United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY, UNITED STATES DISTRICT JUDGE
times in January and February 2015, a Marine Corps ROTC
instructor at Clearwater High School raped Jane Doe, a
sixteen-year-old student and ROTC cadet. In November 2015, a
state court adjudicated the instructor, James Knuckles,
guilty of “unlawful sexual activity with a minor”
under Section 794.05, Florida Statutes. Jane Doe and her
parents sue (Doc. 4) the United States and the Pinellas
County School Board for negligent hiring and supervision
(counts one and three) and assault (counts two and four
allege the defendants' “vicarious liability”
for the rape). Finally, Jane Doe's parents claim a loss
of consortium (counts five and six).
complaint attempts to invoke jurisdiction under the Federal
Tort Claims Act,  which confers jurisdiction over a claim
against the United States that results from a federal
employee's tort within “the scope of [the
employee's] office or employment.” Arguing that the
Federal Tort Claims Act excludes jurisdiction in this
circumstance and that the complaint fails to state a claim,
the United States moves (Doc. 14) to dismiss under Rules
12(b)(1) and (6), Federal Rules of Civil Procedure. The
plaintiffs oppose (Doc. 19) dismissal under Rule 12(b)(6) but
offer no response to the jurisdictional argument.
Claims against the United States
federal court can entertain a claim against the United States
only if the United States waives sovereign immunity.
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citing
United States v. Sherwood, 312 U.S. 584, 586-87
(1941) (“The United States, as sovereign, is immune
from suit save as it consents to be sued, and the terms of
its consent to be sued in any court define that court's
jurisdiction.”) (internal citations omitted)). For
three reasons, the plaintiffs fail to invoke jurisdiction
under the Federal Tort Claims Act.
for “any claim arising out of assault [or]
battery” Section 2680(h) of the Federal Tort Claims Act
revokes the sovereign-immunity waiver in Section 1346(b)(1).
This “intentional-tort exception” applies even if
a plaintiff injured by a federal employee's assault or
battery alleges that the United States' “negligent
supervision” or “negligent hiring”
proximately caused the injury. United States v.
Shearer, 473 U.S. 52 (1985) (holding that the Section
2680(h) withdraws the United States' waiver of immunity
for a negligent-supervision claim that “arose
from” an employee's battery). Because the claims in
this action “aris[e]” from Knuckles' assault
and battery, the plaintiffs fail to invoke jurisdiction under
the Federal Tort Claims Act. See JBP Acquisitions, LP v.
United States, 224 F.3d 1260, 1263-64 (11th Cir. 2000)
(“If the alleged conduct falls within one of [the
Federal Tort Claims Act's] statutory exceptions, the
court lacks subject-matter jurisdiction.”).
the Federal Tort Claims Act withdraws immunity for only a
tort “within the scope of ” the federal
employee's “office or employment.” The
complaint alleges rape, which falls outside the scope of a
high-school instructor's (or anyone else's)
“office or employment.” See, e.g.,
City of Green Cove Springs v. Donaldson, 348 F.2d
197 (5th Cir. 1965) (applying Florida law); Iglesia
Cristiana La Casa Del Senor, Inc. v. L.M., 783 So.2d 353
(Fla. 3d DCA 2001) (per curiam); Martin v. United Sec.
Serv., Inc., 373 So.2d 720 (Fla. 1st DCA 1979) (per
curiam). Under Section 228 of the Restatement
(Second) of Agency, the “scope of
employment” depends whether the employer authorized
either the allegedly tortious act or similar behavior,
whether the employee acted “within the authorized time
and space limits, ” and whether the act furthered a
purpose of the employer. Neither the United States nor the
School Board authorized rape, which furthered no purpose of
either the United States or the School Board. And the rape
occurred off the campus of Clearwater High School. (Doc. 4 at
¶ 35) Not within the scope of Knuckles' employment,
the rape establishes no waiver of the United States'
the Federal Tort Claims Act confers jurisdiction only if an
employee of the United States commits the tort. Although the
complaint repeats several times the conclusion that the
United States “employed” Knuckles, insufficient
facts support the conclusion. “Employment”
requires that the United States “control and
supervise the day-to-day activities of the” person.
Means v. United States, 176 F.3d 1376, 1379 (11th
Cir. 1999) (affirming a grant of summary judgment) (citing
Logue v. United States, 412 U.S. 521 (1973), and
United States v. Orleans, 425 U.S. 807 (1976)).
Rather than allege facts that show the United States'
control over Knuckles' daily activities, the complaint
alleges, for example, that Knuckles attended an
“annual” training course taught by the United
States. (Doc. 4 at ¶ 56) Also, the complaint alleges
that the School Board hired Knuckles (Doc. 4 at ¶ 95),
which belies the conclusion that the United States employed
Knuckles. Additionally, the complaint emphasizes that the
United States (through the Department of Defense) sets the
ROTC curriculum, but the Marine Corps' establishment of
“general program guidelines” fails to convert
Knuckles - a high-school instructor hired by the School Board
- into a federal employee. See Cavazos v. United
States, 776 F.2d 1263 (5th Cir. 1985) (Politz, J.)
(affirming that an ROTC instructor fails to qualify as an
employee of the United States).
Claims against the School Board
School Board moves (Doc. 9) to dismiss under Rule 12(b)(6)
the state-law claims against the School Board but submits no
argument about jurisdiction. The Eleventh Circuit instructs
that a “federal court is obligated to inquire into
subject[-]matter jurisdiction sua sponte whenever
[jurisdiction] may be lacking.” Univ. of South
Alabama v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
plaintiffs attempt to invoke “pendant [sic]
jurisdiction” (Doc. 4 at ¶ 1) over the state-law
claims against the School Board. Section 1367(a) confers
supplemental jurisdiction over a state-law claim closely
“related” to a claim within the district
court's “original jurisdiction.” But if no
claim successfully invokes “original jurisdiction,
” Section 1367(a) confers no jurisdiction to adjudicate
the purportedly “supplemental” claim.
Moore's Federal Practice explains:
[I]f the federal claim was dismissed for lack of subject
matter jurisdiction, the district court has no discretion to
retain the supplemental claims for adjudication. The
dismissal means that there never was a valid claim within the
court's original jurisdiction to which the state claims
may be supplemental.
Vol. 16, § 106.66(1) (3d ed. 2017). Even if Section 1367
confers supplemental jurisdiction over the claims against the
School Board, in this instance comity compels declining to
exercise jurisdiction. See LA. Draper & Son v.
Wheelabrator-Frye, Inc.,735 F.2d 414, 428 (11th Cir.
1984) (“[I]f the federal claims are dismissed prior to