Matthews v. The United States of America

United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARCUS JOEL MATTHEWS, JR. §
v. : CIVIL ACTION NO. 3:25-CV-1410-S
UNITED STATES OF AMERICA :
MEMORANDUM OPINION AND ORDER
This Memorandum Opinion and Order addresses Defendant’s Motion to Dismiss, or
Alternatively, for Summary Judgment (“Motion”) [ECF No. 10]. The Court has reviewed the
Motion, Defendant’s Brief in Support of the Motion (“Defendant’s Brief’) [ECF No. 11],
Plaintiff's Response in Opposition to the Motion (“Response”) [ECF No. 15], Plaintiffs Brief in
Opposition to the Motion (“Plaintiff's Brief’) [ECF No. 16], Defendant’s Reply to the Motion
(‘Reply’) [ECF No. 21], and the applicable law. For the following reasons, the Court GRANTS
IN PART and DENIES IN PART the Motion. The Court DENIES Defendant’s Motion to
Dismiss, GRANTS Defendant’s Alternative Motion for Summary Judgment, and DENIES
Plaintiffs request for leave to amend his Complaint embedded in the Response.
I. BACKGROUND
This case arises out of an automobile accident involving Plaintiff Marcus Joel Matthews,
Jr., and Reynold Kevin Balgobin, an employee of U.S. Immigration and Customs Enforcement
(ICE”). Pl.’s Original Compl. (“Complaint”) [ECF No. 1] § 11, 13. At the time of the accident,
Balgobin was driving a vehicle owned by the U.S. government. Jd. 7 13. Plaintiff sued Defendant
the United States of America under the Federal Tort Claims Act (“FTCA”) for negligence under a
theory of respondeat superior, alleging that Balgobin was acting within the course and scope of his
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employment with ICE. /d. J 13-14. Defendant moves to dismiss Plaintiff's claim, or, in the
alternative, for summary judgment. Mot. 1.
Il. LEGAL STANDARD
A, Rule 12(6)(1)
“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by
statute, lack the power to adjudicate claims.” La. Real Est. Appraisers Bd. v. Fed. Trade Comm'n,
917 F.3d 389, 391 (Sth Cir. 2019) (quoting Texas v. Travis County, 910 F.3d 809, 811 (5th Cir.
2018)). Courts “must presume that a suit lies outside this limited jurisdiction, and the burden of
establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate
Ins. Co., 243 F.3d 912, 916 (Sth Cir. 2001) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511
USS. 375, 377 (1994)).
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may challenge the
subject matter jurisdiction of the district court to hear a case. The district court may dismiss for
lack of subject matter jurisdiction based on: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts and the court’s resolution of disputed facts. Ramming v. United States, 281 F.3d
158, 161 (Sth Cir. 2001) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (Sth Cir.
1996)). If the court determines that it lacks subject matter jurisdiction, it must dismiss the action.
Feb. R. Civ. P. 12(h)(3).
B. Rule 12(b)(6)
To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), a
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet this “facial plausibility” standard, a plaintiff
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must “plead{] factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). The court must accept well-pleaded facts as true and view them in the light most
favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir.
2007) (citation omitted). However, the court does not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780
(5th Cir. 2007) (citation omitted). A plaintiff must provide “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(citation omitted). “Factual allegations must be enough to raise a right to relief above the
speculative level .. . on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Jd. (citations omitted). At the motion to dismiss stage, the court does not evaluate
the plaintiff's likelihood of success. See Mann y. Adams Realty Co., 556 F.2d 288, 293 (5th Cir.
1977). It only determines whether the plaintiff has stated a claim upon which relief can be granted.
See id.
C. Rule 56
Courts “shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. Civ. P.
56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In making this determination,
courts must view all evidence and draw all reasonable inferences in the light most favorable to the
party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving
party bears the initial burden of informing the court of the basis for its belief that there is no genuine
issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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When a party bears the burden of proof on an issue, he “must establish beyond peradventure
all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v.
