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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-2022
MITCHELL GARNET EVANS, Executor of the Estate of Sallie Copeland Evans,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Louise W. Flanagan, District Judge. (4:21-cv-00045-FL)
Argued: January 24, 2024 Decided: June 24, 2024
Before GREGORY, QUATTLEBAUM, and BENJAMIN, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion, in which Judge Benjamin
joined. Judge Quattlebaum concurred in the judgment and wrote a concurring opinion.
ARGUED: Walton Everett Lupton, SLAUGHTER & LUPTON LAW, PLLC, Virginia
Beach, Virginia, for Appellant. Sharon Coull Wilson, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina; Madison Dunbar, DUKE UNIVERSITY SCHOOL
OF LAW, Durham, North Carolina, for Appellee. ON BRIEF: Michael F. Easley, Jr., United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
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GREGORY, Circuit Judge:
This case arises out of the events surrounding Sallie Copeland Evans’s murder.
Appellant Mitchell Garnet Evans, Executor of the Estate of Sallie Copeland Evans and
Sallie’s son, initiated the underlying action against the United States pursuant to the Federal
Tort Claims Act asserting a claim for wrongful death under North Carolina law. The
district court dismissed Evans’s claim for lack of subject-matter jurisdiction, and this
appeal followed.
We conclude that the district court erroneously dismissed Evans’s claim under
Federal Rule of Civil Procedure 12(b)(1) because the jurisdictional question and the merits
of this case are inextricably intertwined. However, because Evans failed to state a wrongful
death claim under North Carolina law, the district court’s decision—though procedurally
incorrect—was substantively proper. Accordingly, we affirm the district court’s decision
on alternative grounds and dismiss the case under Rule 12(b)(6).
I.
Isaiah Evans Ceasar, Sallie’s grandson and Evans’s nephew, was a lance corporal in
the United States Marine Corps. In March 2018, Ceasar was stationed at Fort Benning,
Georgia, where he participated in combat school. On or about March 30, 2018, Ceasar left
Fort Benning without permission. He left behind a note stating that he “was going to end it
all and kill himself.” J.A. 7 ¶ 10. A classmate found the note and someone informed Ceasar’s
commander, Marine Corps Captain Smith, of its contents. Ceasar was classified as absent
without leave (“AWOL”) from his unit or place of required duty sometime thereafter.
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On April 1, 2018, a sergeant in Ceasar’s Marine Corps unit contacted local law
enforcement officials in Nash County, North Carolina, where Ceasar’s girlfriend and
friends lived at the time. The sergeant informed local law enforcement that “Ceasar had
gotten into trouble and left a note indicating that he was going to end it all, but before
committing suicide, Ceasar wanted to visit his mother.” J.A. 8 ¶ 11. At the time, Ceasar’s
mother was in an inpatient medical facility in Halifax County, North Carolina.
Sometime after leaving Fort Benning, Ceasar traveled to Halifax County. When
Ceasar’s family learned that he was there, they called Capt. Smith to advise him that Ceasar
needed to be picked up by the Marine Corps. Capt. Smith arranged for Ceasar to return to
Fort Benning unsupervised sometime after that call. On April 5, 2018, Ceasar boarded a
flight from Raleigh-Durham International Airport (“RDU”) to Atlanta, Georgia, per the
travel arrangements Capt. Smith made.
On April 10, 2018, Ceasar’s family learned that he had returned to Halifax County
and was at his grandfather’s home. Ceasar’s family called Capt. Smith to inform him that
Ceasar had returned and “that they were concerned and afraid something could happen.”
J.A. 8 ¶ 16. That same day, Sallie asked Capt. Smith “why the Marine Corps had not
picked up Ceasar” and requested that Capt. Smith arrange for North Carolina law
enforcement officials to retrieve Ceasar. J.A. 9 ¶ 17. Capt. Smith took no action.
On or about April 11, 2018, Capt. Smith told Ceasar’s family that he found several
notes from Ceasar that were “disturbing.” J.A. 9 ¶ 18. The notes allegedly “expressed
Ceasar’s intent of violence” against himself and others. Id. During that conversation, Capt.
Smith “stated that he was very concerned because of the notes’ contents” and advised Sallie
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that she “should be careful if she came in contact with Ceasar.” Id. Sallie again requested
that Capt. Smith have Ceasar detained. In response, Capt. Smith stated that the Marine
Corps had exhausted significant resources in making the previous travel arrangements for
Ceasar and “would not commit to making any further effort to find and detain” him. J.A.
