Opinion
No. C 03-0501 JSW.
July 1, 2003
ORDER GRANTING DEFENDANT UNITED STATES MINT'S MOTION TO DISMISS
Now before the Court is the motion by defendant United States Mint ("the U.S. Mint") to dismiss the complaint of plaintiff C. Kay Nutter ("Nutter") for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The Court finds this motion suitable for disposition without oral argument. Civil L.R. 7-6. Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the Court hereby GRANTS defendant U.S. Mint's motion to dismiss for lack of subject matter jurisdiction.
FACTUAL BACKGROUND
This action arises out of the shipment of an allegedly rare, platinum bust of Queen Nefertiti. Nutter alleges that, on or about December 17, 2001, she and her business partner, George Walker, sent the bust via United Parcel Service to the U.S. Mint in Washington, D.C., with the intent that the U.S. Mint purchase it. The U.S. Mint acknowledges that on December 18, 2001, it received a package with a metal bust inside. On December 19, 2001, the U.S. Mint contacted Mr. Walker, the listed sender on the outside of the package, and informed him that the U.S. Mint did not purchase such items. The U.S. Mint sent the bust back to Nutter and her business partner via Federal Express, priority overnight delivery. Nutter alleges that the box was empty when she received it and that the bust was never returned to her. She further alleges that the U.S. Mint was negligent in its handling of the bust and the its actions constitute a breach of contract. She claims $39,000,000 in damages from the U.S. Mint, and also lists Federal Express and United Parcel Service as defendants in her original complaint. The United States moves to dismiss Nutter's complaint against the U.S. Mint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
If Nutter wishes to proceed against defendants Federal Express and United Parcel Service, she must comply with the service of process requirements under Federal Rule of Civil Procedure 4 and file a proof of service with the Court in accordance with Federal Rule of Civil Procedure 4(1), showing that these defendants have been properly served. However, even if Nutter demonstrates proof of service on these two defendants, there is no indication that venue would be proper in this Court.
ANALYSIS
I. The Court Lacks Jurisdiction Over This Action.
A. An Action May Not Be Brought Against the United States Without Specific Statutory Consent.
The U.S. Mint is an agency of the United States Government. It is well-established that the United States "is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941); see also United States v. Testan, 424 U.S. 392, 399 (1976). A court does not have jurisdiction over a suit against the United States or one of its agencies without such a waiver of sovereign immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (concluding that consent to be sued is a "prerequisite for jurisdiction"). The waiver must be in the form of specific statutory consent, and no officer of the United States can confer jurisdiction by his or her actions. United States v. Shaw, 309 U.S. 495, 501 (1940). Moreover, the burden is on the plaintiff to make a showing that the Government's sovereign immunity has been expressly waived and that the court has jurisdiction over the suit. Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995). If a plaintiff cannot fit his or her claim against the United States within a waiver of sovereign immunity, the court must dismiss the action for lack of jurisdiction. United States v. Dalm, 494 U.S. 596, 608 (1990).
Nutter does not fit her claim against the U.S. Mint within a waiver of sovereign immunity. Nutter did not indicate the jurisdictional basis for her claim in the complaint she filed or in other documents submitted to the Court. It is the plaintiff's burden to identify her cause of action and a corresponding waiver of statutory immunity, and Nutter has not met this burden. Moreover, the Court's independent review of the record indicates that there is no statutory waiver of sovereign immunity on which the Court can base its jurisdiction.
B. Nutter Has Not Exhausted Her Administrative Remedies under the Federal Tort Claims Act.
The Federal Tort Claims Act ("FTCA") is the exclusive remedy for tort actions against the United States. Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984). The FTCA provides for a limited waiver of sovereign immunity where there is injury caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his or her office or employment. 28 U.S.C. § 1346(b), 2679(a). In this limited waiver, the FTCA requires that before filing a tort action, "the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency." 28 U.S.C. § 2675(a). Thus, as a prerequisite to suit under the FTCA, Nutter must first file an administrative tort claim with the appropriate federal agency and exhaust her administrative remedies. See Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir. 1983) (per curiam). The evidence in the record demonstrates that Nutter has not filed an administrative tort claim with the U.S. Mint. (Decl. of Daniel P. Shaver ¶ 4.) Therefore Nutter has not met a prerequisite for the maintenance of a FTCA lawsuit.
Even if Nutter were able to file a FTCA lawsuit, the proper party is the United States, rather than the U.S. Mint. An agency cannot be sued in its own name in a FTCA lawsuit. Allen, 749 F.2d at 1388.
Failure to comply with the mandatory administrative requirements divests a district court of jurisdiction to hear a party's claim. Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992). The administrative claim requirements of section 2675(a) are jurisdictional, must be pleaded and proven by the FTCA claimant, and are not waivable. Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 743 (9th Cir. 1991). Having failed to file an administrative claim and exhaust her administrative remedies, Nutter cannot bring suit in this Court. The Court is without jurisdiction for Nutter's tort claim against the U.S. Mint.
