Jones v. The United States of America et al

MOTION to Dismiss for Lack of Jurisdiction

D.N.J.February 17, 2017

PAUL J. FISHMAN Document Electronically Filed United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street P.O. Box 2098 Camden, NJ 08101 (856) 757-5139 Attorneys for Federal Defendants UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ANGELICIA JONES, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants. HON. NOEL L. HILLMAN Civil Action No. 16-4356 (NLH)(JS) NOTICE OF MOTION To: Nicholas J. Renzi, Esq. Adams Renzi Law 1429 Walnut Street, 14th Floor Philadelphia, PA 19102 Attorney for Plaintiff COUNSEL: PLEASE TAKE NOTICE that on Monday, March 20, 2017, Federal Defendants United States of America, Postmaster General Megan J. Brennan, and the United States Postal Service, by the undersigned attorneys, shall move before this Court for an Order dismissing the Complaint against all Federal Defendants. In support of this motion, Federal Defendants will rely upon: (1) the Complaint, (2) a brief, and (3) the Declaration of Kimberly Herbst and its attachments. A proposed form of order is also submitted with this notice. Case 1:16-cv-04356-NLH-JS Document 10 Filed 02/17/17 Page 1 of 2 PageID: 39 PAUL J. FISHMAN United States Attorney s/ Jessica R. O’Neill By: JESSICA R. O’NEILL Date: February 17, 2017 Assistant United States Attorney Case 1:16-cv-04356-NLH-JS Document 10 Filed 02/17/17 Page 2 of 2 PageID: 40 1 PAUL J. FISHMAN Document Electronically Filed United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street P.O. Box 2098 Camden, NJ 08101 (856) 757-5139 Attorneys for Federal Defendants UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ANGELICIA JONES, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants. HON. NOEL L. HILLMAN Civil Action No. 16-4356 (NLH)(JS) BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION On the Brief: JESSICA R. O’NEILL Assistant United States Attorney MOTION RETURNABLE March 20, 2017 Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 1 of 10 PageID: 41 i TABLE OF CONTENTS I. INTRODUCTION ................................................................................................. 1 II. STATEMENTS OF FACTS .................................................................................. 1 III. STANDARD OF REVIEW ................................................................................... 2 IV. ARGUMENT ........................................................................................................ 3 A. The Claims Against Defendant Brennan and the Postal Service Should Be Dismissed. ........................................................................................... 4 B. The Claim Against the Defendant United States Should Be Dismissed Because Plaintiff Failed to Exhaust Administrative Remedies, Depriving This Court of Subject Matter Jurisdiction ............................. 5 V. CONCLUSION ................................................................................................... 7 Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 2 of 10 PageID: 42 ii TABLE OF AUTHORITIES Cases Brill v. Velez, 2014 U.S. Dist. LEXIS 87668 (D.N.J. June 27, 2014) ...................... 3 Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir. 2000 ................................. 3 Couden v. Duffy, 446 F.3d 483, 498 (3d Cir. 2006) .................................................. 5 Dilg v. U.S. Postal Serv., 635 F. Supp. 406 (D.N.J. 1985) ....................................... 5 Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979) ............................................... 4 McNeil v. United States, 508 US 106 (1993) ............................................................ 7 Perez-Barron v. United States, 480 F. App’x 688 (3d Cir. 2012) ......................... 5, 7 United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) .......................................................................................................................... 3 United States v. Dalm, 494 U.S. 596 (1990)............................................................. 4 Wadhwa v. Nicholson, 367 F. App’x 322 (3d Cir. 2010) .......................................... 7 Statutes 28 U.S.C. §§ 1346(b) .................................................................................................. 4 28 U.S.C. § 2401 ........................................................................................................ 4 28 U.S.C. § 2671 ........................................................................................................ 4 28 U.S.C. § 2675(a) ................................................................................................ 6, 7 Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 3 of 10 PageID: 43 1 I. INTRODUCTION Plaintiff Angelicia L. Jones brings this civil action against the United States of America, Postmaster General Megan L. Brennan, and the United States Postal Service, alleging personal injuries as a result of an incident at a United States Post Office in Camden, New Jersey. Plaintiff’s claims are brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346 et seq. Defendants Postmaster Brennan and the United States Postal Service move to dismiss the claims against them, because the only proper defendant in a suit pursuant to the FTCA is the United States. Defendant United States, in turn, asks the Court to dismiss the claims against it because Plaintiff failed to exhaust administrative remedies, as required by the FTCA. As a result, Federal Defendants ask the Court to dismiss the Complaint in its entirety. II. STATEMENTS OF FACTS The Complaint alleges that on July 18, 2014, Plaintiff was on the premises of a United States Post Office at 2816 Federal Street, in Camden, New Jersey. According to the Complaint, an unidentified individual, alleged to be an agent or employee of the Postal Service, was “swinging a large metal can with his back to the Plaintiff and thereby struck her on or about her left arm and head.” Compl. ¶ 7. Plaintiff claims that she suffered personal injuries, including a non-displaced fracture of her middle finger, contusions, abrasions, and damage to her nervous system. She also claims a loss of earnings which may continue into the future. Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 4 of 10 PageID: 44 2 On March 7, 2016, Plaintiff filed an administrative claim with the Postal Service. Declaration of Kimberly A. Herbst (“Herbst Dec.”) ¶ 3, Ex. A. Then, before the Postal Service acted on the administrative claim, Plaintiff filed her Complaint in this Court on July 18, 2016. ECF No. 1. III. STANDARD OF REVIEW “A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the existence of a federal court’s subject matter jurisdiction.” Brill v. Velez, No. 13-5643, 2014 WL 2926086, at *1 (D.N.J. June 27, 2014). Factual attacks on the federal court’s subject matter jurisdiction are properly brought under Rule 12(b)(1). Id. at *2. In considering a factual challenge to a court’s jurisdiction, the Court is not limited to the pleadings but instead “can look beyond the pleadings to resolve factual matters related to jurisdiction.” Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir. 2000). A factual challenge to subject matter jurisdiction is presented where the challenge concerns more than a mere pleading deficiency, but rather the actual failure of the plaintiff=s claims to comport with jurisdictional prerequisites. See, e.g., United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) (finding that the district court correctly held that a factual challenge to jurisdiction was presented because it concerned the actual failure of relator=s claims to comport with the jurisdictional prerequisites contained in 31 U.S.C. ' 3730(e)(4)). The instant Motion, which contends that Plaintiff has not met the jurisdictional requirements of the FTCA, Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 5 of 10 PageID: 45 3 raises a factual challenge to subject matter jurisdiction. IV. ARGUMENT It is axiomatic that the federal government, “as sovereign, is immune from suit save as it consents to be sued…and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Testan, 424 U.S. 392, 399 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586 (1941); