# Owens v. United States

> District Court, E.D. Missouri · June 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10233289

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** June 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233289

## How later opinions describe it (automated extraction)

- finding employee not within the scope of his employment when the employee went on a personal errand three miles out of the way of where he needed to go to deliver a letter for his employer and he had not yet returned to the point of deviation at the time of the accident
- finding employee not in the scope of his employment when he deviated from his normal route to pick up his son and the accident occurred on his way to pick up his son
- finding employee outside the scope of his employment in part because he was not given permission to use the vehicle for his own personal pleasure or that of his friends

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES OWENS, )
)
Plaintiff, )
)
v. ) Case No. 4:18-CV-01721-NCC
)
UNITED STATES OF AMERICA )
and BENJAMIN HARRIS, )
)
Defendants. )

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Benjamin Harris’ Petition for Certification
of Scope of Employment (Doc. 24) and Defendant United States of America’s interrelated
Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 29). The Petition and the
Motion are fully briefed and ready for disposition.1 The parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C.
§ 636(c) (Doc. 13). For the following reasons, Defendant Benjamin Harris’ Petition will be
DENIED, and Defendant United States of America’s Motion will be GRANTED.
I. Background
On November 9, 2018, Plaintiff James Owens (“Owens” or “Plaintiff”) filed his First
Amended Complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., against
Defendant United States of America (“United States”) (Count I) and for negligence under
Missouri state law against Defendant Benjamin Harris (“Harris”) (Count II) alleging Harris, a
United States Postal Service (“USPS”) employee, injured Owens in a motor vehicle accident

1 Defendant Harris has not filed a reply to Defendant United States’ opposition to the
Petition and the time to do so has elapsed. See E.D. Mo. L.R. 4.01.
while driving a USPS vehicle on June 1, 2016 (Doc. 5). Specifically, the record shows Harris
was employed as a City Carrier for the USPS and was assigned 63028 City Route 02 (the “Postal
Route”), a mixed route with commercial and residential addresses requiring driving, parking, and
walking (Doc. 7 at ¶5; Deposition of Benjamin Harris at 10:16-21, Docs. 28-1, 30-1, 32-10, 34-
10 (hereinafter “Harris Depo.”); Deposition of Richard Finch at 137:12-138:6, Docs. 25-1, 28-2,

30-2, 32-1, 34-1 (hereinafter “Finch Depo.”)). At 1:15 p.m., Harris, in the operation of his postal
vehicle, was involved in an accident at 501 Maple Street (PS Form 1769/301 Accident Report,
Docs. 25-6, 32-6, 34-6 (hereinafter “Accident Report”)).
At the time of the accident, the following was the relevant practice and procedure of the
USPS. The USPS designs delivery routes such that the workload for each route fills an 8-hour
workday for the postal carrier (or “carrier”) assigned to the route and that there is no excessive
undertime or overtime on the route, as the USPS strives for “an equitable and feasible division of
the work among all of the carrier routes assigned to a [post] office” (USPS Handbook M-39:
Management of Delivery Services, at 242.122, 243.22, Docs. 28-3, 30-3 (hereinafter “USPS
Handbook M-39”)).2 Each route is also analyzed at least once a year to ensure that it remains as

close to an 8-hour workday for the assigned carrier as possible (USPS Handbook M-41: City
Delivery Carriers Duties and Responsibilities, at 912, 918.1, Docs. 28-4, 30-4 (hereinafter
“USPS Handbook M-41”)). The analysis involves a management official accompanying a
carrier on the carrier’s assigned route and recording data about when, among other things, the

2 USPS Handbook M-39 provided by Defendant United States indicates an effective date
of June 2019, nearly three years after the accident underly this action. However, the parties do
not dispute the wording or the applicability of the provisions of the Handbook as cited herein.
Indeed, the Handbook was admitted as an exhibit and referenced without any objection during
the deposition of Richard Finch (Finch Depo. 67:25-68:1). Thus, the Court will cite to the