Upjohn Co., 780 F.2d 1190, 1194 (Sth Cir. 1986). When the nonmovant bears the burden of proof,
the movant may demonstrate entitlement to summary judgment either by (1) submitting evidence
that negates the existence of an essential element of the nonmovant’s claim or affirmative defense,
or (2) showing that there is no evidence to support an essential element of the nonmovant’s claim
or affirmative defense. Celotex, 477 U.S. at 322-25. Once the movant has made this showing, the
burden shifts to the nonmovant to establish that there is a genuine issue of material fact so that a
reasonable jury might return a verdict in its favor. Matsushita Elec. Indus. Co. v. Zenith Corp., 475
US. 574, 586-87 (1986). “[C]onclusory statements, speculation, and unsubstantiated assertions”
will not suffice to satisfy the nonmovant’s burden. RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857
(Sth Cir. 2010). The Court resolves factual controversies in favor of the nonmoving party “only
when an actual controversy exists, that is, when both parties have submitted evidence of
contradictory facts.” Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999) (citing
McCallum Highlands, Ltd. v. Wash. Cap. Dus, Inc., 66 F.3d 89, 92 (Sth Cir. 1995)).
Ilr. ANALYSIS
Defendant moves to dismiss, or, in the alternative, for summary judgment, because the
United States has not waived its sovereign immunity. “The United States has sovereign immunity
from any lawsuit, unless that sovereign immunity has been waived.” M.D.C.G. v. United States,
956 F.3d 762, 767-68 (Sth Cir. 2020). Relevant here, the FTCA waives sovereign immunity for
injuries “caused by the negligent .. . act or omission of any employee of the Government while
acting within the scope of his ... employment.” 28 U.S.C. § 1346(b)(1). Plaintiff bears the burden
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of showing a waiver of sovereign immunity. Freeman v. United States, 556 F.3d 326, 334 (Sth Cir.
2009).
The Court first considers whether it lacks subject matter jurisdiction and must dismiss
Plaintiff's claim under Federal Rule of Civil Procedure 12(b)(1). The Court next addresses whether
Plaintiff has stated a claim upon which relief can be granted under Federal Rule of Civil Procedure
12(b)(6). The Court then addresses Plaintiff's motion for leave to amend his Complaint. Finally,
the Court analyzes whether Plaintiff raises a genuine dispute of material fact such that Defendant
is not entitled to judgment as a matter of law.
A, Rule 12(6)(1)
Generally, a “court may dispose of a [Rule 12(b)(1) motion] based on (1) the complaint
alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” M.D.C.G., 956 F.3d at 768
(quotation marks omitted). But when a plaintiff brings a claim under the FTCA and “the issue of
jurisdiction is intertwined with the merits, district courts should deal with the objection as a direct
attack on the merits of the plaintiff's case under either Rule 12(b)(6) or Rule 56.” Id. at 768-69
(quotation marks omitted). “[W]hether a government employee was acting within the scope of his
employment under the FTCA” is an issue of jurisdiction intertwined with the merits. /d. at 769.
Therefore, “a [Rule] 12(b)(6) or summary judgment standard, not the Rule 12(b)(1) standard,
should be applied.” fd.
Because the question of whether Balgobin was acting in the scope of his employment at
the time of the accident is at issue here, the Court applies the Rule 12(b)(6) analysis.
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B. Rule 12(b)(6)
Plaintiff brings a negligence claim against the United States, alleging that it is vicariously
liable for Balgobin’s negligence under the doctrine of respondeat superior. Compl. { 14. According
to the Complaint, Balgobin made an unsafe lane change and struck Plaintiff's vehicle. Jd. 411.
Plaintiff alleges that the accident caused him “severe bodily injuries and damages.” Jd. 415.
Plaintiff asserts that “[t]he vehicle operated by Balgobin was a US Government vehicle,” and that
“Balgobin was in the course and scope of his employment with [ICE] at the time of the collision.”
Id, [ 13. Plaintiff seeks money damages. Jd. { 15.
A plaintiff invokes the FTCA’s waiver of sovereign immunity by pleading a claim that is:
[1] against the United States, [2] for money damages, [3] for... personal injury or
death [4] caused by the negligent or wrongful act or omission of any employee of
the Government [5] while acting within the scope of his office or employment,
[6] under circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where the act or
omission occurred.