9 ¶ 19.
On April 17, 2018, Ceasar’s family called Capt. Smith to inquire about why the
Marine Corps had not retrieved Ceasar and to inform Capt. Smith that they “found grenade
parts they believed Ceasar had acquired.” J.A. 9 ¶ 20. They also told Capt. Smith that
Ceasar’s Facebook posts indicated that he had purchased guns. The family again requested
that the Marine Corps have local law enforcement detain Ceasar. This time, they noted that
Ceasar was “acting aggressive” and “easily agitated” and that they were “concerned
something would happen.” Id. Capt. Smith stated that the information “was concerning”
and that “he would see what he could do,” but again noted that the Marine Corps had already
exhausted significant resources in a failed attempt to return Ceasar to Fort Benning. Id.
At some point, the family purchased Ceasar a ticket for a flight from RDU to
Atlanta. On or about April 22, 2018, Sallie and Evans transported Ceasar to RDU and
watched him board his flight. They called Capt. Smith to notify him that Ceasar had
boarded the flight and needed to be detained at the airport. Capt. Smith informed them that
he did not have the resources to have Ceasar detained at the airport and thus Ceasar would
need to arrange his own transportation from the airport to Fort Benning.
The next day, Ceasar returned to Halifax County. Sallie again contacted Capt. Smith
“who refused to take any action to have Ceasar detained” and instructed Sallie to take Ceasar
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to Marine Corps Base Camp Lejeune (“Camp Lejeune”) near Jacksonville, North Carolina.
J.A. 10 ¶ 23. Sallie informed Evans of her conversation with Capt. Smith and became
emotional regarding the Marine Corps’ lack of action. Evans then texted Capt. Smith the
following message:
We put Isaiah on a plane yesterday flew him back to you once again And you
didn’t pick him up cause he’s back here in NC at moms house She worried
I’m worried Y’all need to pick his ASS up before something happens!!
J.A. 10–11 ¶ 24. Capt. Smith did not respond to Evans’s text message.
On or about April 24, 2018, Capt. Smith again suggested that Sallie drive Ceasar to
Camp Lejeune. As Sallie tried to convince Ceasar to gather his belongings for the trip,
Ceasar shot her in the back of the head with a 9mm pistol. Sallie’s dead body was located
several days later. Ceasar was subsequently arrested at a hotel and charged with first-
degree murder. At the time of his arrest, Ceasar had Sallie’s car and credit card, as well as
unidentified “explosive devices,” in his possession. J.A. 11 ¶ 27.
II.
Evans filed a wrongful death claim with the Marine Corps alleging that the agency
was liable for Sallie’s murder. The Marine Corps denied Evans’s claim on October 13, 2020.
Evans then filed a timely complaint in federal court, which he later amended with leave from
the district court. The Government moved to dismiss the amended complaint. In its motion,
the Government contended that the district court lacked subject-matter jurisdiction because
Evans’s claim was prohibited under the FTCA, and, alternatively, that Evans failed to state
a wrongful death claim under North Carolina law. Evans opposed the motion, arguing that
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his claim is permitted under the FTCA because it is based on Capt. Smith’s negligence, not
Ceasar’s actions, and that his allegations plausibly stated a claim. The district court referred
the motion to a magistrate judge for a report and recommendation.
The magistrate judge held a hearing and subsequently recommended that Evans’s
claim be dismissed for lack of subject-matter jurisdiction. See J.A. 72, 108. In making this
determination, the magistrate judge relied heavily on the Supreme Court’s decision in
Sheridan v. United States, 487 U.S. 392, 398 (1988), which established that the government
can only be held liable for a federal employee’s negligence that results in a foreseeable
assault or battery where the basis for imposing government liability is independent of the
intentional tortfeasor’s federal employment.
The magistrate judge determined that under Sheridan, federal court jurisdiction in
this case depended on whether Capt. Smith’s alleged negligence was independent of
Ceasar’s status as a Marine. J.A. 104. The magistrate judge concluded that Evans’s theory
of liability depended on Ceasar’s status as a Marine because the Marine Corps’ authority
to control, retrieve, or detain Ceasar derived from Ceasar’s military status, and, absent that
status, it was unlikely that Capt. Smith would have assisted Sallie. J.A. 103–04, 108. The
magistrate judge did not address the parties’ arguments regarding the merits of the case.
