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LOCKSLEY v. U.S.

June 10, 2005.

ANNE LOCKSLEY,
v.
UNITED STATES and NATIONAL INSTITUTE OF MENTAL HEALTH, Defendants.



The opinion of the court was delivered by: JOHN KOELTL, District Judge

OPINION & ORDER

This is a motion to dismiss pursuant to Federal Rules of Civil Procedure 8, 12 (b) (1), and 12 (b) (6). The plaintiff, Anne Locksley, is an attorney who brought this action as a pro se litigant. In a complaint dated November 16, 2004 (the "Complaint"), the plaintiff alleged that the defendants, the United States and the National Institute of Mental Health ("the NIMH"), "committed negligence" against her at an academic symposium at Columbia University when they failed to cite certain research findings that the plaintiff had published. (See Compl. at 3-4.)

The plaintiff filed her complaint in the Supreme Court of the State of New York, New York County. The defendants removed this action to this Court pursuant to 28 U.S.C. § 1442 (a) (1) because the plaintiff's claims were brought against the United States and an agency of the United States. The defendants now move to dismiss the Complaint. The defendants move to dismiss the Complaint on numerous grounds. The defendants argue that (1) the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., bars the plaintiff's direct claim against the NIMH; (2) the Court lacks subject matter jurisdiction over this action against the United States because Congress has not waived sovereign immunity; (3) the Court lacks subject matter jurisdiction because the plaintiff has not exhausted the proper administrative remedies; (4) the plaintiff's Complaint fails to state a claim upon which relief can be granted; and (5) the plaintiff's Complaint fails to meet the minimum pleading requirements of Rule 8 of the Federal Rules of Civil Procedure.

  I.

  On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may consider matters outside the pleadings, such as affidavits, documents and testimony. See Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002); Antares Aircraft v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), aff'd on remand, 999 F.2d 33 (2d Cir. 1993); Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); John Street Leasehold, LLC v. Capital Mgmt. Res., L.P., 154 F. Supp. 2d 527, 533-34 (S.D.N.Y. 2001), aff'd, 283 F.3d 73 (2d Cir. 2002). The standard used to evaluate a Rule 12 (b) (1) motion is thus similar to that used for summary judgment under Rule 56. See Kamen, 791 F.2d at 1011. The plaintiff has the ultimate burden of proving the Court's jurisdiction by a preponderance of the evidence. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996); Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983); Fier v. United States, No. 01 Civ. 2225, 2002 WL 453177, at *1 (S.D.N.Y. Mar 25, 2002); see also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (when subject matter jurisdiction is challenged under Rule 12, plaintiff bears the burden of persuasion); Martin v. Reno, No. 96 Civ. 7646, 1999 WL 527932 (S.D.N.Y. July 22, 1999); see also Harp v. City of New York, 218 F. Supp. 2d 495, 496-97 (S.D.N.Y. 2002).

  II.

  The Complaint alleges that in early May 2004, the plaintiff received an invitation to attend a symposium at Columbia University entitled "Brain and Mind: Construction and Function of the Brain." (See Compl. at 3.) Among the sessions featured at the symposium was one entitled "Brain Function and Disease," which featured a presentation by the NIMH. (See id. at 3-4.)

  The plaintiff alleges that "due to [the Government's] use of expert credential, professional address, forum, and choice of topic," the Government had a duty to (1) cite certain research publications written by the plaintiff; (2) "restrict [its] speech as mandatorily required by the results in [plaintiff's] research publications"; (3) "include certain mandatory disclosure[s] required by the results in [plaintiff's] research publications"; and (4) "disclose two control variables mandatorily required by the results in [plaintiff's] research publications." (See Compl. at 4.) According to the plaintiff, the Government's failure to fulfill these duties constituted acts of negligence against the plaintiff, which violated her freedom of speech, freedom of the press, "useful progress in the arts and sciences," and freedom of trade and commerce, and "failed to relieve plaintiff . . . from tortious exposure, twenty four hours a day, seven days a week, fifty two weeks a year, every year twenty and more years, to a tortious popular culture of speech, press, technology, and arts restrained to fallacies of human inferential reasoning, increasing risk to Plaintiff Locksley." (Id. at 4-5, 12-13.)

  The plaintiff seeks (1) an injunction "causing operations of defendant National Institute of Mental Health to cease"; (2) compensatory damages "in monetary sum the equivalent accompanying the Nobel Prize in Medicine or $2,000,000," plus an amount equal to the difference between the average male and female lifetime earnings in research science and law as of age 53; (3) punitive damages in the amount of $48,000,000; and (4) "United States letters of credit in amount sufficient, in terms proper, for Plaintiff to accomplish incorporatively establishment fully in operations of earnings capable press, standard highest quality, for corporate purposes ancillary to her arts corporations, `Truffles and Pine Art Auctions, Incorporated' and `Inisle Films, Incorporated.'" (See Id. at 18-20.)

  III.

  The Government moves to dismiss the Complaint on several grounds, each of which will be discussed in turn.

  A.

  Pursuant to the FTCA, allegations of tortious conduct by a federal agency must be made against the United States, not against an individual agency. See 28 U.S.C. § 2679(a); C.P. Chemical Co., Inc. v. United States, 810 F.2d 34, 37 n. 1 (2d Cir. 1987) ("The FTCA expressly provides that only the United States may be held liable for torts committed by a federal agency, and not the agency itself"). The plaintiff alleges injuries based on the purported negligence of the NIMH and has sued the agency directly. Because the United States Government is the only party against which the plaintiff may maintain such a cause of action, the plaintiff's ...


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