Opinion
Civ. No. 429-72.
September 13, 1973.
José R. Gaztambide Gómez, Hato Rey, P. R., for plaintiffs.
Ignacio Rivera Cordero, Asst. U.S. Atty., San Juan, P. R., for defendant.
ORDER
This matter is before the Court on defendant's motion to dismiss and plaintiffs' opposition to the same.
Defendant alleges that plaintiffs have failed to file a prior administrative claim pursuant to 28 U.S.C. § 2675 (a), which is a jurisdictional requirement for the filing of an action sounding in tort. Plaintiffs counter that this is an action for breach of contract and, therefore, the filing of a prior administrative claim is not required. The basis of plaintiffs' action is that defendant has failed to deliver a free and clear title of the property object of the purchase-sale contract entered into by them. Therefore, the claim is essentially grounded in contract and does not come within the coverage of the Federal Tort Claims Act, 28 U.S.C. Sections 1346(b), 2671 et seq. See Blanchard v. St. Paul Fire and Marine Insurance Co., 341 F.2d 351 (5 Cir. 1965), cert. denied, 382 U.S. 829, 86 S.Ct. 66, 15 L.Ed.2d 73 (1965); United States v. Huff, 165 F.2d 720 (5 Cir. 1948); Commonwealth of Mass. v. Connor, 248 F. Supp. 656 (D.C.Mass. 1966), affd. 366 F.2d 778 (1 Cir. 1966).
On the other hand, contract claims are covered by the Tucker Act, 28 U.S.C. § 1491 which confers upon the Court of Claims jurisdiction over "any claim against the United States . . . founded . . . upon any express or implied contract with the United States . . . in cases not sounding in tort." The district courts have concurrent jurisdiction of such cases under 28 U.S.C. § 1346(a)(2), but only when the claim does not exceed $10,000.00.
When, as in the instant case, the claim exceeds the sum of $10,000.00, the action may be brought only in the Court of Claims and not in this Court. 28 U.S.C.A. Sections 1346(a)(2) and 1491. Therefore, we order the dismissal of the complaint for failure to state a claim cognizable under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and for lack of jurisdiction to entertain it under the Tucker Act, 28 U.S.C. § 1346(a)(2), because the claim is in excess of $10,000.00.
It is so ordered.