Marsh v. Library of Congress ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CLIFTON MARSH, )
)
Plaintiff, )
)
v. ) Civil Action No. 18-2593 (RC)
)
)
LIBRARY OF CONGRESS, )
)
Defendant. )
MEMORANDUM OPINION
Plaintiff, appearing pro se, filed suit in the Superior Court of the District of Columbia
against the Library of Congress, seeking a judgment of $2,500 for what appears to be the loss of
his personal property. See Compl., ECF No. 1-1. Defendant removed the case to this Court
pursuant to 28 U.S.C. §§ 1346(b), 1442(a)(1), and 1446. 1 Not. of Removal, ECF No. 1. Pending
before the Court is Defendant’s Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(1), for lack of subject matter jurisdiction. ECF No. 3. Plaintiff, appearing pro se, has not
maintained a current address of record. Consequently, the order mailed to him advising of his
obligation to respond to defendant’s motion by December 31, 2018, ECF No. 4, was returned to
the Clerk’s Office as “undeliverable,” ECF No. 5. Regardless, the Court is required to dismiss
an action “at any time” it determines that subject matter jurisdiction is lacking. Fed. R. Civ. P.
12(h)(3). For the following reasons, defendant’s motion will be granted.
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Section 1442(a)(1) states in relevant part that a “civil action . . . commenced in a State court [brought]
against or directed to . . . [t]he United States or any agency thereof” may be removed to the United States
district court “embracing the place where[ ] it is pending[.]” Section 1446 sets out the procedure for “a
defendant . . . desiring to remove any civil action from a State court[.]” Id. para. (a).
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Under the doctrine of sovereign immunity, “the United States may not be sued without its
consent and . . . the existence of consent is a prerequisite for jurisdiction.” United States v.
Mitchell, 463 U.S. 206, 212 (1983). The Federal Tort Claims Act (“FTCA”) waives the United
States’ immunity from a lawsuit for monetary damages based on certain tortious conduct, see 28
U.S.C. §§ 1346(b)(1), 2671-80, and its “remedies [are] exclusive,” id. § 2679(a). Therefore,
defendant has appropriately addressed plaintiff’s claim under the FTCA.
Defendant contends that jurisdiction is lacking over any FTCA claim because plaintiff
failed to exhaust his administrative remedies. 2 See Def.’s Mem. at 3-4. Before obtaining
judicial review under the FTCA, a plaintiff must “first present[ ] the claim to the appropriate
Federal agency” and wait until the claim is “finally denied by the agency in writing,” or allow six
months to pass without receiving a final denial “by certified or registered mail.” 28 U.S.C. §
2675(a). The Court of Appeals has “treated the FTCA’s requirement of filing an administrative
complaint with the appropriate agency prior to instituting an action as jurisdictional.” Simpkins
v. D.C. Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997) (citing McNeil v. United States, 508 U.S. 106,
113 (1993); Odin v. United States, 656 F.2d 798, 802 (D.C. Cir. 1981)). Defendant has no
record of receiving a claim “relating to any incident filed by Clifton Marsh.” Decl. of Elizabeth
Pugh ¶ 4, ECF No. 3-1. Therefore, this case will be dismissed without prejudice. See
Abdurrahman v. Engstrom, 168 Fed. App’x. 445, 445 (D.C. Cir. 2005) (per curiam) (affirming
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Defendant argues that jurisdiction is lacking also because plaintiff has sued a federal agency instead of
the United States. Def.’s Mem. at 3 (citing 28 U.S.C. § 2679(a)). But plaintiff did not bring this action in
federal court, is accorded some leeway as a pro se party, Richardson v. U.S., 193 F.3d 545, 548 (D.C. Cir.
1999), and could move successfully to substitute the United States. See, e.g., Fed. R. Civ. P. 25 (“any
misnomer not affecting the parties’ substantial rights must be disregarded”). Therefore, the Court declines
defendant’s invitation to dismiss the complaint on this ground.
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the district court’s dismissal of unexhausted FTCA claim “for lack of subject matter
jurisdiction”). A separate order accompanies this Memorandum Opinion.
________/s/____________
RUDOLPH CONTRERAS
United States District Judge
Date: January 9, 2019
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