Evans objected to the magistrate judge’s recommendation. He contended that
Ceasar’s employment was irrelevant to his claim because Capt. Smith’s instruction to Sallie
to drive Ceasar to Camp Lejeune was negligent absent Ceasar’s military status. J.A. 112.
In response, the Government argued that the objections should fail because Capt. Smith’s
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ability to control Ceasar was based on Ceasar’s status as a Marine, and, absent that
employment relationship, the Marine Corps did not owe Sallie a duty.
The district court adopted the recommendation. Like the magistrate judge, the
district court found that Evans’s basis for imposing liability on the government was not
independent of Ceasar’s employment with the Marine Corps. Evans v. United States, 2022
WL 3924222, at *4 (E.D.N.C. Aug. 30, 2022). On this point, the court noted that Ceasar’s
family relied on the Marine Corps’ ability to control Ceasar as his employer in requesting
help from Capt. Smith. Id. The court also found that Evans failed to identify any legal
authority indicating that Capt. Smith voluntarily assumed a duty to Sallie by telling her to
drive Ceasar to Camp Lejeune. Id. at *5. Accordingly, the district court concluded that
Evans’s claim was barred under the FTCA and dismissed the case for lack of subject-matter
jurisdiction.
III.
We review a district court’s dismissal for lack of subject-matter jurisdiction de novo.
Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). Under the principle of
sovereign immunity, the United States cannot be sued without Congress’s consent. United
States v. Sherwood, 312 U.S. 584, 586 (1941). In 1946, Congress enacted the Federal Tort
Claims Act (“FTCA” or the “Act”), a limited waiver of the United States’s sovereign
immunity for certain causes of action against the federal government. 28 U.S.C. § 1346.
The Act grants federal courts exclusive jurisdiction over claims against the United States
for “personal injury or death caused by the negligent or wrongful act or omission of any
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employee of the Government while acting within the scope of his office or employment.”
Id.; see also Levin v. United States, 568 U.S. 503, 507 (2013).
Because the FTCA confers jurisdiction only over claims covered by the Act, district
courts lack subject-matter jurisdiction over claims against the government that fall outside
of the statute’s purview. Sherwood, 312 U.S. at 586 (“The terms of the government’s
consent to be sued in any court define that court’s jurisdiction to entertain suit.”). Thus,
claims presented in federal court that are not covered under or are explicitly prohibited by
the FTCA are dismissed under Rule 12(b)(1). Bullock v. Napolitano, 666 F.3d 281, 284
(4th Cir. 2012), cert. denied, 133 S. Ct. 190 (2012) (“Sovereign immunity is not only a bar
to liability but also a bar to the court in which suits against the United States can be filed”).
Relevant here, the Act prohibits claims that arise out of an assault or battery committed by
a federal employee. 28 U.S.C. § 2680(h). This is known as the intentional tort exception.
Levin, 568 U.S. at 507.
The Supreme Court has stated that the phrase “any claim arising out of” as used in
the context of the intentional tort exception is “unquestionably broad enough to bar all
claims based entirely on an assault or battery” but that “[t]he import of these words is less
clear . . . when they are applied to a claim arising out of two tortious acts, one of which is
an assault or battery and the other of which is a mere act of negligence.” Sheridan v. United
States, 487 U.S. 392, 398 (1988) (emphasis in original). As stated above, the court below
relied on the Supreme Court’s decision in Sheridan v. United States, in dismissing Evans’s
case. Given the import of that case to the court’s decisions and the parties’ arguments on
appeal, an illustration of Sheridan is warranted.
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In Sheridan, three naval corpsmen encountered an intoxicated man at a hospital on
a naval base. 487 U.S. 392, 395 (1988). They learned that the man was armed during a
scuffle that ensued when they attempted to take him to the emergency room. Id. They fled
and did not alert anyone of the encounter even though the naval base prohibited possession
of firearms and required personnel to report any violations of the prohibition. Id. at 401.
Later that day, the intoxicated man, who was later identified as an off-duty serviceman,
fired several shots into a car near the hospital injuring several passengers. Id. at 395. The
injured passengers filed suit alleging that their injuries were caused by the corpsmen’s
negligence in allowing the intoxicated serviceman to leave the hospital with a loaded rifle.
Id. at 394.
The Supreme Court held that because the injured passengers’ claim was predicated
on the alleged negligence of the corpsmen and not the serviceman’s employment status or
state of mind, the intentional tort exception was inapplicable. Id. at 403. The Court
reasoned that because the Navy adopted regulations that prohibited on-base possession of
firearms and required personnel to report violations, and because the corpsmen undertook
to provide care to a visibly intoxicated and armed person, the government had “assumed
responsibility to perform [a] good Samaritan task.” Id. at 401. The Court equated that
“good Samaritan task” to a voluntarily undertaken duty and concluded that the
government’s failure to execute its “good Samaritan task” in a careful manner could serve
as the basis for a negligence claim. Id.
