United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief United States District Judge.
matter comes before the court on defendant the United States
of America's ("United States") motion to
dismiss, ECF No. 60, plaintiff Mary Lee Sharrer's
("Sharrer") Amended Complaint, ECF No. 53. Sharrer
responded to the United States' motion on May 6, 2019.
ECF No. 65. The United States replied on May 13, 2019. ECF
No. 66. For the reasons below, the court will
GRANT the United States' motion and
DISMISS with prejudice all counts brought
against the United States.
court exercised supplemental jurisdiction over Sharrer's
claims against defendant Walter Sova ("Sova")
dependent on its jurisdiction over the claims against the,
United States, the court will also DISMISS
Sharrer's claims against Sova. These claims must be
brought in state court, should Coffey choose to do so.
works for KGS, Inc., a contract mail delivery service that
delivers for the United States Postal Service
("USPS"). ECF No. 53, at 2-3. Sharrer picks up mail
at the USPS main post office in Roanoke and delivers it to
various locations in Virginia. Id. Sova, the only
individual named by the Amended Complaint as a defendant, is
a USPS employee who worked at the Roanoke Main Branch where
Sharrer picks up the mail. Id.
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. 53, at 4. 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
now seeks to hold the United States and USPS liable for the
assaults and batteries committed by Sova through the Federal
Tort Claims Act, 28 U.S.C. §§ 2671 -2680.
("FTCA"), on the basis of respondeat
superior liability and a theory of negligent retention.
ECF No. 53, at 5-7. Sharrer filed her original Complaint on
July 23, 2018. ECF No. 1. After the court granted die United
States' first motion to dismiss, ECF No. 52, Sharrer
filed her Amended Complaint on April 8, 2019, ECF No. 53.
Count One 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 FTCA or under the theory of respondeat
superior or otherwise under Virginia law."
Id. at 5-6. Count Two alleges negligent retention
against the United States and USPS pursuant to the FTCA.
Id. at 6. In Count Two, Sharrer claims that the
United States and USPS knew or should have known through the
use of ordinary care of Sova's propensities and
negligently placed him in a position where he could have
access to potential victims. Id.
April 24, the United States filed a motion to substitute the
United States as a defendant for USPS. ECF No. 58. This
motion was granted. ECF No. 64.
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.'" Id. (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
Or. 2012) (holding the court "need not accept legal
conclusions couched as facts or unwarranted inferences,
unreasonable conclusions, or arguments") (internal
quotation marks omitted).
changes Sharrer has made to her complaint do not alter the
court's prior ruling. The only meaningful changes Sharrer
has made are listed below:
(1) On page 5 of the Amended Complaint, Sharrer adds that a
factual allegation that -"the United States and the
United States Postal Service had a zero tolerance policy
which prohibited Sova and other federal employees from
sexually harassing and.. .assaulting and battering female
employees of the federal government....as well as other women
with whom federal ...