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carrier left the post office, arrived at the first delivery point, arrived at each address on the route,
took 10-minute breaks, took a lunch, went to the restroom, and returned to the post office after
all mail was delivered (See USPS Inspection of Letter Carrier Route, B.S. Harris, September 23,
2015, Docs. 28-8, 30-8, 32-11, 34-11). Each route has a prescribed delivery order (USPS
Handbook M-39 at 125.3). Specifically, “[c]arriers are required to follow their authorized lines

of travel at all times” (Id.). Carriers are required to sort their assigned mail in accordance with
the delivery order before they leave the Post Office in the morning, and then they are required to
deliver that mail in that prescribed order unless authorized to deliver differently (USPS
Handbook M-39 at 125.1, 125.25, 125.3; Finch Depo. at 13:22-15:13). Carriers may not loiter or
stop to converse unnecessarily on their route (USPS Handbook M-41 at 112.28). Additionally,
carriers are instructed, “Do not deviate from your route for meals or other purposes unless
authorized by your manager or if local policies concerning handling out of sequence mail permit
minor deviations” (USPS Handbook M-41 at 131.31). Carriers are “required to follow their
authorized lines of travel at all times. On motorized routes this includes travel to and from: the

route, authorized lunch locations, break locations, refueling locations, collection boxes, and on
the route” (USPS Handbook M-39 at 125.3). Further, carriers are prohibited from using their
assigned postal vehicles for personal use (USPS Handbook M-39 at 125.3; USPS Handbook M-
41 at 112.28, 131.31, 131.32; Finch Depo. at 159:2-7).
The USPS break policy is as follows. Carriers are allowed two types of work breaks each
day in addition their 30-minute lunch break (Finch Depo. at 89:2-91:3). First, they are allowed
unlimited “comfort breaks” (Finch Depo. at 89:17-90:1). The USPS does not have a formal or

version of Handbook M-39 provided by Defendant United States.

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written definition of the term “comfort break.” At his deposition, Finch explained that “a
comfort stop includes using the restroom or getting a drink to cool down. Comfort is what it’s
for” (Finch Depo. at 89:14-16; 90:11-15). “Reasonable comfort stops will not be deducted from
the carrier’s actual time” (USPS Handbook M-19 at 242.341). Second, City Carriers are
permitted two 10-minute “personal breaks” per day. The two 10-minute breaks, if taken on the

street, must be taken separate from each other and separate from the lunch period (Id.). Each
City Carrier is required to designate two locations they would like to use for such breaks (Finch
Depo. at 92:15-19). Owens’ residence, 501 Maple Street, was an authorized break location for
Harris (Finch Depo. at 94:15-23; Route Base Information, Docs. 25-9, 28-5, 30-5, 32-9, 34-9).
The USPS does not require the personal breaks to be taken at any particular time of day (Finch
Depo. at 94:23-95:8). Carriers record on PS Form 1564-A, Delivery Instructions, the
approximate location of their breaks (USPS Handbook M-39 at 242.341).
Harris testified that that the practice at the Festus Post Office did not align with the USPS
Handbooks. Specifically, Harris stated that postal employees used their personal breaks for a

variety of personal matters, including making trips to Walmart, going home, and going tanning
(Harris Depo. at 54:14-24). In fact, during a route supervision, Harris was allowed to take his
two ten-minute breaks in non-authorized break locations and was not reprimanded for his choice
of locations (Harris Depo. at 91:5-92:24; Notice of Proposed Removal, Docs. 25-2, 25-8, 28-7,
30-7, 32-2, 32-8, 34-2 (hereinafter “Notice of Proposed Removal”)). Finch testified at his
deposition that, the Carriers will “move [their break] a little bit based on how fast they are, so
they might move a location of where they’re taking their break, but they don’t go back to where
they already delivered. We don’t allow deviation to go back to where you already delivered”

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and “[I]t’s as you deliver. You can’t just go back to it as a break if you’ve already delivered
there. That’s deviating” (Finch Depo. at 128:5-7, 135:2-12). Finch further testified that that he
“[n]ever disciplined an employee for taking a break at a non-assigned break location” or going
over their two ten-minute breaks in a day (Finch Depo. at 96:14-20, 124:19-125:2, 135:13-20;
Harris Depo. 89:8-11).