Under Sheridan, whether Evans’s claim is permitted or prohibited under the FTCA
depends on whether the intentional tort exception applies and thus whether Capt. Smith
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was negligent on a basis unrelated to Ceasar’s employment with the Marine Corps. The
Government, which characterizes Evans’s claim as one “for injury resulting from murder,”
maintains that the intentional tort exception bars Evans’s claim. Resp. Br. 12. In contrast,
Evans contends that the intentional tort exception is inapplicable because Sallie’s death
resulted from two tortious acts—Ceasar’s shooting and Capt. Smith’s negligence—and he
seeks to impose liability on the Government for only the latter. He maintains that because
the facts essential to determining the merits (whether Capt. Smith was negligent) and
jurisdiction are inextricably intertwined, the district court erred in dismissing his claim for
lack of subject-matter jurisdiction.
Admittedly, our jurisprudence appears unclear on its face regarding how we review
district court dismissals on jurisdictional grounds where, as here, the facts essential to
determining federal court jurisdiction and the merits are indistinguishable. In some
instances, we have interpreted the district court’s jurisdictional dismissal as if it were on
the merits, reviewed the court’s decision for accuracy and affirmed the dismissal on the
merits. See, e.g., Durden v. United States, 736 F.3d 296 (4th Cir. 2013); Rivanna Trawlers
Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236 (4th Cir. 1988). In others, we have
determined that the district court’s dismissal on jurisdictional grounds was improper,
vacated that decision, and remanded for discovery on the jurisdictional issue. See Kerns v.
United States, 585 F.3d 187 (4th Cir. 2009). Although we have acknowledged the
discrepancy in our treatment of the issue, see Durden, 736 F.3d at 301, we have never
explained the rationale behind our decisions or clarified under what circumstances each
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approach should be applied. We take the opportunity to do so now and begin with a brief
discussion of our relevant jurisprudence.
In Rivanna, we reviewed the district court’s dismissal of the plaintiffs’ federal
securities law claims for lack of subject-matter jurisdiction following the defendant’s
motion to dismiss which the court converted into a summary judgment motion. Rivanna
Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236 (4th Cir. 1988) (internal
quotation omitted). We held that the district court properly accepted jurisdiction over these
claims and considered them on the merits despite the court’s “technically incorrect”
statements dismissing the claims for lack of subject-matter jurisdiction. Id. at 239. We
therefore interpreted the district court’s dismissal as a grant of the defendant’s motion for
summary judgment and affirmed the dismissal on the merits. Id. at 239, 243.
In Kerns, the plaintiff asserted an FTCA claim alleging that a government
employee’s negligent driving caused her husband’s death. Kerns v. United States, 534 F.
Supp. 2d 633, 635 (D. Md. 2008), vacated,
585 F.3d 187 (4th Cir. 2009). The district court
held that the claim was not cognizable under the FTCA because the driver was not acting
within the scope of her employment at the time of the accident. Id. at 640. On appeal, the
plaintiff argued that because whether the negligent driver was acting within the scope of
her employment was central to the court’s jurisdiction and the merits of her claim the
district court should have reached the merits. Kerns, 585 F.3d at 192. We agreed.
Id. at
195. In vacating the district court’s jurisdictional dismissal, we said, our “general rule[,]”
is that “[a] district court should assume jurisdiction and assess the merits of the claim when
the relevant facts—for jurisdictional and merits purposes—are inextricably intertwined.”
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Id. We remanded the case for discovery on the jurisdictional issue without opining on the
merits. Id. at 196.
Most recently in Durden, we reviewed another dismissal of an FTCA claim on
jurisdictional grounds. Durden, 736 F.3d at 298. In our analysis, we acknowledged the
discrepancy between our treatment of the appeals in Rivanna and Kerns, two cases we said
arose under the same procedural posture as Durden. Id. Specifically, we noted that we
vacated the district court’s dismissal for lack of subject-matter jurisdiction in Kerns, but
we treated the district court’s jurisdictional dismissal in Rivanna “as one for failure to state
a claim that had been converted into a motion for summary judgment.” Id.
