Opinion
Civil Action No. 01-2462-KHV
April 4, 2002
MEMORANDUM AND ORDER
Phyllis Hunt filed suit against the United States of America and the United States Postal Service ("USPS") alleging that she sustained injury when she tripped over a package which was negligently placed by a postal employee. This matter is before the Court on Defendants' Motion To Dismiss (Doc. #11) filed January 18, 2002. For reasons set forth below, the Court sustains defendant's motion.
Factual Background
The factual allegations of plaintiff's amended complaint may be summarized as follows:
On September 27, 1999, plaintiff was employed as a waitress at Bennie's Grill in Phillipsburg, Kansas. Rhonda Calhoun, a USPS employee, left a package on the floor of the restaurant in a blind spot around the corner from the kitchen and in the path of restaurant employees. Plaintiff tripped over the package and sustained physical injury.
On March 8, 2002, Magistrate Judge James P. O'Hara sustained plaintiff's motion to amend and plaintiff filed an amended complaint. See Order (Doc. #18); Amended Petition (Doc. #19). Plaintiff's opposition to defendants' motion to dismiss and defendants' reply brief specifically address plaintiff's amended complaint. Moreover, to the extent it related to plaintiff's amended complaint, Magistrate Judge O'Hara permitted the parties to file additional briefing on defendants' motion to dismiss. See Order (Doc. #18). Accordingly, the Court will consider defendants' motion to dismiss with respect to plaintiff's amended complaint.
Plaintiff alleges that defendants were negligent because of the package placement and because they did not warn restaurant employees about the location of the package. The government asks the Court to dismiss plaintiff's complaint because it has not waived immunity for plaintiff's claim.
Motion To Dismiss Standards
The Court may only exercise jurisdiction when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 280 (D.Kan. 1995) (citing Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); Fed.R.Civ.P. 12(h)(3). Plaintiff sustains the burden of showing that jurisdiction is proper, see id., and she must demonstrate that the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D.Kan. 1993).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take two forms: facial attacks on the complaint or factual attacks on the accuracy of the allegations in the complaint. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Defendant's motion falls within the former category because the Court need not consider evidence outside the complaint.
Analysis
Defendants first argue that the United States is the only proper defendant to plaintiff's claim under the Federal Tort Claims Act ("FTCA") and that the USPS should be dismissed as a separate defendant. Plaintiff does not dispute this point and the Court finds that it is well taken. See 28 U.S.C. § 2679(a) ("The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive."); Wexler v. Merit Sys. Prot. Bd., 986 F.2d 1432, 1993 WL 53548, at *2 (10th Cir. Feb. 17, 1993) ("[u]nder the FTCA, only the United States is a proper defendant"); Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990) ("The FTCA clearly provides that the United States is the only proper defendant in a suit alleging negligence by a federal employee."). Accordingly, the Court dismisses the USPS as a separate defendant.
The United States next argues that the Court lacks subject matter jurisdiction over plaintiff's claim because it has not waived sovereign immunity for her claim. Under the FTCA, the United States is liable for money damages for personal injuries caused by a governmental employee acting within the scope of her employment "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." 28 U.S.C. § 1346(b). The FTCA is a general waiver of sovereign immunity, but it contains several exceptions. See 28 U.S.C. § 2680(a)-(n).
Sovereign immunity generally bars suits against the United States unless the government has expressly waived its immunity. See Nat'l Commodity Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245-46 (10th Cir. 1989). "A party suing the United States, its agencies or officers, must allege both a basis for the court's jurisdiction and a specific statute containing a waiver of the government's immunity from suit." Thomas v. Pierce, 662 F. Supp. 519, 523 (D.Kan. 1987). Because the FTCA constitutes a waiver of the sovereign immunity of the United States, the Court must strictly construe it in order to prevent expanding the waiver beyond what Congress intended. See Pipkin v. USPS, 951 F.2d 272, 275 (10th Cir. 1991); Bradley v. United States, 951 F.2d 268, 270 (10th Cir. 1991). The FTCA waiver of sovereign immunity is jurisdictional in nature so that if the action is barred, the Court lacks subject matter jurisdiction over plaintiff's claim. See id.
One exception to the FTCA's general waiver of sovereign immunity is for "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." 28 U.S.C. § 2680(b). The Court starts with the assumption that "the legislative purpose is expressed by the ordinary meaning of the words used." Kosak v. United States, 465 U.S. 848, 853 (1984) (internal quotations and citations omitted). To ascertain the scope of Section 2680(b), the Court must "identify those circumstances which are within the words and reason of the exception — no less and no more." Id. at 853 n. 9. In Kosak, the Supreme Court outlined the underlying objectives of the FTCA:
The three objectives most often mentioned in the legislative history as rationales for the enumerated exceptions are: ensuring that "certain governmental activities" not be disrupted by the threat of damage suits; avoiding exposure of the United States to liability for excessive or fraudulent claims; and not extending the coverage of the Act to suits for which adequate remedies were already available.