On a normal day, Harris would be on the street delivering mail between 8:00 and 9:00
a.m. depending on the amount of mail assigned to him for delivery (Harris Depo. at 16:23-17:1).
On Saturdays, Harris would take all the mail to Crystal City for their P.O. Boxes as “they want
their mail at 8:30, so sometimes I – 8:20, 8:25 so I can get them their mail on time” (Harris
Depo. at 17:2-6). Harris would also sometimes change the order of delivering mail on his Postal
Route because, if he got out early, some of the business were not yet open so he would deliver
the residential mail first (Harris Depo. at 17:24-18:5). When this occurred, Harris sought
authorization from his supervisor if he intended on backtracking on his Postal Route because “I
did it to cover me. That way there’s no questions asked” (Harris Depo. at 19:10-20:4).

The USPS uses GPS technology to track movements of its carriers. The GPS Data for
Harris on June 1, 2016, reveals the following. Harris arrived at 406 S. Adams Street, his first
delivery location, at approximately 8:26 a.m. At approximately 8:51 a.m., Harris delivered mail
to Owens at 501 Maple Street, Apt. A. Harris continued delivering mail along his Postal Route
including the following specifically relevant events.
Time Location/Activity
10:07 a.m. – 10:17 a.m. Bathroom break.
10:32 a.m. – 10:43 a.m. Vehicle was parked while Harris rearranged
packages in his van for future delivery.
11:10 a.m. – 11:25 a.m. Harris took a break at Mueller Street and

5
Schumer Street (“Third Event”).
12:50 p.m. – 1:00 p.m. Harris completed a delivery to 204 Briar Ridge
as part of his normal route and then drove to a
nearby K-Mart to pick up some items (“Fourth
Event”).
1:00 p.m. – 1:09 p.m. Harris drove from the K-Mart to a Mobil gas
station/convenience store and bought a drink
(“Fifth Event”).
1:09 p.m. – 1:15 p.m. Harris stopped at 501 Maple Street (“Sixth
Event”).
1:15 p.m. The accident occurred.

(GPS Data for B. Harris, June 1, 2016, Docs. 25-3, 28-9, 30-9, 32-3, 34-3 (hereinafter “GPS
Data”); Notice of Proposed Removal).
The parties dispute the characterizations of the Third, Fourth, Fifth, and Sixth Events.
The following are the facts regarding these specific events. At 11:10 a.m., Harris took a 15-
minute break at Mueller Street and Schumer Street (the “Third Event”) (Notice of Proposed
Removal at 3). As a part of the accident investigation, Finch asked Harris to explain his
stationary events including this one. Finch’s recollection was that Harris “replied that this was
an actual break because there is such a big hill and it was such a hot day that day and that you sat
in your van and cooled off. You continued to state that you did not realize that you extended
your break by five (5) minutes” (Id.). However, Harris testified during his deposition that this
break was a comfort stop (See Harris Depo. at 77:23-78:2). Next, Harris completed a delivery to
204 Briar Ridge as part of his normal route and then drove to a nearby K-Mart to pick up some
items (the “Fourth Event”). In addition to using the restroom, it is undisputed that Harris decided
to run a personal errand and “go grab some dog food for [Owens] to help them out, kind of be
kind and nice” (Harris Depo. 37:24-38:2). Harris then drove from the K-Mart to a Mobil gas

6
station where he purchased a soda (the “Fifth Event”) (GPS Data; Notice of Proposed Removal).
From the Mobil gas station, Harris drove to Owens’ apartment and arrived there at 1:09 p.m.
(GPS Data; Notice of Proposed Removal). At approximately 1:15 p.m., Harris was in his postal
vehicle leaving Owens’ apartment to head back to Festus Garden Apartments, to resume
delivering mail (GPS Data; Notice of Proposed Removal). See also Harris Depo. at 68:10-14 (Q.

