MACY LYNN HARGROVE v. PV HOLDING GROUP CAMPBELL STUBBS (2026)

ORDER SUBSTITUTING UNITED STATES AS DEFENDANT AND DISMISSING CLAIMS AGAINST THE UNITED STATES FOR LACK OF SUBJECT-MATTER JURISDICTION

This case is before the Court based on the United States' notice of removal, motion to substitute, and motion to dismiss (Doc. 1). Upon due consideration of this filing and its attachments, Plaintiff's response in opposition (Doc. 6) and its attachments, and the United States' reply (Doc. 9) and its attachments, the Court finds that the motions are due to be granted.

Background

This case arises out of a December 2023 motor vehicle accident involving Plaintiff and Defendant Campbell Stubbs. The vehicle that Stubbs was driving was a rental car owned by Defendant PV Holding Group.

In November 2025, Plaintiff filed suit against Stubbs and PV Holding Group in state court. In May 2026, the United States removed the case to this Court under 28 U.S.C. §§ 1442(a)(1) and 2679(d)(2) based on the United States Attorney's certification that Stubbs was a federal employee acting within the scope of his employment at the time of the accident.

The notice of removal included a motion to substitute the United States for Stubbs and a motion to dismiss the claims against the United States for lack of subject-matter jurisdiction. Plaintiff opposed substitution and argued that dismissal is “premature” without jurisdictional discovery and an evidentiary hearing because “the issue of whether the Defendant driver was acting within the scope of his employment at the time of the accident is a fact-intensive inquiry.” The United States replied that jurisdictional discovery is not needed because Plaintiff has no basis to oppose the United States Attorney's certification.

Analysis

When the United States Attorney ¹ certifies that a defendant employee was acting within the scope of his office or employment at the time of the pertinent incident, the “action ․ shall be deemed to be an action or proceeding brought against the United States” and “the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(2) (emphasis added); see also Omnipol, A.S. v. Multinational Def. Servs., LLC, 32 F.4th 1298, 1305 (11th Cir. 2022) (“Upon such certification, the employee is dismissed from the action and the United States is substituted in her stead.”). Thus, substitution is mandatory, and the action is deemed to be against the United States “unless and until the district court determines that the federal officer originally named as defendant was acting outside the scope of his employment.” Osborn v. Haley, 549 U.S. 225, 252 (2007).

The certification “conclusively establish[es] scope of office or employment for purposes of removal,” 28 U.S.C. § 2679(d)(2), but it “does not conclusively establish as correct the substitution of the United States as defendant in place of the employee,” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995). Thus, the Court has the authority to review de novo the correctness of the United States Attorney's scope-of-employment certification. Omnipol, 32 F.4th at 1305.

The certification is “prima facie evidence that the conduct at issue occurred within the scope of employment [and] the ‘burden of altering the status quo by proving that the employee acted outside the scope of employment is ․ on the plaintiff.’ ” Id. (emphasis in original) (quoting S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1543 (11th Cir. 1990)). Thus, “[t]he United States ․ must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment.” Osborn, 549 U.S. at 231 (emphasis in original); see also Mullane v. Moreno, 2025 WL 1386666, at *9 (11th Cir. May 14, 2025) (applying Osborn and instructing district court on remand to retain the United States as the defendant until the court decides “whether the relevant acts [outside the scope-of-employment] alleged by [the plaintiff] did in fact occur”) (emphasis in original).

In S.J. & W. Ranch, the Eleventh Circuit stated that the plaintiff challenging the certification should be “permit[ted] ․ full discovery on the scope[-of-employment] question” and that the Court should conduct a “de novo hearing” of the certification. See 913 F.2d at 1544 (footnote omitted). But in a subsequent decision, the Eleventh Circuit stated that “nothing mandates that a district court allow discovery and hold an evidentiary hearing before ruling on a section 2679 certification ․ where [the plaintiff] alleged no facts to support his contention that Defendants were acting outside the scope of their employment at the time of the alleged wrongdoing.” Glover v. Donahoe, 626 F. App'x 926, 930 (11th Cir. 2015) (emphasis in original) (affirming substitution under § 2679(d)(1) and denial of discovery); see also Omnipol, 32 F.4th at 1306 (affirming substitution under § 2679(d)(1) without discovery for similar reasons); accord Giordano v. Hohns, 159 F.4th 179, 201 (3d Cir. 2025) (affirming substitution under § 2679(d)(2) and denial of discovery where there was “no indication that [the] certification was based on any different understanding of the facts than that supported by the complaint”) (internal quotation marks omitted); White v. United States, 419 F. App'x 439, 443 (5th Cir. 2011) (affirming substitution under § 2679(d)(2) without discovery because the plaintiff's “speculative allegations” did not meet burden to plausibly suggest that the employee acted outside the scope of her employment); Singleton v. United States, 277 F.3d 864, 872 (6th Cir. 2002) (affirming substitution under § 2679(d)(2) without discovery where plaintiff “did not allege any facts in his complaint or in subsequent filings that, if true, would demonstrate that [the employee] was acting outside the scope of his employment”); Gutierrez de Martinez v. Drug Enf't Admin., 111 F.3d 1148, 1155 (4th Cir. 1997) (explaining that “mere conclusory allegations and speculation” are not enough to warrant discovery on the § 2679 certification and that the district court should not allow discovery if the plaintiff does not come forward with “specific evidence or the forecast of specific evidence that contradicts the Attorney General's certification decision”).