We characterized Durden as “more akin to Rivanna than Kerns insofar as the
government argued” that jurisdiction was lacking even if the allegations in the complaint
were accepted as true. Id. We concluded that in assessing the motion, the district court
adequately considered the merits of the plaintiff’s claim despite its “technically incorrect
statement” purporting to dismiss the case for lack of subject-matter jurisdiction. Id. at 302.
As we had done in Rivanna, we interpreted the district court’s dismissal as a grant of
summary judgment to the government and affirmed. Id. at 309.
Although we only characterized the facts relevant to the merits and jurisdictional issue
in Kerns as “inextricably intertwined,” the phrase is equally applicable to Rivanna and
Durden. In Rivanna, we considered whether a partnership interest qualified as a security,
which was both an element of the federal claim and federal jurisdiction. Rivanna, 840 F.2d
at 239. Meanwhile, in Durden, the Army’s alleged negligence undergirded both jurisdiction
and the merits of Durden’s FTCA claim. Durden, 736 F.3d at 301. Since Kerns, Rivanna,
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and Durden all involved inextricably intertwining facts, the relevant material difference
between Kerns on the one hand and Rivanna and Durden on the other was the type of
jurisdictional challenge the defendants made in each case—a factual challenge in Kerns, and
facial challenges in Durden and Rivanna. Our approach on appellate review in cases in
which the merits and jurisdictional questions overlap thus differs depending on the type of
jurisdictional challenge asserted before the district court. This distinction is logical given the
difference in the approach district courts employ when assessing each type of challenge.
Where a defendant challenges the factual predicate of subject-matter jurisdiction,
the district court need not assume the truth of the allegations, may decide disputed issues
of fact, and may venture outside of the pleadings to resolve the challenge. Kerns, 585 F.3d
at 192. Considering the standard and the array of evidence the district may review under
it, we cannot assume on appeal that the district court assessed the merits in making a
jurisdictional determination following a factual challenge. This is especially so at the
motion to dismiss stage where, on the merits, the district court must limit its consideration
to the pleadings and accept the facts as true. Fed. R. Civ. P. 12(b)(6). Accordingly, as a
court of review, we refrain from assessing the merits under these circumstances and remand
for the district court to conduct the appropriate analysis in the first instance. That was the
approach we applied in Kerns. Id. at 196.
The same concerns regarding the district court’s assessment of the merits are not
present in the context of facial challenges. Under a facial challenge, where the defendant
contends that the allegations in the complaint are insufficient to confer subject-matter
jurisdiction, the district court assesses the motion under the same standard as one brought
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under Rule 12(b)(6). Id. at 192. In evaluating such a challenge, the district court accepts
all allegations as true and determines whether those allegations are sufficient to invoke
jurisdiction. Id. Because the Rule 12(b)(1) and Rule 12(b)(6) analyses are materially
identical in this scenario, our review of the district court’s decision (which necessarily
included an assessment of the merits) does not improperly circumvent the district court’s
role. Thus, under these circumstances, it is appropriate for us to interpret the district court’s
dismissal as though it followed a challenge to the merits of the case as we did in Rivanna
and Durden.
We now apply that approach to the district court’s dismissal in this case. Evans
brought a wrongful death claim pursuant to the FTCA premised on his assertion that
Sallie’s death resulted (at least in part) from Capt. Smith’s negligence. If Evans’s assertion
is correct, Sheridan dictates that the claim is not barred by the intentional tort exception.
By contrast, if Capt. Smith was not negligent and Ceasar’s act alone caused Sallie’s death
Evans’s suit is prohibited under the intentional tort exception and the principle of sovereign
immunity. As such, whether Capt. Smith was legally negligent is determinative of whether
federal courts have jurisdiction over this case. The facts essential to determining
jurisdiction and assessing the merits of Evans’s claim are therefore inextricably intertwined
and the district court erred in dismissing the case under Rule 12(b)(1). *
*
In Brownback v. King, 592 U.S. 209 (2021), the Supreme Court addressed whether
the FTCA’s judgment bar provision prevents a plaintiff whose claim was previously
dismissed for lack of subject-matter jurisdiction from asserting another action against the
same defendants for the same injuries. In a footnote in that case, the Court stated that in
(Continued)
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IV.
Our determination that the district court erred in dismissing Evans’s claim under
Rule 12(b)(1) does not end our analysis because the Government facially challenged
subject-matter jurisdiction. As discussed above, because the standards that district courts
apply in assessing Rule 12(b)(6) motions and facial jurisdictional challenges are identical,
the district court necessarily considered the merits of Evans’s claim in deriving its
jurisdictional conclusion. Accordingly, we now assess the district court’s decision as
though it occurred under Rule 12(b)(6).