And then, after you dropped off the dog food, that’s when you were going to start delivering
your mail again? A. Yeah. I was going back to the route, to the apartments.”). Harris had his
vehicle in drive instead of reverse and drove into Owens, knocking him through his apartment’s
exterior wall (GPS Data; Notice of Proposed Removal). At the time of the accident, Mr. Harris
was ahead of his schedule for the day (Finch Depo. at 117:20-24).
Harris had previously taken breaks at Owens’ apartment at about this time but was never
disciplined or reprimanded for doing so (Finch Depo. at 96:14-20, 124:19-125:2; Harris Depo. at
89:8-18). Harris had also previously run errands for Owens during work hours (Finch Depo. at
96:14-20, 124:19-125:2, 135:13-20; Harris Depo. at 53:11-16, 89:8-18). Finch, Harris’

supervisor, testified that he did not know that Harris was stopping to take cigarette breaks at
Owens’ residence and only became aware of Harris’s relationship with Owens after the accident
(Finch Depo. at 51:18-23, 86:25-87:7). Harris testified that he never advised a supervisor that he
ran errands for Owens while on his breaks because he was on his “personal break” and “chose to
help someone out on my break” believing he could drive his postal vehicle to run errands during
his break (Harris Depo. at 54: 5-13). Finch testified that the Postal Service only checks the GPS
data if a carrier is consistently taking longer to deliver mail than is warranted by the mail volume
(Finch Depo. at 17:8-21). Finch stated he did not have a habit of checking Harris’ GPS data

7
from his routes prior to the accident at issue as Finch described Harris as “a hard worker…He
always did his route within the time he was supposed to” (Finch Depo. at 24:7-25).
Finch, as Harris’ supervisor, conducted an investigation into the accident on behalf of the
USPS. Following the investigation, the USPS served Harris with a “Notice of Proposed
Removal.” The basis for the proposed termination was “deviation from your assigned route

without authorization” and “failure to operate your vehicle in a safe manner” (Notice of
Proposed Removal). Harris ultimately received a 14-day suspension because of the accident for
1) deviation from his assigned route and 2) failure to operate his vehicle in a safe manner
(Grievance Settlement, Docs. 28-10, 30-10). Finch determined that Harris “was not acting in the
scope of his employment at the time [of the accident]. He was not where he was supposed to be.
And he was in an accident in a location that he shouldn’t have been in the first place” (Finch
Depo. at 148:3-7).
Harris now petitions this Court to certify, pursuant to 28 U.S.C. § 2679(d)(3), that he was
acting within the scope of his employment at the time of the accident, and to dismiss him from

this case. Defendant moves the Court to decline certification and to dismiss the claims against
the United States for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure.
As a preliminary matter, Harris seeks an evidentiary hearing in this matter pursuant to
local rule 4.02 (Doc. 24 at 2). Local rule 4.02 states, in relevant part, that “[a] party requesting
the presentation of oral argument or testimony in connection with a motion shall file such a
request with its motion or memorandum briefly setting forth the reasons which warrant the
hearing of oral argument or testimony.” Harris has not set forth any reasons supporting his

8
request for an evidentiary hearing. Regardless, although it may be necessary for the Court to
conduct an evidentiary hearing to resolve the scope-of-employment issue, a hearing is not
required in every case. Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir. 1996) (citing Brown v.
Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991)). An evidentiary hearing should be held if there
are material fact issues in dispute. Brown, 949 F.2d at 1012. The Court finds that an evidentiary

hearing is not warranted in this action as there are not any material facts in dispute. See
McAdams v. Reno, 64 F.3d 1137, 1145 (8th Cir. 1995).
II. Analysis
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). Subject matter jurisdiction is the power of a federal court to
decide the claim before it. Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 562 (2017). To
dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), “‘the
complaint must be successfully challenged on its face or on the factual truthfulness of its
averments.’” Swiish v. Nixon, No. 4:14-CV-2089 CAS, 2015 WL 867650, at *2 (E.D. Mo. Feb.

