United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge.
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.
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.
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.
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. Id. Sova was finally
arrested after Sharrer initiated state criminal proceedings.
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.
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
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).
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. §
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 ...