Id. at 858. The Supreme Court also noted in dicta that "[o]ne of the principal purposes of the Federal Tort Claims Act was to waive the Government's immunity from liability for injuries resulting from auto accidents in which employees of the Postal System were at fault." Id. at 854.
The FTCA does not define "transmission," but in the context of the statute, the term encompasses "acts of negligence by Postal Service employees regarding [the handling of] postal matter beginning when the postal matter [i]s accepted by the Postal Service and ending when it [i]s delivered." Robinson v. Dalton, 849 F. Supp. 799, 802 (S.D.Ga. 1994); see also Black's Law Dictionary (5th ed. 1979) at 1344 (transmit means "[t]o send or transfer from one person or place to another"); Webster's Third New Int'l (Unabridged) Dictionary (1993) at 2429 (transmit means "to cause to go to or be conveyed to another person or place").
Plaintiff argues that her claim for negligent placement of the package is permissible under the FTCA because transmission of the package was complete "at the door of the restaurant where the mail was delivered." Memorandum In Support Of Plaintiff's Object To Motion To Dismiss (Doc. #15) filed February 7, 2002 at 3.
Plaintiff's complaint, however, does not allege the spatial relationship between the door of the restaurant and the location where the package was left. In any event, the Court finds that transmission of the package was not complete until the postal employee placed it on the floor, i.e. the act which resulted in the surrender of custody by the USPS. Section 2680(b) therefore bars plaintiff's claim for negligent placement of the package. See Bono v. United States, 145 F. Supp.2d 441, 446 (D.N.J. 2001) (Section 2680(b) barred negligence claim based on plaintiff tripping over piece of mail left between the front door and storm door of house).
Plaintiff has amended her complaint to allege that the postal employee negligently failed to warn her of the location of the package. Plaintiff asserts that defendants' failure to warn took place after the placement, delivery and transmission of the package. The plain language of the statute, however, bars plaintiff's failure to warn claim because it "arises out of" the negligent transmission of postal matter. 28 U.S.C. § 2680(b); see Brazas Sporting Arms, Inc. v. Am. Empire Surplus Lines Ins. Co., 220 F.3d 1, 7 (1st Cir. 2000) (phrase "arising out of" is generally understood to mean originating from, growing out of, flowing from, incident to, or having connection with); see also Gager v. United States, 958 F. Supp. 494, 496 (D.Nev. 1997) (language of exception "any claim arising out of . . . the negligent transmission" is expansive; claim that USPS failed to properly train employees before package arrived at post office is barred), aff'd, 149 F.3d 918 (9th Cir.), cert. denied, 525 U.S. 966 (1998); Robinson, 849 F. Supp. at 801 (language of exception is expansive). Plaintiff's attempt to transform her negligent delivery claim into a failure to warn claim is futile; the substance of either claim is the negligent transmission of postal matter. See Gager, 958 F. Supp. at 496 ("Any plaintiff could allege that their claim arose not out of the transmission of postal matter, but out of actions occurring before the actual receipt of an item at a postal facility or after its delivery. In light of the broad language of the exception, such claims would be merely end-runs around the intent clearly expressed by Congress in enacting 28 U.S.C. § 2680(b)."); see also JBP Acquisitions, LP v. United States, 224 F.3d 1260, 1264 (11th Cir. 2000) (substance of claim, and not language used in stating it, controls whether claim is barred by FTCA exception); Dorking Genetics v. United States, 76 F.3d 1261, 1265 (2d Cir. 1996) (plaintiff may not by artful pleading avoid statutory exceptions to FTCA; substance of claim, rather than theory asserted, controls); Persick v. USPS, No. 00-5062, 2001 WL 185543, at *1 (E.D.Pa. Feb. 23, 2001) (§ 2680(b) unambiguously bars plaintiff's contract and unfair trade practice claims which arise from USPS failure to deliver package); Gownaris v. USPS, 1988 WL 61741, at *2 (E.D.Pa. June 10, 1988) ("While the characterization of this claim as one for false advertising or failure to warn is perhaps artful, the ultimate claim of liability remains misdelivery [of postal matter] . . . and, therefore, is barred by the FTCA").
The Court's ruling is further supported by the objectives of the FTCA which the Supreme Court identified in Kosak. Those objectives include (1) ensuring that certain governmental activities not be disrupted by the threat of damage suits and (2) avoiding exposure of the United States to liability for excessive or fraudulent claims. See Kosak, 465 U.S. at 858. The USPS delivers numerous pieces of mail each day. To allow suits for the negligent placement of postal materials would force the USPS "to divert significant resources from mail delivery to legal defense." Bono, 145 F. Supp.2d at 446. This shift in resources would disrupt the efficient and economical delivery of mail. Moreover, because USPS witnesses are not typically present after mail has been delivered, the potential for fraudulent claims is high. See id.
Plaintiff has failed to show that the government has waived its sovereign immunity with respect to her FTCA claim. Accordingly, the Court lacks subject matter jurisdiction over her claim.
IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss (Doc. #11) filed January 18, 2002 be and hereby is SUSTAINED. The Court dismisses the case for lack of subject matter jurisdiction.