Opinion
Civil Action No. 3:99-CV-0670-X
February 7, 2000
MEMORANDUM OPINION AND ORDER
Before the Court is the United States Postal Service's Motion to Dismiss or in the Alternative for Summary Judgment, filed November 10, 1999. Plaintiff filed no response. For the reasons stated below, the Postal Service's Motion for Summary Judgment is GRANTED. Further, as the only federal defendant in this suit is the United States Postal Service and the Court is not aware of diversity jurisdiction, the remaining Defendants are DISMISSED without prejudice for lack of jurisdiction.
This Court actually went so far as to contact counsel for the plaintiff regarding his intent to respond to this motion. After indicating that he intended to respond, the Court has yet to hear from counsel. This is not the first time plaintiff's counsel has been less than diligent in responding to Court inquiries.
BACKGROUND
As the Court is required to take the Plaintiff's allegations as true, this section closely tracks the facts set forth in the Plaintiff's First Amended Complaint. The Court makes no findings as to their validity.
On or about March 26, 1997, a bus owned by DART and driven by Kenneth Powell collided with a United States Postal Service Truck in downtown Dallas. The Plaintiff suffered several injuries which are the basis of this law suit. Plaintiff made a demand on the United States Postal service for $11,250.00. The Postal Service denied his claim on November 7, 1997. Defd's Ex. 1. The Postal Service also informed Plaintiff that he could file suit against the United States of America not later than six months after the date of the denial letter. Defd's Ex. 1.
STANDARD OF REVIEW
Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, the summary judgment record demonstrates that no genuine issue of material fact exists, and therefore, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant meets its burden, the burden shifts to the nonmovant to establish with significant probative evidence that a material issue of fact exists. Kansa Reinsurance Co., Ltd v. Congressional Morgage Corp. of Tex., 20 F.3d 1362, 1371 (5th Cir. 1994). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue exists for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
ANALYSIS
A sovereign may not be sued without its consent. United States v. Sherwood, 312 U.S. 584 (1941). The federal government has set forth the basis on which it may be sued. See Federal Tort Claims Act, 28 U.S.C. § 1346 (b), § 2671 et seq. The Federal Tort Claims Act ("FTCA")is a plaintiffs exclusive remedy against the United States for actions sounding in Tort. J.D. Pflaumer v. United States Department of Justice, 450 F. Supp. 1125, 1132 n. 11 (E.D. Pa. 1978). If a plaintiff fails to meet the FTCA's requirements, this Court is deprived of subject matter jurisdiction. United States v. Testan, 424 U.S. 392 (1976). Under the FTCA, the only proper defendant is the United States of America. See 28 U.S.C. § 1346 (b), § 2679(a); Carr v. Veterans Administration, 522 F.2d 1355 (5th Cir. 1975). The Postal Service is not a valid defendant under the FTCA. Stewart v. United States, 659 F.2d 1085 (7th Cir. 1981). The requirements of the FTCA are jurisdictional and may not be waived. Best Bearings v. United States, 463 F.2d 1177 (7th Cir. 1972); Three-M Enterprises v. United States, 548 F.2d 293 (10th Cir. 1977); Bialowas v. United States, 443 F.2d 1047 (3rd Cir. 1971). As the United States Postal Service is not the appropriate defendant, the case against the Postal Service must be dismissed for lack of subject matter jurisdiction.
Even if the Postal service were the correct defendant, the Plaintiff still could maintain no claim against that agency. Under the FTCA, a plaintiff has six months from the time of a final agency denial to initiate suit. 28 U.S.C. § 2401 (b). These restrictions are also jurisdictional and may not be waived. Houston v. United States Postal Service, 823 F.2d 896, 902 (5th Cir. 1987), cert. denied, 485 U.S. 1006 (1988). The Postal Service denied Plaintiff's claim on November 7, 1997. Plaintiff filed his Original Complaint on March 26, 1999, long after the six month deadline had passed. As a result Plaintiff's claims are now time barred.
Finally, Plaintiff alleged jurisdiction under 28 U.S.C. § 2675 (a). This code section confers jurisdiction to this court under FTCA. As the Plaintiff's claims against the only federal defendant are dismissed, this Court no longer has subject matter jurisdiction over the Plaintiff's suit. Bank One Chicago v. Midwest Bank Trust, 516 U.S. 264, 269 (1996) (stating that subject matter jurisdiction is a threshold issue that may raised at any time by the parties or the court). Therefore, this case is not properly before this Court. Consequently, the remaining Defendant's in this case are DISMISSED without prejudice for want of jurisdiction.
SO ORDERED.