This Court reviews a district court’s dismissal under Rule 12(b)(6) de novo. See
Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020). Dismissal is only appropriate where a
complaint does not “contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotations and citations omitted). To demonstrate plausibility, the complaint must plead
facts beyond those that are “merely consistent with a defendant’s liability.” Id. In
assessing the sufficiency of the complaint under this standard we must draw all reasonable
inferences in favor of the plaintiff. Roane, 948 F.3d at 226. A complaint may only survive
cases “where a plaintiff fails to plausibly allege an element that is both a merit element of
a claim and a jurisdictional element, the district court may dismiss the claim under Rule
12(b)(1) or Rule 12(b)(6). Or both.” Id. at 218 n.8. Because that statement is dicta and
can be read in line with circuit precedent, we proceed to the merits. See Short, 87 F.4th at
605 (4th Cir. 2023) (“If it is possible for us to read our precedent harmoniously with
Supreme Court precedent, we must do so.” (internal quotation omitted)); Carrera v. E.M.D.
Sales Inc., 75 F.4th 345, 352 (4th Cir. 2023) (“We do not lightly presume that the law of
our circuit has been overturned or rendered no longer tenable”) (internal quotation and
citation omitted)).
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a motion to dismiss where its factual allegations “raise a right to relief above the speculative
level, thereby nudging the claims across the line from conceivable to plausible.” Bazemore
v. Best Buy, 957 F.3d 195, 200 (4th Cir. 2020) (internal quotations and citations omitted).
V.
The United States may only be held liable for negligence under the FTCA if an
individual could be held liable for the same actions under the law of the state where the
alleged negligence occurred. See Kerns, 585 F.3d at 194 (citing
28 U.S.C. § 1346(b)(1)).
Capt. Smith was in Georgia at all relevant times, but Sallie was murdered in North Carolina.
The parties agree that North Carolina law governs Evans’s claim as the law of the place of
injury. Opening Br. 8; Resp. Br. 18; see also Wiener v. AXA Equitable Life Ins. Co., 58
F.4th 774, 779 (4th Cir. 2023) (“We conclude that choice of law is waivable, not
jurisdictional, and AXA waived the possible application of Connecticut law by
affirmatively litigating under the substantive law of North Carolina.”).
Under North Carolina law, a personal representative may recover damages a
decedent would have been entitled to for injuries or death caused by the “wrongful act,
neglect, or default” of another. N.C. Gen. Stat. Ann. § 28A-18-2. We have recognized
that, in North Carolina, an individual may expose himself to negligence liability by
assisting or attempting to assist another person when he does not have an obligation to do
so. See Durden, 736 F.3d at 305. Under that circumstance, the individual has voluntarily
undertaken a duty and may be held liable for injuries that result from his breach of that
duty, or failure to exercise reasonable care when executing it. Id.
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Evans maintains that Capt. Smith voluntarily undertook to assist Sallie by
instructing her to drive Ceasar to Camp Lejeune. Tellingly, Evans failed to identify any
legal authority indicating that a person or private employer could be held liable under
similar circumstances. And even if he had, the facts in the complaint do not sufficiently
allege that Capt. Smith voluntarily undertook a duty to Sallie at any time they were in
contact. Indeed, even with all inferences drawn in Evans’s favor, the facts suggest the
opposite. Notably, prior to telling Sallie to drive Ceasar to Camp Lejeune, Capt. Smith
explicitly informed her on several occasions that the Marine Corps would not take any
further action to locate or retrieve Ceasar. True to that position, he took no action in
response to Sallie’s requests for him to involve local law enforcement. With that context,
their conversations regarding Camp Lejeune are better understood as Capt. Smith
suggesting actions Sallie could take to resolve her issue than him attempting to assist her.
Evans’s allegation regarding Capt. Smith arranging for Ceasar to fly to Georgia
following the family’s initial call is likewise insufficient. Indeed, nothing in the complaint
suggests that Capt. Smith arranged Ceasar’s travel to Fort Benning to assist Ceasar’s
family. Rather, the allegations suggest that Capt. Smith attempted to return an AWOL
soldier to base after he learned where the AWOL soldier fled to. Our conclusion may have
been different if Capt. Smith had not repeatedly stated that the Marine Corps would not
take any further action to assist Ceasar’s family, or if he had traveled to North Carolina to
retrieve Ceasar or authorized others to detain Ceasar. However, given the absence of any
facts alleging that Capt. Smith acted to assist or benefit Sallie, Evans cannot state a claim
premised on a voluntary undertaking.