Brownback vy. King, 592 U.S. 209, 212 (2021) (citation omitted). In Texas, “[u}nder the doctrine
of respondeat superior, an employer is vicariously liable for the negligence of ... an employee
acting within the scope of his... employment.” Baptist Mem’l Hosp. Sys. v. Sampson, 969 8.W.2d
945, 947 (Tex. 1998) (citation omitted), Texas law governs whether Balgobin was acting in the
scope of his employment. See Bodin v. Vagshenian, 462 F.3d 481, 484 (Sth Cir. 2006) (“The issue
of whether an employee is acting within the scope of his employment for the purposes of the FTCA
is governed by the law of the state in which the wrongful act occurred.””), An employee acts within
the scope of his employment when his conduct is within the scope of his general authority, in
furtherance of his employer’s business, and for the accomplishment of the object for which he was
hired. Goodyear Tire & Rubber Co. v. Mayes, 236 8.W.3d 754, 757 (Tex. 2007). Further, Texas
law recognizes a rebuttable presumption that an employee driving a vehicle owned by his employer
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is acting within the scope of his employment. Robertson Tank Lines, Inc. v. Van Cleave, 468
8.W.2d 354, 357 (Tex. 1971).
Defendant maintains that Balgobin was not acting within the scope of his employment
because he was on his way to a voluntary and discretionary lunch at the time of the accident. Def.’s
Br. 8-9. At the Rule 12(b)(6) stage this argument has no bearing on whether Plaintiff has
adequately alleged a cause of action because the Court only determines whether Plaintiff has stated
a claim upon which relief can be granted. See Mann, 556 F.2d at 293. Plaintiff alleges that Balgobin
was employed by ICE, driving a vehicle owned by Defendant, and acting within the scope of his
employment when he struck Plaintiff's vehicle. Taking those allegations as true and viewing them
in the light most favorable to Plaintiff, the Court concludes that Plaintiffs Complaint pleads
sufficient facts to establish a waiver of sovereign immunity under the FTCA and state a claim for
relief that is plausible on its face.
C. Leave to Amend the Complaint
Plaintiff seeks leave to amend his complaint instead of dismissal to allow him to assert a
claim for negligent entrustment against Defendant. Resp. 1. Plaintiff provides no details of his
proposed amendment other than to say that the FTCA “permits direct negligence theories against
the government, including negligent entrustment of a vehicle to an employee known or should
have been known as an unsafe driver.” Pl.’s Br. 6. Plaintiff presents no factual allegations in
support of his proposed claim. “A bare bones motion to amend remains futile when it fails to
apprise the district court of the facts that [the plaintiff] would plead in an amended complaint.”
Edionwe vy. Bailey, 860 F.3d 287, 295 (5th Cir. 2017) (cleaned up). Therefore, Plaintiff's
amendment is futile.
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In addition, Plaintiff's claim would be barred by the discretionary function exception to the
FTCA. The discretionary function exception is a “form of retained sovereign immunity,” Freeman,
556 F.3d at 335, that applies to “[a]ny claim ... based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of... an employee of
the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). An act
is not a discretionary function if a “federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow.” United States v. Gaubert, 499 U.S. 315, 322 (1991).
Claims of negligent entrustment and supervision against the United States are generally barred by
the discretionary function exception. See, e.g., Guile v. United States, 422 F.3d 221, 231 (Sth Cir.
2005) (supervision of a contractor is a discretionary function); Walding v. United States, 955 F.
Supp. 2d 759, 782 (W.D. Tex. 2013) (“[D]ecisions relating to hiring, training, and supervision of
employees usually involve policy judgment of the type Congress intended the discretionary
function exception to shield.”); Leavitt v. City of El Paso, No. EP-99-CA-76-EP 2000 WL
33348224, at *6 (W.D. Tex. Jul. 10, 2000) (applying the discretionary function exception to a
claim of negligent entrustment against the United States).
Plaintiff cites two cases to support his position that a negligent entrustment claim is viable
under the FTCA. Resp. 6-7. Neither case addresses negligent entrustment or direct liability within
the context of the FTCA.! Therefore, PlaintifP's proposed amendment is also futile because he
proposes to amend his complaint solely with a claim to which the United States is immune.