Here, the complaint does not allege any facts that might support a finding that Stubbs was acting outside the scope of his employment at the time of the accident, and Plaintiff did not proffer anything to rebut the certification beyond her speculation that discovery “could provide critical evidence for Plaintiff to establish that the defendant driver was not in the scope of his employment at the time of the accident.” Doc. 6 at 4 (first emphasis added). That speculation is not enough to permit discovery. See Omnipol, a.S. v. Worrell, 421 F. Supp. 3d 1321, 1339 (M.D. Fla. 2019) (denying discovery on § 2679 certification because plaintiffs relied on “mere ․ speculation” and did not “submit ‘specific evidence or the forecast of specific evidence that contradicts the Attorney General's certification decision’ ”) (quoting Gutierrez de Martinez, 111 F.3d at 1155), aff'd, 32 F.4th 1298 (11th Cir. 2022);² Castellanos v. Pfizer, Inc., 555 F. Supp. 2d 1343, 1347–48 (S.D. Fla. 2008) (denying discovery when the plaintiffs “failed to proffer facts likely to rebut the Certification”); Adigweme v. Dep't of Veteran Affs., 2025 WL 2697852, at *6 (M.D. Fla. Sept. 5, 2025) (denying discovery when plaintiff relied only on complaint's allegations and did not submit “specific evidence or the forecast of specific evidence” that would contradict the certification) (citation omitted), report and recommendation adopted, 2025 WL 2695247 (M.D. Fla. Sept. 22, 2025).

Moreover, based on the documents submitted by the United States with its reply,³ there is no reason to believe that discovery would show anything other than what the United States Attorney certified—i.e., that Stubbs was acting within the scope of his employment at the time of the accident. Thus, there is no need for discovery or an evidentiary hearing for the Court to determine that the certification was correct.

Based on the conclusion that the certification was correct, it follows that the United States (not Stubbs) was the proper defendant from the outset of the case. And because there is no question that the state court lacked subject-matter jurisdiction over the claims against the United States, this Court does not have “derivative jurisdiction” over those claims. Thus, as argued by the United States, the claims against it must be dismissed for lack of subject-matter jurisdiction.⁴ See Barrett v. U.S. Postal Serv., 2020 WL 2764265, at *2 (S.D. Fla. Feb. 10, 2020); Lindemann v. United States, 2026 WL 1825710, at *8 (S.D. Fla. June 24, 2026); Carnell v. Taha, 2026 WL 1657210, at *1–2 (N.D. Fla. May 8, 2026), report and recommendation adopted, 2026 WL 1652958 (N.D. Fla. June 8, 2026); Caballero v. United States, 2025 WL 2106683, at *2 (M.D. Fla. July 28, 2025). The claims against the other defendant will be remanded to the state court because there is no apparent basis for the Court to exercise federal jurisdiction over those claims.

Conclusion

In sum, for the reasons stated above, it is ORDERED that the United States' motions to substitute and dismiss (Doc. 1) are GRANTED, and:

1. The United States is SUBSTITUTED for Campbell Stubbs as a defendant under 28 U.S.C. § 2679(d)(2), and the Clerk shall update CM/ECF to reflect this change.

2. The claims against the United States are DISMISSED without prejudice for lack of subject-matter jurisdiction.

3. The claims against the other defendant are REMANDED to the Circuit Court for the First Judicial Circuit in and for Escambia County, Florida.

4. The Clerk shall close the case file.

DONE and ORDERED this 8th day of July, 2026.

FOOTNOTES

1.   The statute refers to the Attorney General, but the Attorney General's authority has been delegated to the United States Attorney for the district in which the action was brought. See 28 C.F.R. § 15.4.

2.   The Court recognizes that the Eleventh Circuit in Omnipol did not specifically decide what standard applies when determining whether to permit discovery with respect to the § 2679 certification, see Omnipol, 32 F.4th at 1310 (Jordan, J., concurring), but Plaintiff would not be entitled to discovery even under the more lenient standard used by the D.C. Circuit because the complaint does not allege any facts that, if true, would rebut the certification that Stubbs was acting within the scope of his employment. See Wuterich v. Murtha, 562 F.3d 375, 382 (D.C. Cir. 2009) (“[T]here is no right to even limited discovery in a Westfall Act case unless and until a plaintiff alleges sufficient facts to rebut the Government's certification.”); Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003) (“[T]o obtain discovery and an evidentiary hearing, [the plaintiff] need only have alleged sufficient facts that, taken as true, would establish that the defendants' actions exceeded the scope of their employment.”). For example, there are no allegations in Plaintiff's complaint or response that Stubbs was not in uniform or that the accident occurred at a time or place that might support an inference that he was not acting within the scope of his employment when it occurred. Moreover, even the “liberal pleading standard” on which the D.C. Circuit's standard for § 2679 discovery was based on requires more than speculative conclusory allegations to unlock the doors to discovery. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (“Rule 8 ․ does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”); Lazarre v. JPMorgan Chase Bank, N.A., 780 F. Supp. 2d 1320, 1329 n.16 (S.D. Fla. 2011) (explaining that discovery “is not intended to allow a plaintiff to go on a fishing expedition to see if the speculative complaint that he has filed has any basis in fact”) (citation omitted).

3.   The documents include a “memorandum for the record” from Stubbs' commanding officer explaining that Stubbs was in Pensacola performing his official duties as an active duty servicemember at the time of the accident, Doc. 9-1, and a sworn declaration from Stubbs explaining that he was “leaving NAS Pensacola and traveling to NAS Whiting Field” when the accident occurred, Doc. 9-2 at ¶4.

4.   The Court recognizes that there is a split of authority as to whether the doctrine of derivative jurisdiction applies in the context of removals under § 1442 and/or § 2679, but Plaintiff forfeited any argument that the doctrine does not apply in this case by not responding to the Government's argument that this case should be dismissed under that doctrine. See Jones v. Bank of Am., N.A., 564 F. App'x 432, 434 (11th Cir. 2014).

T. KENT WETHERELL, II UNITED STATES DISTRICT JUDGE