UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NIKKI L. JOHNSTON, Plaintiff v. Civil Action No. 22-1284 (CKK)

UNITED STATES OF AMERICA, et al., Defendants.

MEMORANDUM OPINION (October 24, 2022) This Federal Tort Claims Act (“FTCA”) case is before the Court on Defendant United

States of America’s (“Defendant” or “United States”) [15] Motion to Dismiss and Plaintiff Nikki

L. Johnston’s (“Johnston”) [17] Motion for Sanctions. Plaintiff has sued the United States and

Defendant Whala B. Singh (“Singh”) for injuries sustained from a collision between a

government vehicle driven by Eric Radwick, an employee of the United States General Services

Administration (“GSA”), and a vehicle driven by Singh in which Johnston was a passenger.

Johnson alleges her injuries were a proximate and legal result of either Radwick’s negligence,

Singh’s negligence, or both. Because Johnston’s claim as against the United States is untimely,

and upon consideration of the pleadings, 1 the relevant legal authorities, and the entire record, the

1 This Memorandum Opinion focuses on the following documents: • Plaintiff’s Amended Complaint, ECF No. 9 (“Am. Compl.”); • Defendant United States of America’s Renewed Motion to Dismiss, ECF No. 15 (“MTD”); • Plaintiff’s Memorandum in Response to Defendant United States of America’s Motion to Dismiss, ECF No. 17 (“Pl.’s Opp.”); • Defendant United States of America’s Reply in Support of its Renewed Motion to Dismiss, ECF No. 20 (“Repl.”); • Plaintiff’s Motion for Rule 11 Sanctions Against the United States of America and Memorandum in Support, ECF No. 17 (“Sanctions Mot.”); and 1 Court shall GRANT the United States’ [15] Motion to Dismiss. The legal infirmities requiring

the United States’ dismissal as a defendant carry over to Plaintiff’s [17] Motion for Sanctions, so

it shall be DENIED. Additionally, because Plaintiff’s [17] Motion for Sanctions is so utterly

devoid of merit, the Court shall GRANT the United States’ request for costs incurred in

responding to the motion.

I. BACKGROUND

For the purposes of the motion to dismiss before it, the Court accepts as true the well-

pleaded allegations in Plaintiff’s Amended Complaint. The Court does “not accept as true,

however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts

alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S.,

(D.C. Cir. 2014).

The operative complaint’s allegations are quite sparse. Plaintiff, an Arkansan, was a

passenger in Singh’s car on February 3, 2020. Am. Compl. ¶¶ 1, 6. Singh’s vehicle “collided

with the vehicle being operated by Mr. Eric. Donald Radwick on behalf of the United States

Government, its employee acting in the course and scope of his employment.” Id. ¶ 6. Both

Singh and Radwick operated their cars negligently, injuring Plaintiff. Id. ¶ 8.

On March 22, 2022, Plaintiff filed her initial complaint in the Superior Court for the

District of Columbia. There, despite Plaintiff’s current acknowledgment that Radwick was

acting in the course of her employment at the time of the purportedly tortious actions, Plaintiff

sued Radwick (and Singh) in their personal capacities. ECF No. 1-1 at 2. By at least May 15,

2020, counsel for Plaintiff had concluded that Radwick was acting in the course of government

• Defendant United States of America’s Opposition to Plaintiff’s Motion for Rule 11 Sanctions (“Def.’s Opp.”). Plaintiff did not file a reply in support of her motion for sanctions. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 2 employment, filing a notice of claim pursuant to the FTCA. See ECF No. 26-3. Counsel for

Plaintiff evidently erroneously believed Radwick to be an employee of the United States Secret

Service based on what “the responding officer told Ms. Johnston.” Id.; Decl. of Nikki L.

Johnston, ECF No. 26-1 ¶ 3. Radwick is, in fact, an employee of an entirely different federal

agency, the GSA. Decl. of Eric D. Radwick, ECF No. 5-1 ¶ 1. Based on counsel for Plaintiff’s

erroneous belief, Plaintiff served a notice of claim upon the United States Secret Service, the

incorrect agency, effective January 31, 2022. ECF No. 5 at 1.