C. The Court Does Not Have Another Basis For Jurisdiction In This Action.
Nutter has not alleged facts sufficient to constitute a cause of action for breach of contract. She has not attached a written contract to her complaint or indicated an implied in fact contract in the record. Moreover, even if Nutter were to pursue a contract claim against the United States, she must first meet the requirements for jurisdiction under the Tucker Act. 28 U.S.C. § 1346(a)(2), 1491. The Tucker Act provides the exclusive basis for bringing contract claims against the United States. Id.; see also N. Star Alaska v. United States, 14 F.3d 36, 37 (9th Cir. 1994). Under the Tucker Act, actions on claims exceeding $10,000 must be brought in the Court of Federal Claims. 28 U.S.C. § 1346(a)(2); see also Rowe v. United States, 633 F.2d 799, 801 (9th Cir. 1980). Nutter seeks damages of $39,000,000 from the U.S. Mint. Thus, this Court is without jurisdiction to hear a potential contract claim against the U.S. Mint unless Nutter waives all damages over $10,000. See United States v. Johnson, 153 F.2d 846, 848 (9th Cir. 1946) (holding that where there is a claim for damages under the Tucker Act, any excess above $10,000 may be waived in order to come within the Tucker Act jurisdictional limit and stay in district court); see also United States v. Lockhead L-188 Aircraft, 656 F.2d 390, 393 (9th Cir. 1979) (same).
Actions for breach of contract against the United States may be based on express contracts ( i. e., written) or implied in fact contracts ( i. e., one party knowingly accepting a benefit from the other), but not on contracts implied in law ( i.e., benefit conferred by one party without the knowledge of the other). Hatzlachh Supply Co. v. United States, 444 U.S. 460, 465 (1980). Thus, if Nutter were to proceed on a contract claim, she must allege facts sufficient to show an intention by the United States to be bound by a contractual obligation.
Nutter also references Article VI of the United States Constitution as a possible basis for her complaint against the U.S. Mint. However, Article VI does not provide Nutter with a cause of action against the U.S. Mint for allegedly failing to return the Nefertiti bust, and she does not allege facts consistent with any other constitutional claim. Article VI, Clause 1 was intended to validate the debts entered into by this country before adoption of the Constitution in 1787. Clause 2 provides that the Constitution shall be the supreme law of the land. The purpose of this language is to address potential conflicts between federal and state law. United States v. Allegheny County, 322 U.S. 174, 183 (1944). Clause 3 is the oath of office that executive and judicial officers take to uphold the Constitution. Thus, under the facts of this case, Article VI cannot be used as a basis for a claim against the U.S. Mint.
In addition, on May 12, 2003, the Court issued an order for Nutter to show cause why her complaint should not be dismissed for lack of jurisdiction or for failure to state a cause of action. Nutter failed to present a cause of action for which the Court has jurisdiction.
For all these reasons, the Court GRANTS Defendant's motion and dismisses Nutter's complaint against the U.S. Mint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
II. Venue Requirements Are Not Met In This Action.
Even if the Court had jurisdiction over Nutter's complaint against the U.S. Mint, which it does not, the Northern District of California is not the proper venue for Nutter's action. In addition to jurisdictional requirements, a complaint must adhere to the rules of federal venue in order to avoid dismissal or transfer. 28 U.S.C. § 1406(a). Venue in actions against the United States is governed by 28 U.S.C. § 1402. This section provides that, for venue purposes, any Tucker Act claim brought by a non-corporate plaintiff against the United States may only be brought in the district where the plaintiff resides. 28 U.S.C. § 1402(a)(1). In addition, any FTCA claim against the United States may only be brought in the district in which plaintiff resides or wherein the alleged act or omission occurred. 28 U.S.C. § 1402(b). In this case, Nutter resides in Topeka, Kansas and the acts complained of occurred at the U.S. Mint in Washington, D.C. There is nothing in the record to indicate that venue is proper in the Northern District of California.
Nutter alleges venue is proper in this Court because a potential witness, John Peck, who is unable to travel due to his advanced age and ill health, resides in California. However, the presence of a witness in the jurisdiction is not sufficient to establish venue in an action against the United States. See 28 U.S.C. § 1402. In addition, if this action is properly brought in another venue, an unavailable witness can testify by sworn affidavit. Fed.R.Evid. 804(b)(1).
CONCLUSION
The Court finds that it lacks subject matter jurisdiction over Nutter's complaint against the U.S. Mint because Nutter does not fit her claim against the United States within a waiver of sovereign immunity. The FTCA is not an available basis for jurisdiction for Nutter's negligence claim because Nutter has not met the Act's administrative prerequisites. The Tucker Act is not an available basis for jurisdiction for a potential contract or constitutional claim because Nutter's claim exceeds $10,000, and she has failed to plead facts sufficient to indicate an intention by the United States to be bound by contract. The Court also finds that even if it had jurisdiction, the Northern District of California is not the proper venue for Nutter's action against the U.S. Mint.
For the foregoing reasons, the Court GRANTS Defendant's motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The clerk is directed to close the file.