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Similarly, to the extent Evans’s claim is predicated on a special relationship between
the Marine Corps and Ceasar, the claim still fails. We have previously stated that FTCA
claims based on a special relationship may only survive if the government had authority to
control the tortfeasor independent of the tortfeasor’s employment status. Durden, 736 F.3d
at 305. Because the complaint is devoid of facts alleging that the Marine Corps had any
authority to control Ceasar independent of Ceasar’s status as a Marine, Evans has not
plausibly alleged a special relationship. See id.; see also LaFrancis v. U.S., 66 F. Supp. 2d
335 (1999) (holding that plaintiff’s FTCA claims were barred by the intentional tort
exception because any duty allegedly owed to her was dependent upon the alleged
tortfeasor’s employment with the Navy and “without the employment relationship, the
Navy would not have had the authority to supervise the conduct of [the tortfeasor]”).
Moreover, even if Capt. Smith had voluntarily undertaken a duty to Sallie or the
Marine Corps had a special relationship with Ceasar, Evans’s claim would still be
foreclosed under North Carolina law. In North Carolina, “[n]o legal duty exists unless the
injury to the plaintiff [or decedent] was foreseeable and avoidable through due care.” Stein
v. Asheville City Bd. of Educ., 360 N.C. 321, 328 (2006). Accepting the facts as pleaded
here, we cannot conclude that Sallie’s death was foreseeable under the circumstances. Our
decision in Durden is instructive.
In Durden, an Army specialist expressed his desire to kill himself and members of
his unit to his staff sergeant and told a fellow soldier that he was unable to sleep due to
alcohol and drug use. Durden, 736 F.3d at 299. The specialist later burglarized a civilian
home and assaulted its occupants with a pellet gun. Id. After serving time in a civilian
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jail, the specialist returned to the military base where his superiors imposed certain
restrictions on him because of his crimes. Id. Nearly two months after his return, the
specialist unlawfully entered a woman’s home on the base while intoxicated and raped her
in front of her children. Id. at 300.
The woman sued the government alleging that the Army was aware that the
specialist posed a threat of danger to others, had a duty to protect her from that danger, and
breached that duty by not continuing to enforce the restrictions imposed because of the
specialist’s prior crimes. Id. On appeal we concluded that the woman failed to state a
negligence claim because even if the Army had assumed a duty in monitoring the specialist,
the woman’s rape was not foreseeable under the circumstances. Id. at 303–04. We said
that although the woman alleged that the Army had knowledge of the specialist’s prior
crime, drug and alcohol use, and desires to kill himself and others, those facts did not
indicate that the specialist had a propensity for rape. Id. As such, we determined that the
facts were insufficient to indicate that the Army should have recognized that continued
enforcement of the restrictions imposed was necessary to protect the woman from being
raped. Id.
In an attempt to distinguish Durden, Evans maintains that unlike the rape in that case,
Sallie’s murder was foreseeable because, in the days preceding it, (1) Ceasar’s family notified
Capt. Smith that Ceasar posed an immediate risk of harm to Sallie and others, (2) Capt. Smith
expressed concern about Ceasar’s actions, and (3) Capt. Smith communicated that the Marine
Corps had exhausted substantial resources to retrieve Ceasar and would not commit to taking
any additional action. Evans argues that these allegations demonstrate that Capt. Smith knew
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that Ceasar posed an immediate danger to others when he told Sallie to drive Ceasar to
Camp Lejune. We disagree.
As a threshold matter, we note that the complaint does not allege that the family told
Capt. Smith that Ceasar was a danger to Sallie, his family, or anyone else. Rather, at best,
the allegations indicate that (1) Ceasar’s family was gravely concerned “something could
happen,” J.A. 9 ¶ 20, (2) Ceasar’s family expressed concern to Capt. Smith about Ceasar’s
general behavior, actions, weapons possession, and agitated temperament, (3) Ceasar left
notes at Fort Benning indicating an intent to harm himself and others, and (4) Capt. Smith
was concerned regarding the information Ceasar’s family provided and the contents of
Ceasar’s notes. It does not follow from these allegations that Ceasar would murder
someone, much less a family member.
