Opinion
CIVIL ACTION NO. 03-CV-0042
October 22, 2003
MEMORANDUM AND ORDER
Plaintiff Cheryl Hardy brings this action for injuries that occurred when she allegedly slipped and fell on the front steps of the property located at 612 Levick Street, Philadelphia, PA ("the Property"). Plaintiff filed suit in this Court on January 3, 2003. The Complaint alleges negligent, careless and/or reckless conduct in maintaining the property on the part of the United States of America (Count I); the Department of Housing and Urban Development ("HUD") (Count II); Golden Feather Realty Services, Inc. ("Golden Feather") (Count III); Aurora Loan Services, Inc. ("Aurora") (Count IV); First Preston Management, Inc. ("First Preston") (Count V); and all of the aforementioned parties jointly and severally (Count VI) (collectively "Defendants").
Now before the Court are: (1) the Motion of the United States and HUD to Dismiss HUD as a Defendant and to Dismiss Counts I, n, and VI for lack of subject matter jurisdiction, and (2) Aurora's Motion to Dismiss Counts IV and VI for Failure to State a Cause of Action, pursuant to Fed.R.Civ.P. 12(b)(6). I. Background
On or about January 7, 2001, Plaintiff slipped and fell on the front steps of the Property. (Complaint at ¶ 12). As a result, she suffered personal injuries, including a fractured ankle. (Complaint at ¶ 16). Plaintiff alleges that each Defendant owned, maintained, or otherwise controlled the property on the date of her injury, and that the injury occurred as a result of Defendants' negligence (Complaint at ¶¶ 7-11, 15, 22, 29, 36, and 43).
Plaintiffs claims against HUD and the United States are governed by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.
II. Legal Standard A. Federal Rule of Civil Procedure 12(b)(1)
In considering a motion to dismiss for lack of subject matter jurisdiction, the Court must distinguish between motions that attack the complaint on its face and those that attack the existence of subject matter jurisdiction in fact. Mortensen v. First Fed. Sav. Loan Assoc., 549 F.2d 884, 891 (3d Cir. 1977). A facial attack is considered under the same standard as a motion to dismiss under Rule 12(b)(6); all allegations in the complaint are taken to be true. Id. If the attack is factual, however, Plaintiffs allegations are not presumed to be true. Id.; Fortuna's Cab Service v. City of Camden, 269 F. Supp.2d 562, 564 (D.N.J. 2003). The Court may look beyond the pleadings and make its own determination as to whether it has the power to hear the action.Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir. 2000). Further, the Plaintiff bears the burden of proving that jurisdiction does in fact exist. Mortensen, 549 F.2d at 891. III. Analysis A. Motion to Dismiss HUD as a Defendant
Plaintiff has agreed to dismiss HUD from this action. Accordingly, Count n will be dismissed in its entirety and Count VI will be dismissed insofar as it relates to HUD.
B. Motion to Dismiss as to the United States
The United States argues that, because Plaintiff failed to exhaust administrative remedies before filing her suit in Federal court, this Court lacks subject matter jurisdiction to hear the action. This is a factual attack on the Court's subject matter jurisdiction because it challenges the existence of jurisdiction as opposed to the sufficiency of the pleadings.
Prior to bringing suit under the FTCA, a claim must be presented to the proper federal agency and be denied, or be deemed to be denied due to agency inaction. The FTCA provides, in pertinent part:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make a final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.28 U.S.C. § 2675(a). The regulations established by the Attorney General, pursuant to the rulemaking authority of 28 U.S.C. § 2672, further provide:
[A] claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.28 C.F.R. § 14.2(a).
If a claimant institutes an action in Federal court without complying with the claim procedure and time limits prescribed by the FTCA, then the Federal court lacks jurisdiction over the action. Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971). Because the FTCA represents the United States' consent to abrogate its sovereign immunity, the language of the statute is to be strictly construed. Pennsylvania v. Nat'l Assoc. of Flood Insurers, 520 F.2d 11, 19-20 (3d Cir. 1975)overruled on other grounds, 659 F.2d 306 (3d Cir. 198); Hager v. Swanson Group, 916 F. Supp. 447, 449 (E.D. Pa. 1996). The agency regulations promulgated to enforce § 2675 also are strictly construed.Pennsylvania v. Nat'l Assoc. of Flood Insurers, 520 F.2d at 20. If a claim is not in compliance with the FTCA's procedures, "then it does not fit within the FTCA's waiver, and is thus barred by sovereign immunity, which takes the matter outside of a federal court's subject matter jurisdiction." Tobin v. United States, 170 F. Supp.2d 472, 477 (D.N.J. 2001).
Here, Plaintiff has failed properly to submit her claim to the appropriate federal agency before filing her action in Federal court. On May 17, 2001, HUD received a letter from Plaintiff, notifying the agency of the claim. (Plaintiffs Response, Exh. A). A letter may satisfy the requirement of presenting the claim to the agency if it gives the agency appropriate notice and includes a statement of damages. Tucker v. United States Postal Service, 676 F.2d 954, 959 (3d Cir. 1982). Failure to specify the amount of damages is a fatal flaw in the claim. Id.; see also Pennsylvania v. Nat'l Assoc. of Flood Insurers, 520 F.2d 11 (upholding district court's dismissal of the action because the letter to the agency failed to specify the amount of the claim); Hager v. Swanson Group, 916 F. Supp. 447 (granting motion to dismiss because letter to agency did not state amount of claim). Plaintiffs letter did not state the amount of damages sought, and Plaintiff presents no evidence to indicate that a sum certain ever was presented to HUD. As a result, Plaintiff has not met her burden of establishing that jurisdiction exists in this Court. The Court finds that it does not have subject matter jurisdiction over the claims against the United States. Accordingly, Count I will be dismissed in its entirety and Count VI will be dismissed insofar as it relates to the United States.
The Reply of the United States and HUD to Plaintiffs Response to their Motion to Dismiss set forth this issue in detail. The Reply was filed on April 4, 2003. Plaintiff has not submitted a surreply or any other documents to support her allegation that her claim properly was filed.
C. Remaining Claims
Under a federal court's supplemental jurisdiction, it may entertain state law claims when they are so related to federal claims within the court's original jurisdiction that they form part of the same case or controversy. 28 U.S.C. § 1367. However, if all federal claims are dismissed before trial, the court ordinarily should dismiss the state claims as well. Fortuna's Cab Service, 269 F. Supp.2d at 566 (citingUnited Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). The Court's original jurisdiction in this case was grounded on the presence of the United States as a party. 28 U.S.C. § 1346(b)(1). Having determined that the claims against the United States must be dismissed, the only remaining claims sound in state law, so there is no federal question jurisdiction pursuant to 28 U.S.C. § 1331. Furthermore, the Complaint fails to allege diversity of citizenship, so this Court does not have jurisdiction under 28 U.S.C. § 1332. Accordingly, this court will not exercise supplemental jurisdiction over the remaining claims. Counts III, IV, V and VI will be dismissed.
Defendant Preston brings Cross-Claims against Defendants HUD, Golden Feather, and Aurora, as well as a Third-Party Complaint against Third-Party Defendant Asset Management Specialists, for indemnification. Because these claims are predicated on the Plaintiffs recovery on her Complaint, both the Cross-Claim and the Third-Party claim will be dismissed as moot.
IV. Conclusion
The Motion to Dismiss HUD as a Defendant and to Dismiss Counts I, n, and VI for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), will be granted. All remaining claims also will be dismissed. An appropriate Order follows.