1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NIKKI L. JOHNSTON , Plaintiff

v. UNITED STATES OF AMERICA, et al. , Defendant s
. Civil Action No. 22

- 1284 (CKK)

MEMORANDUM OPINION ( October 24, 2022) This Federal Tort Claims A c t ( “ FTCA ” ) case is before the Court on Defendant U nited States of America ’ s ( “ Defendant ” or “ United States ” ) [15] Motion to Dismiss and Plaintiff Nikki L. Johnston ’ s ( “ Johnst on ” ) [17] Motion for Sanctions. Plaintiff has su ed the United States and Defendant Whala B. Singh ( “ Sing h ” ) for injuri es sustained from a collision between a
g overnment vehicle driven by Eric Radwick, an employee of the United S tates General Services Administration ( “ GSA ” ) , and a vehicle driven by Si ngh in which Johnston was a passenger. Johnson alleges her injuries were a proxim ate and legal re sult of either R adwick ’ s negligence, Singh ’ s negligence, or both. Beca use Johnston ’ s cla im 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 Re newed 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 Re newed Motion to Dismiss , ECF No. 20 ( “ Repl. ” );

• Plaintiff ’ s Motion for Rule 11 Sa nctions Against the United States of America and Memora ndum in Support , ECF No. 17 (“ Sa nctions Mot .”) ; and2 Court shall GRANT the United States ’ [15] Motion to Dismiss

. The legal infirm ities requiring the United States ’ dismissal as a d efendant carry over to Plaintiff ’ s [17] Motion for Sanctions , so it shall be DENIED

. Additionally, because Plaintiff ’ s [17] Motion for Sancti ons is so utterly devoid of merit , the Court shall GRANT the United States ’ request for costs incurred in responding to the motio n
. 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 Fo reign Inv. in U.S. , 758 F.3d 296, 315 (D.C. Cir. 2014).
T h e operative complaint ’ s allega tions are quite sparse. Plaintiff, an Arkansan, was a passenger in Singh ’ s car on February 3, 202 0. Am. Compl . ¶¶ 1, 6. Singh ’ s vehicle “ coll ided wi th the vehicle being operated by Mr. Eric. Donald Radwick on behalf of the Uni ted States Government, its employee acting in the course and scope of his employment. ” Id. ¶ 6. Both Singh and Ra dwick operated their cars negligently, injur ing Plaintiff

. Id. ¶ 8. On March 22, 2022, Plaintiff filed her initial complain t in the S u perior Court fo r the District of Columbia. There, despite Plaintiff ’s current acknowledgment that R adwick was acting in the course of her employment at the time of the purportedly tortious actions , Plaintiff sued Radwick (and Singh) in their personal c apacities. 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).3 employment , filing a notice of claim pursuant to the FTCA

. See ECF No. 26

- 3

. Counsel for Plaintiff evidently er roneously believed Rad wick to be an employee of the United States Secret Service based on what “the responding officer told M s. Johnston. ” Id. ; Decl. of Nikki L. Johnston, ECF No. 26

- 1 ¶ 3. Rad wick is, in fact, a n employee of an entire ly 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 Serv ice, the incorrect a gency, effective Ja nuary 31, 2022. ECF No. 5 at 1. Because Rad wick was acting in the course of his employment as a GSA employee, Defendant United States removed the case from Superior Co urt to this court on May 3, 2022 by filing its Westfall Certification, ECF No. 1

- 2. Th is Court now has removal jurisdiction as to the United States pursuant to 28 U.S.C. § 2679(d) and as to Singh pursuant to 28 U.S .C. §§ 1441(a) and 1447(c). Plaintiff effected service on Radwick and Si ngh on April 28, 2022. Affidavits of Service, Johnston v. Singh , 2022 CA 001295 V (D.C. Sup. Ct. May 4, 2022)

. Plaintiff h as 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 State s ’ motion to dismiss that complaint is now ripe. Although Plaintiff alleges in her amended com plaint that Radwick was a n employee of the Secret Service, Plaintiff now concedes that Radwick was a GSA employee at the time of the alleged tortious con duct. ECF No. 26 at 1. Plaintiff also filed a Rul e 11 motion for sanctions against the United States on July 28, 2 022, arguing , essentially, that the pending motion to dismis s is frivolous. Mot. Sa nctions 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.
T h is motion is also ripe for resolution.4 II. LEGAL STANDARDS
A. M ot ion 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 , 483 F.3d 824, 828 (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 , 333 F.3d 193, 198 (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. , 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (citations omitted). When considering whether to d ismiss for lack of jurisdiction, “ a court may consider such materials outside the plead ings as it deems appropriate to resolve the [jurisdictional] question. ” Comp etitive Enter. Inst. v. EPA , 153 F. Supp. 3d 376, 382 (D.D.C. 2016) (i nt ernal qu otation 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. , 526 U.S. 344, 350 (1999). Pursuant to Federal Rule o f 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 , 217 F.R.D. 16, 20 (D.D.C. 2003). The plaintiff “bears the burden of proving th at she has effected proper5 service.” Jouanny v. Embassy of France , 220 F. Supp. 3d 34, 37