Further to that point, the timing of events in this case precludes a conclusion that
Sallie’s murder was foreseeable. Ceasar left Fort Benning in late March, first appeared at
a family member’s residence in early April and killed Sallie later that month. Over the
course of several weeks in April, Ceasar visited family members’ residences and rode to
the airport with family members on at least two occasions without incident. He also
repeatedly returned to his family in North Carolina each time he was sent to Georgia. Even
accepting that Ceasar’s behavior during that time was concerning, these facts do not allege
that he posed an immediate danger to his family, and certainly fall short of alleging that
any such danger was foreseeable.
Nonetheless, throughout his brief, Evans repeatedly contends that Capt. Smith knew
or should have known of the “immediate risk of harm” Ceasar posed to himself and others.
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See e.g. Opening Br. 22. On this basis, he urges this Court to distinguish Durden and apply the
district court’s rationale in Lumsden v. United States, 555 F. Supp. 2d 580, 582 (E.D.N.C. 2008).
In Lumsden, a Marine Corps private had a reputation among government agents for
inhaling ether, a chemical compound. Id. at 582. On one occasion, the Marine Corps
discovered that the private had inhaled ether that the Government had stored in his car. Id.
The government agents impounded the private’s car for several days before returning it to
the private with the ether still inside. Id. Sometime after receiving his car, the private
inhaled a “sufficient quantity” of the ether to become “extremely intoxicated.” Id. While
in an “extremely intoxicated” state, the private drove head-on into a vehicle killing one
passenger and severely injuring others. Id. The injured passengers filed suit alleging that
government agents were negligent in returning the car with the ether to the private knowing
of his propensity to abuse the compound. Id. at 583. The district court held that the
intentional tort exception was inapplicable because the plaintiffs’ claims were premised on
the agents’ actions, not the private’s actions or employment status. Id.
Evans’s reliance on Lumsden is misplaced. Unlike in Lumsden, the complaint here
does not allege that Capt. Smith knew that Ceasar desired to harm his family members or that
any of his previous conduct suggested that he did. There are also no allegations that Capt. Smith
knew Ceasar had a propensity to kill or harm others, or that Capt. Smith gave Ceasar the gun
used to kill Sallie knowing of any such propensity. Rather, as alleged, Capt. Smith, who was
repeatedly contacted by Ceasar’s family for assistance, offered a suggestion that would
allow the family to procure the relief they sought—Ceasar’s return to the Marine Corps’
custody. Thus, this case is unlike Lumsden. Under the circumstances in this case, although
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the Marine Corps had knowledge that Ceasar engaged in conduct that caused concern, the
facts do not plausibly allege that Sallie’s death was foreseeable to Capt. Smith.
VI.
For the foregoing reasons, we conclude that the district court erroneously dismissed
Evans’s wrongful death claim for lack of subject-matter jurisdiction. However, because
we have determined that the conclusion reached by the court below was proper, we affirm
the judgment on alternative grounds and dismiss the case for failure to state a claim.
AFFIRMED.
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QUATTLEBAUM, Circuit Judge, concurring in judgment:
I agree with much of the majority opinion. But to me, a recent Supreme Court
opinion, Brownback v. King, 592 U.S. 209 (2021), requires us to affirm regardless of
whether the district court treated the dismissal as one under Rule 12(b)(1) or Rule 12(b)(6).
In Brownback, the Supreme Court observed that the FTCA is unique in that “all elements
of a meritorious claim are also jurisdictional.” Id. at 217. The Court continued that “where,
as here, pleading a claim and pleading jurisdiction entirely overlap, a ruling that the court
lacks subject-matter jurisdiction may simultaneously be a judgment on the merits.” Id. at
218. Since the issues are one and the same, a court does not assume jurisdiction by
disposing of the case on the merits. Accordingly, the Court added:
In cases such as this one where a plaintiff fails to plausibly allege an element
that is both a merit element of a claim and a jurisdictional element, the district
court may dismiss the claim under Rule 12(b)(1) or Rule 12(b)(6). Or both.
The label does not change the lack of subject-matter jurisdiction, and the
claim fails on the merits because it does not state a claim upon which relief
can be granted. However, in other cases that overlap between merits and
jurisdiction may not exist. In those cases, the court might lack subject-matter
jurisdiction for non-merits reasons, in which case it must dismiss the case
under just Rule 12(b)(1).
Id. at 218 n.8. Following Brownback, I would not hold that the district court erred in
dismissing Evans’ complaint under Rule 12(b)(1) instead of under Rule 12(b)(6). Since I
would affirm the district court on its own terms and not on alternative grounds, I concur in
the judgment.
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