' Plaintiff cites Williams v. United States, 71 F.3d 502 (5th Cir. 1995), and Fuller v. Biggs, 532 F. Supp. 3d
371 (N.D. Tex. 2021). Williams addressed whether a Member of Congress was acting within the scope of
his employment when he allegedly defamed another individual. Fuller addressed direct negligence claims
against a private defendant (not the Government) in the context of the Graves Amendment, 49 U.S.C.
§ 30106(a). Both cases are inapposite here.
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D. Rule 56
Although Plaintiff pleaded sufficient facts to state a claim for relief, he fails to raise a
genuine dispute of material fact such that Defendant would not be entitled to judgment as a matter
of law. In the Declaration of Bradley K. Volkmer (“Declaration”) [ECF No. 12-1] in support of
Defendant’s Motion,? Volkmer states that he is aware of the facts and details surrounding
Balgobin’s accident. Decl. { 4. Volkmer further states that he is an Instructor at the ICE Leadership
Development Center in Irving, Texas; that Balgobin was a student attending Volkmer’s training
course; and that students are “provided a voluntary lunch break ... to use at their discretion.
[Students] are afforded the option but are not required to leave the training facility during the
break.” Id. ff 1, 5. According to Volkmer, “the incident occurred while [Officer] Balgobin was en
route to lunch from the training” and Balgobin was driving a government-owned vehicle at the
time of the accident. Jd. | 7. These facts are undisputed.
Under Texas law, the “coming-and-going rule” provides that an employee traveling to or
from work or otherwise deviating from the employer’s objectives is not acting within the scope of
his employment. Painter v. Amerimex DrillingI, Lid., 561 S.W.3d 125, 136 (Tex. 2018). Further,
evidence that an employee was coming or going from work is sufficient to rebut the presumption
that an employee driving an employer-owned vehicle is acting in the scope of his employment.
EAN Holdings, LLC v. Arce, 636 8.W.3d 290, 296 (Tex. App.—Fort Worth 2021, pet. denied).
Under the coming-and-going rule, an employee taking advantage of a voluntary lunch break, even
in an employer owned vehicle, deviates from the employer’s objectives and is not within the scope
of employment. Williams v. B&B Elec. & Util. Contractors, Inc., No. 2:19-cv-00325, 2022 WL
? An unsworn declaration made under penalty of perjury, like Volkmer’s, is competent summary judgment
evidence. 28 U.S.C. § 1746.
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6600973, at *3 (S.D. Tex. Feb. 7, 2022); see generally Garcia v. United States, 88 F.3d 318, 321
(Sth Cir. 1996).
Plaintiff introduces no evidence to dispute the facts outlined in the Declaration. Instead,
Plaintiff argues that the special-mission exception to the coming-and-going rule applies. Pl.’s
Br. 4. The “special-mission exception to the coming-and-going rule may apply when ‘travel
involves the performance of regular or specifically assigned duties for the benefit of the
employer.” Cameron Int'l Corp. v. Martinez, 662 S.W.3d 373, 376 (Tex. 2022) (quoting
Amerimex Drilling, 561 S.W.3d at 139).
Plaintiff alleges that the training seminar was a special assignment and that Balgobin was
away from his ordinary workplace. Pl.’s Br. 4-5 (citing Decl. 4 5). Plaintiff argues that, because
Balgobin was “on a temporary duty assignment” and “was not commuting for personal purposes,”
the special-mission exception applies. Jd. Generally, however, personal travel undertaken while
on a special mission is considered outside the scope of employment. Garcia, 88 F.3d at 321 (“If
found to be on a special mission, the employee will be considered to be in the course and scope of
his employment until its termination, absent any deviation therefrom for personal reasons.”). Even
assuming, arguendo, that Balgobin was on a “special mission” while he attended training, his
voluntary lunch break was a personal deviation and outside the scope of his employment. See, e.g.,
Williams, 2022 WL 6600973, at *4 (holding that an employee on his lunch break from a special
mission served “no employment purpose” during his drive back to work after lunch).