27, 2015) (quoting Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993)). “Where, as here, a party
brings a factual attack, a district court may look outside the pleadings to affidavits or other
documents.” Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018) (citation omitted). In a
factual attack “the party invoking federal jurisdiction must prove jurisdictional facts by a
preponderance of the evidence.” Id. Further, Plaintiff bears the burden of proving jurisdiction
exists. Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019) (citation omitted). Finally,
“[i]t is to be presumed that a cause lies outside [of the Court’s] limited jurisdiction, and the

9
burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511
U.S. at 377 (citations omitted).
The Federal Tort Claims Act (“FTCA”) “confers federal-court jurisdiction in a defined
category of cases involving negligence committed by federal employees in the course of their
employment.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 484 (2006); see also 28 U.S.C.

§ 1346(b)(1). “A waiver of sovereign immunity is strictly construed in favor of the United
States, and the party bringing suit bears the burden of demonstrating waiver.” May v. United
States, No. 17-04157-NKL, 2017 WL 6419298, at *2 (W.D. Mo. Dec. 15, 2017) (citations
omitted). A party bringing suit against the United States therefore bears the burden of proving
that the government has unequivocally waived its immunity. Vardiman v. United States, No.
4:17CV2358 RLW, 2020 WL 109464, at *3 (E.D. Mo. Jan. 9, 2020). “A threshold requirement
to establish jurisdiction under the FTCA is that the federal employee must have been acting
within the scope of his employment when the tort was committed.” See Primeaux v. United
States, 181 F.3d 876, 878 (8th Cir.1999) (“In determining the extent of the government’s FTCA

liability, ‘scope of employment’ sets the line.”) (quoting Gutierrez de Martinez v. Lamagno, 515
U.S. 417, 423 (1995)). The law of the place of the alleged tort governs the scope-of-employment
question. Williams v. United States, 350 U.S. 857, 857 (1955); Richards v. United States, 369
U.S. 1, 10 (1962); St. John v. United States, 240 F.3d 671, 676 (8th Cir. 2001). Here, the parties
do not dispute that Missouri law applies (Doc. 25 at 5; Doc. 28 at 6-7; Doc. 34 at 2-3).
Under Missouri law, the scope-of-employment inquiry is focused, “not [on] the time or
motive of the conduct, but rather [on] whether the act was done by virtue of the employment and
in furtherance of the business or interest of the employer.” Ewing-Cage v. Quality Prods., Inc.,

10
18 S.W.3d 147, 150 (Mo. Ct. App. 2000) (citation omitted). Specifically, “[a]n act is within the
course and scope of employment if (1) even though not specifically authorized, it is done to
further the business or the interests of the employer under her general authority and direction and
(2) it naturally arises from the performance of the employer’s work.” Higgenbotham v. Pit Stop
Bar & Grill, LLC, 548 S.W.3d 323, 328 (Mo. Ct. App. 2018). “If the act is naturally incident to

the employer's business . . . it is done while engaged in the employer’s business.” Ewing-Cage,
18 S.W.3d at 150 (citation omitted). Therefore, for an employer to be liable, the employee’s
negligent or wrongful conduct must not “arise wholly from some external, independent, or
personal motive.” H.R.B. v. J.L.G., 913 S.W.2d 92, 97 (Mo. Ct. App. 1995) (citation omitted).
In cases involving motor vehicles, Missouri case law affords a rebuttable presumption
that the driver of another’s vehicle is acting within the course of employment. Wills v. Townes
Cadillac-Oldsmobile, Inc., 490 S.W.2d 257, 259-60 (Mo. 1973). The presumption arises by
showing that the defendant owned or controlled the motor vehicle and that the driver of the
vehicle was in the general employ of the defendant. Johnson v. Bi-State Dev. Agency, 793