Because Radwick was acting in the course of his employment as a GSA employee,

Defendant United States removed the case from Superior Court to this court on May 3, 2022 by

filing its Westfall Certification, ECF No. 1-2. This Court now has removal jurisdiction as to the

United States pursuant to

(d) and as to Singh pursuant to

(a)

and 1447(c). Plaintiff effected service on Radwick and Singh on April 28, 2022. Affidavits of

Service, Johnston v. Singh, 2022 CA 001295 V (D.C. Sup. Ct. May 4, 2022). Plaintiff has not

yet served the United States. See Pl.’s Opp. at 4-5. Plaintiff filed her operative Amended

Complaint on June 6, 2022, and the United States’ motion to dismiss that complaint is now ripe.

Although Plaintiff alleges in her amended complaint that Radwick was an employee of the Secret

Service, Plaintiff now concedes that Radwick was a GSA employee at the time of the alleged

tortious conduct. ECF No. 26 at 1. Plaintiff also filed a Rule 11 motion for sanctions against the

United States on July 28, 2022, arguing, essentially, that the pending motion to dismiss is

frivolous. Mot. Sanctions at 4. In response, the United States argues that the sanctions motion

“is a waste of judicial time and resources because it completely lacks merit.” Def.’s Opp. at 8.

This motion is also ripe for resolution.

3 II. LEGAL STANDARDS

A. Motion to Dismiss for Lack of Jurisdiction

To survive a motion to dismiss pursuant to Rule 12(b)(1), plaintiff bears the burden of

establishing that the court has subject matter jurisdiction over its claim. See Moms Against

Mercury v. FDA,

(D.C. Cir. 2007). In determining whether there is

jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced

in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of

disputed facts.” Coal. for Underground Expansion v. Mineta,

(D.C. Cir.

2003) (citations omitted). “Although a court must accept as true all factual allegations contained

in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the factual

allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd.,

(D.D.C. 2007) (citations omitted). When considering whether to

dismiss for lack of jurisdiction, “a court may consider such materials outside the pleadings as it

deems appropriate to resolve the [jurisdictional] question.” Competitive Enter. Inst. v. EPA,

(D.D.C. 2016) (internal quotation marks omitted).

B. Motion to Dismiss for Ineffective Service

“In the absence of service of process (or waiver of service by the defendant), a court

ordinarily may not exercise power over a party the complaint names as a defendant.” Murphy

Bros. v. Michetti Pipe Stringing, Inc.,

(1999). Pursuant to Federal Rule of

Civil Procedure 12(b)(5), “if the plaintiff does not effect service on a defendant, then the

defendant may move to dismiss the complaint” without prejudice. Hilska v. Jones,

(D.D.C. 2003). The plaintiff “bears the burden of proving that she has effected proper

4 service.” Jouanny v. Embassy of France,

(D.D.C. 2016). Insufficient

service is a “fatal jurisdictional defect” and grounds for dismissal.

.

III. DISCUSSION

A. Motion to Dismiss

1. Service of Process

The United States first argues that this case should be dismissed without prejudice for

ineffective service. Citing nothing but the Federal Rules of Civil Procedure, the United States

argues that Plaintiff must serve the United States upon removal under the Westfall Act despite

Plaintiff having already effected service upon Radwick. Not so. Although Federal Rule of Civil

Procedure 4(i) normally governs service of process upon the United States, its instrumentalities,

and its employees, the Westfall Act obviates that requirement. Pursuant to

(c),

once an individual employee receives service of process, they must “deliver within such time

after date of service . . . all process served upon [them] . . . to [their] immediate supervisor” who

then must forward that service of process “to the United States attorney for the district embracing

the place wherein the proceeding is brought.” In other words, once the employee is effectively

served, they become “the agent for service of process for the United States.” McGowan v.

Williams,

(7th Cir. 1980). Because Radwick was effectively served in his

personal capacity, no further service of process was necessary when the United States removed

this case pursuant to

(d).

2. Statute of Limitations

More successfully, the United States argues that the Court should dismiss this matter with

prejudice because the statute of limitations has run on Plaintiff’s claim against the United States.

Pursuant to

(b):

5 A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

Here, the parties agree that the “appropriate Federal agency” was the United States General

Services Administration. Plaintiff, however, never served a claim on the GSA, and instead only

on the United States Secret Service. Relying on a baseless reading of Odin v. United States,

(D.C. Cir. 1981) and a particular regulation, Plaintiff insists that this should be enough,

reading “appropriate Federal agency” to mean “any Federal agency.” Needless to say, neither

statute nor caselaw may rewrite a statute, and Odin unsurprisingly does not stand for the

proposition Plaintiff claims it does.