- 38 (D.D.C. 2016). Insufficient service is a “fatal jurisdictional defect” and grounds for dismissal. Id. at 38.
III. D IS CUSSION
A. Motion to Dismiss
1. S ervice of Process The United States first argues that this case should be dismissed withou t prejudice for ineffective service. Citing nothing but the Federal Rules of Civil Procedure, the United States argues th at Plaintiff must serve the United States upon removal under the West fal l Act despite Plaintiff having already effected service upon Rad wick. 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 28 U.S .C. § 2679 (c) , once an individual employee receives service of process, they must “ deliver within su ch tim e after date of service . . . all process served upon [them] . . . to [their ] immediate supervisor” who the n must forward that service of process “ to the United States attorney for the district embracing the place wherein the proceeding is b rough t. ” In other words, once the employee is effectively served, the y become “ the agent for service of process for the United States. ” McGowan v. Williams , 623 F. 2d 1239, 1244 (7 th Cir. 1980). Because Rad wick was effectively served in his personal capacity, no further service of process was necessary when the United States remove d this case pursuant to 28 U.S.C. § 2679( d ).
2. Statu te of Limitations
More succes sfully, the United States ar gues that the Court s hould dismiss this matter with prejudice because the statute of limitations has run on Plaintiff ’ s claim against the United States.
Pursuant to 28 U. S. C. § 2401(b):6 A tort claim against the United States shall be f orever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim acc rues 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.
Her e, the parties agree that the “ appropriate Federal agency ” was the United States General
Ser vices Administration. Plaintiff, however, never served a claim on the GSA, and instead only on the United States Secret Ser vice. Relying on a baseless reading o f Odin v. United States , 656 F.2d 798 (D.C. Cir. 1981) and a particular regulation, Plaintiff insists that this should be enough, reading “ appropriate Federal agency ” to mean “ any Feder al agency

. ” N eedless to say, nei ther

sta tute nor caselaw may rewrite a statute , a nd Odin unsurpr isingly does not stand for the proposition Plaintiff claims it does.
In Odin , the Court of Appeals held that, for the purposes of 28 U. S.C. § 2675(a), “ ‘ a final agency action ’ occurs when the agency has taken the final step necessary to settle [a] claim. ” Id.

at 804. This holding, of course , has nothing to do with service of a claim u pon the “ appropriate Federal agency. ” In a footnote, Odin mentions that, pursuant to 28 C.F.R. § 14 .2(a), a federal
agency “ shall transfer [a claim] forthwith to the appropriate agency ” if the claim is first

“ presented to the wr ong Federal agency. ” Id. at 803 n.22. From this footnote, Defendant maintains that i t is the settled law of this Circuit that a plaintiff properly serv es 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 re ceived by the appropriate agency . ” 28 C.F.R. § 14.2(b)(1) (emphasis added). Whatever duty the Secret Service may have had here to forward Plaintiff ’ s claim, eve n 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 years7 from wh en a plaintiff ’ s claim acc rues. Plaintiff does not meaningfully contest the United States ’ view on when Plaintiff ’ s claim

acc rued, but the Court sh all pause to address the issue. Plaintiff asserts but one claim o f

ve hicular ne gligence. 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 , 501 F. Supp. 3d 152, 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, 202 0 , section 2401(b) ’ s limitations period ran on February 3, 2022. To date, a s 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 t o argue that the Un ited States sh ould be sanctioned fo r : (1) moving to dismiss for an “ improper purpose, ” Fed. R. Civ. P. 11(b)(1); (2) moving to dismiss based on “ legal conte ntions 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 e vidence 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 R u le 11 seem to revolve around the central argument that the United States “ aver[ing] that sending the FTCA claim to the wrong federal age ncy is grounds for di smis sal [ is] in contra st to the law and well settled policies of both the courts and the Federal government. ” Id. As explained above, it is not the United States that

“ failed to make a reason abl e 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 s ection8 2401(b): “ A tort claim against the United States shall be f orever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim acc rues
. . . ” (emphasis added). Supra at 6. Furthermore, as explained above, Odin does not remotely stand for t he proposition advanced by Plaintiff

. I d. 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 G hana , 26 F. Supp. 3d 1, 15 (D.D.C. 2013 ). For these reasons, the Court must deny Plaintiff ’ s motion for sanctions as pro cedurally im proper and devoid of legal basis on the merits. Fin ally, because Plaintiff ’ s motion for sanctions is so utterly meritless, the Court shall exercise its discretion to award the Unit ed States costs p ursuant to Rule 11 (c) (2).
IV. C ONCLUSION For the foregoing reasons, the C ourt G RANTS the United States ’ [15] Motion to Dismiss and DENIES Plaintiff ’s [17] Motion for Sanctions . The Court also GRANT S the United States ’ request for costs pursuant to Federal Rule of Civil Procedure 11 (c) (2), pending the submission of

an account ing due o n or before November 4, 2022 . The Court shall defer dismissing the United
States as a defendant until the resolution of that accounting.

D ated: October 24, 2022 /s/ COLLEEN KOLLAR

- KOTELLY United States District Judge