S.W.2d 864, 867 (Mo. 1990). Defendant United States concedes that the presumption applies in
this instance (Doc. 28 at 6). “This presumption disappears only when the defendant introduces
substantial controverting evidence” that the use of the vehicle at the time was not for the purpose
of furthering the employer’s business interests in some fashion. Ewing-Cage, 18 S.W.3d at 150
(citation omitted). “But if there be other evidence, it may aid that required to raise the
presumption, and the whole considered together sometimes may be sufficient to support the
necessary valid inference, even though the presumption has been overcome by defendant's
evidence.” Snead v. Sentlinger, 327 S.W.2d 202, 205 (Mo. 1959) (emphasis in original)

11
(citations and internal quotation marks omitted).
Using an employer-owned vehicle outside of authorize parameters may be sufficient to
rebut the scope of the presumption. See Speidel v. Kellum, 340 S.W.2d 200, 203 (Mo. App.
1960) (finding employee outside the scope of his employment in part because he was not given
permission to use the vehicle for his own personal pleasure or that of his friends). Generally, an

employee’s authorized breaks are considered within the scope of his employment. See Williams
v. Transpo Int’l, Inc., 752 S.W.2d 501, 504 (Mo. Ct. App. 1988) (addressing comfort or
convenience breaks to satisfy a personal bodily need in the context of workers’ compensation).
Even if a deviation is not authorized, an employee will be considered to be acting in the scope of
his employment if the deviation is minor. Am. Family Mut. Ins. Co. v. Arnold Muffler, Inc., 21
S.W.3d 881, 883 (Mo. Ct. App. 2000). The so-called “minor deviation rule” states that if the use
made by an employee is not such a gross, substantial, or major violation, even though it may
have amounted to a deviation, the deviation will be considered immaterial. Id. “In determining
whether a violation is minor or material, the court must consider the extent of the deviation in

actual distance or time and the purpose for which the vehicle was given.” Id. “In addition, even
if there is a deviation, if the employee has returned to his or her employer’s business and to a
point where in the performance of duties he or she is required to be, there may be coverage.” Id.
Plaintiff and Defendant Harris have failed to meet their burden to establish that
Defendant Harris was acting within his scope of employment at the time of the accident.
Defendant Harris did not have permission to use his postal vehicle to effect the stops at K-Mart,
Mobil, and Owens’ residence. Even if the Court were to construe the three stops, as asserted by
Plaintiff and Defendant Harris, as Harris’ first two personal breaks of the day separated by an

12
authorized comfort stop, both personal stops violated USPS guidelines. The USPS Handbooks
are explicit in their limitations regarding vehicle use and deviation. Specifically, USPS
Handbooks prohibit the use of the postal vehicle for personal use. Guidelines also regiment a
carrier’s route and delivery order such that deviations and backtracking, without prior
authorization, are not permitted. Postal carriers are additionally prohibited from loitering or

stopping to converse unnecessarily on their route. The evidence here indicates that Defendant
Harris deviated from his route without authorization using his postal vehicle to run a personal
errand for a friend.
Plaintiff and Defendant Harris argue that the practice and procedure of the Festus Post
Office was such that Harris had implied permission to use his postal vehicle to run this personal
errand and to take a break at Owens’ home because carriers at the Festus Post Office, including
Harris, had not previously been disciplined for previous similar action despite the GPS tracking
of their vehicles. However, GPS tracking is not sufficient to establish authorization. In fact,
GPS data was only reviewed as necessary if there was a reason to believe that a carrier was not

performing his duties. When USPS learned of Harris’ break behavior after the accident, he was
disciplined for his deviation in addition to the accident itself. Shelter Mut. Ins. Co. v. See, 46
S.W.3d 65, 68 (Mo. Ct. App. 2001), as modified (May 29, 2001) (finding driver did not have
“implied permission” to use the vehicle to see his friends or to work when owner did not know
about these uses and reprimanded driver when he subsequently learned of these incidents). The
USPS did not “acquiesce” to Defendant Harris’ use of the vehicle to purchase and deliver dog
food to a friend. See id.
In addition to being unauthorized, these stops amounted to more than a “minor deviation”