In Odin, the Court of Appeals held that, for the purposes of

(a), “‘a final

agency action’ occurs when the agency has taken the final step necessary to settle [a] claim.”

. This holding, of course, has nothing to do with service of a claim upon the “appropriate

Federal agency.” In a footnote, Odin mentions that, pursuant to

(a), a federal

agency “shall transfer [a claim] forthwith to the appropriate agency” if the claim is first

“presented to the wrong Federal agency.”

at 803 n.22. From this footnote, Defendant

maintains that it is the settled law of this Circuit that a plaintiff properly serves a notice of claim

so long as it is delivered to some federal agency. Plaintiff misconstrues the regulation on which

she relies. In fact, the regulation provides that “[a] claim shall be presented as required by 28

U.S.C. [§] 2401(b) as of the date it is received by the appropriate agency.”

(b)(1) (emphasis added). Whatever duty the Secret Service may have had here to forward

Plaintiff’s claim, even the regulation on which Plaintiff relies makes clear section 2401(b)’s plain

meaning: the “appropriate Federal agency” must receive a plaintiff’s claim within two years

6 from when a plaintiff’s claim accrues.

Plaintiff does not meaningfully contest the United States’ view on when Plaintiff’s claim

accrued, but the Court shall pause to address the issue. Plaintiff asserts but one claim of

vehicular negligence. A claim of vehicular negligence cognizable through the FTCA accrues at

the time of the collision. E.g., Hardie v. United States v. United States,

, 158

(E.D.N.Y. 2020). Because, pursuant to section 2401(b), Plaintiff must have submitted her claim

to GSA within two years of the accident, February 3, 2020, section 2401(b)’s limitations period

ran on February 3, 2022. To date, as the claim has not been presented to the GSA, this action as

against the United States is time-barred. As such, the Court shall dismiss the United States as a

defendant.

B. Motion for Sanctions

Plaintiff’s motion for sanctions appears to argue that the United States should be

sanctioned for: (1) moving to dismiss for an “improper purpose,” Fed. R. Civ. P. 11(b)(1); (2)

moving to dismiss based on “legal contentions that are not warranted by existing law,” Fed. R.

Civ. P. 11(b)(2); and (3), moving to dismiss based on “factual contentions that are neither

warranted by the evidence nor reasonably based on belief or a lack of information,” Fed. Civ. P.

11(b)(4). Sanctions Mot. at 4. Each of these invocations of Rule 11 seem to revolve around the

central argument that the United States “aver[ing] that sending the FTCA claim to the wrong

federal agency is grounds for dismissal[ is] in contrast to the law and well settled policies of both

the courts and the Federal government.”

As explained above, it is not the United States that

“failed to make a reasonable inquiry into the facts or law before filing,” as Plaintiff charges, but

counsel for Plaintiff himself.

As noted above, the regulation on which Plaintiff relies reaffirms the plain text of section

7 2401(b): “A tort claim against the United States shall be forever barred unless it is presented in

writing to the appropriate Federal agency within two years after such claim accrues . . .”

(emphasis added). Supra at 6. Furthermore, as explained above, Odin does not remotely stand

for the proposition advanced by Plaintiff. Id. at 6-7. Finally, Plaintiff’s failure to notify counsel

for Defendant in advance of filing is another reason to deny Plaintiff’s Rule 11 motion. See

TJGEM LLC v. Repub. of Ghana,

(D.D.C. 2013). For these reasons, the

Court must deny Plaintiff’s motion for sanctions as procedurally improper and devoid of legal

basis on the merits. Finally, because Plaintiff’s motion for sanctions is so utterly meritless, the

Court shall exercise its discretion to award the United States costs pursuant to Rule 11(c)(2).

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the United States’ [15] Motion to Dismiss

and DENIES Plaintiff’s [17] Motion for Sanctions. The Court also GRANTS the United States’

request for costs pursuant to Federal Rule of Civil Procedure 11(c)(2), pending the submission of

an accounting due on or before November 4, 2022. The Court shall defer dismissing the United

States as a defendant until the resolution of that accounting.

Dated: October 24, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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