Plaintiff also argues that the dual-purpose rule or personal comfort doctrine applies because
Balgobin was “driving fellow ICE employees to lunch while on mandatory training” and that
“obtaining meals during the workday is incidental to employment.” Pi.’s Br. 3. “[D]ual-purpose
travel” is in the course and scope of employment “when the employee’s travel would have been
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made notwithstanding the employee’s personal reasons and would not have been made without a
business reason.” Orozco v. County of El Paso, 602 8.W.3d 389, 396 (Tex. 2020). The
dual-purpose rule, however, applies in the worker’s compensation context, not the vicarious
liability context. Berry v. Golla, No. H-7-2629, 2018 WL 1453275, at *4-5 (S.D. Tex. Mar. 23,
2018), aff'd sub nom. Berry v. Missionaries of Co. of Mary, Inc., 770 F. App’x 716 (Sth Cir. 2019)
(“Neither party has cited, nor has the court found, cases applying the ‘dual purpose’ rule from the
worker’s compensation context to a claim of vicarious liability.”). The “statutory provisions of
[the worker’s compensation statute] do not dictate the outcome of this common law negligence
case.” Painter v. Sandridge Energy, Inc., 511 8.W.3d 713, 725 (Tex. App.—El Paso 2015, pet.
denied).
“The personal comfort doctrine” provides that “[e]mployees who . . . engage in acts which
minister to personal comfort do not thereby leave the course of employment.” Emps.’ Cas. Co. v.
Bratcher, 823 §.W.2d 719, 721 (Tex. App.—El Paso 1992, writ denied). However, that doctrine
also applies only in the worker’s compensation context. Yeldell v. Holiday Hills Ret. & Nursing
Ctr., Inc.,701 S.W.2d 243, 245 (Tex. 1985) (explaining that, because “the Workers’ Compensation
Act should be liberally construed in favor of the employee,” injuries sustained while a worker
engages in acts of personal comfort arise in the course and scope of employment and are thus
compensable). All but one of the cases Plaintiff cites in support of the personal comfort doctrine
are in the context of worker’s compensation. Plaintiff does not cite any case that extends the
personal comfort doctrine from the worker’s compensation context to the vicarious liability
context.?
3 Plaintiff also cites Baker v. United States, 17 F. Supp. 2d 592, 596 (N.D. Tex. 1998). No such case exists.
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Plaintiff also cites Best Steel Buildings, Inc. v. Hardin, 553 8.W.2d 122 (Tex. App. —Tyler
1977, writ ref'd n.1.e), for the proposition that “Texas law recognizes that activities necessary for
personal comfort, such as obtaining meals, remain incidental to employment.” PI.’s Br. 3. In Best
Steel, the court, in upholding a jury finding that the driver of a vehicle was acting in the scope of
his employment at the time of an automobile accident, noted that “[t]here is no evidence that [the
driver] transacted any business of his own on the trip.” 553 S.W.2d at 128. However, the court
continued, “[e]ven had it been established that [the driver] attended to some personal business or
visited his family while on the trip, if... he was directed to make the trip in furtherance of the
affairs of his employer, he would nevertheless be in the course and scope of his employment.” id.
This statement is not in line with the law as described by the Texas Supreme Court in Amerimex
Drilling that “an employer is not responsible for what occurs when an employee deviates from the
performance of his duties for his own purposes... even if the deviation occurs with the employer’s
express or implied permission.” 561 S.W.3d at 137 (citation omitted). And as discussed above,
Plaintiff does not cite, and the Court is not aware of, any case holding that an employee on a
voluntary lunch break is engaged in an act otherwise within the service of his employer in the
vicarious liability context.
Under the coming-and-going rule, then, Balgobin was not acting in the scope of his
employment with ICE at the time of the accident. Therefore, the United States has not waived its
sovereign immunity under the FTCA and is immune from this suit.
IV. CONCLUSION
Viewing all evidence and drawing all reasonable inferences in the light most favorable to
Plaintiff, the Court holds that Defendant is entitled to summary judgment on Plaintiff's claim
because Defendant has demonstrated that there is no genuine dispute as to any material fact in this
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case. For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Motion to Dismiss, or Alternatively, for Summary Judgment [ECF No. 10]. The Court
DENIES Defendant’s Motion to Dismiss, GRANTS Defendant’s Alternative Motion for
Summary Judgment, and DENIES Plaintiffs request for leave to amend his Complaint embedded
in the Response. This case is DISMISSED WITH PREJUDICE.
Neve Qh __
KAREN GREN SCHOLER
UNITED STATES DISTRICT JUDGE
SO ORDERED.
SIGNED January 8, 2026.
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