13
from his route. While the locations involved—K-Mart, Mobil, and Owens’ residence—appear to
have been in close proximity, Harris spent a total of 25 minutes away from his route, of which 16
minutes were spent running an errand for Plaintiff. Most importantly, his unauthorized errand
was clearly of a personal nature and not in the interests of his employer’s business. Thomas v.
McBride Exp. Co., 266 S.W.2d 11, 13 (Mo. Ct. App. 1954)(“ [A]ny turning aside from the

designated or customary route, where the sole motive is self interest, unmixed with any intent to
serve the master, separates the servant from the master's service, regardless of the extent of the
deviation.”). Thus, Defendant Harris was acting outside the scope of his employment during
both unauthorized personal stops.
Finally, although Harris was in the process of leaving Owens’ residence and returning to
his route, he was not where he should have been as required to perform his duties and he had not
yet returned to the point of deviation at 204 Briar Ridge. Defendant Harris urges the Court to
adopt the reasoning in Schulte v. Grand Union Tea & Coffee Co., 43 S.W.2d 831 (Mo. Ct. App.
1931), a workers’ compensation case. In Schulte, the decedent employee, a salesman, left the

home of a customer to go back to the house of a woman on his route to “serve a purpose of his
own and not that of his employer.” Id. at 833. Schulte was in an accident as he returned his
work truck to his employer’s garage after leaving the woman’s residence. Id. The Missouri
Court of Appeals determined that at the time the accident occurred, Schulte’s deviation from his
employer’s business had ended because the act of returning his work truck to his employer’s
garage was an “act of service for his employer.” Id. at 835. However, unlike in Schulte,
Defendant Harris’ route and hours of employment were strictly set and monitored. Id. at 834.
Further, Defendant Harris had not yet left Owens’ residence when the accident occurred and was

14
not engaged in an act of service for his employer. Thus, Defendant Harris had not yet returned to
the point of deviation or the place where, in performance of his duties, he should be. Humphrey
v. Hogan, 104 S.W. 2d 767 (Mo. Ct. App. 1937) (holding employee not in the scope of his
employment when he deviated from his route and had not returned either to the point of
deviation or the place where, in performance of his duties, he should be). See also Thomas, 266

S.W.2d at 13 (finding employee not in the scope of his employment when he deviated from his
normal route to pick up his son and the accident occurred on his way to pick up his son); Brown
v. Moore, 248 S.W.2d 553, 557 (Mo. Ct. App. 1952) (finding employee not within the scope of
his employment when the employee went on a personal errand three miles out of the way of
where he needed to go to deliver a letter for his employer and he had not yet returned to the point
of deviation at the time of the accident).
The Court finds that Defendant United States has sufficiently rebutted the presumption
afforded by Missouri case law and Plaintiff and Defendant Harris have not met their burden to
establish that Harris was acting in the scope of his employment when the accident occurred.

Therefore, Defendant United States is entitled to sovereign immunity, and the Court will dismiss
Count I against Defendant United States, with prejudice, for lack of subject matter jurisdiction.
Furthermore, as Plaintiff’s remaining claim against Defendant Harris sounds in state law, the
Court will decline to exercise supplemental jurisdiction over the claim and dismiss it without
prejudice. 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental
jurisdiction over a claim . . . if the district court has dismissed all claims over which it has
original jurisdiction.”). See also Gregoire v. Class, 236 F.3d 413, 420 (8th Cir. 2000) (“[T]he
judicial resources of the federal courts are sparse compared to the states. We stress the need to

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exercise judicial restraint and avoid state law issues wherever possible.”) (quoting Condor Corp.
v. City of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990)).
III. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Defendant Benjamin Harris’ Petition for Certification

of Scope of Employment (Doc. 24) is DENIED and Defendant United States of America’s
interrelated Motion to Dismiss for Lack of Jurisdiction (Doc. 29) is GRANTED. Count I
against Defendant United States of America is DISMISSED, with prejudice and Count II
against Defendant Benjamin Harris is DISMISSED, without prejudice.
A separate order of dismissal will accompany this memorandum and order.
Dated this 30th day of June, 2020.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233289. Public record. Not legal advice.