. U.S.,568 ...

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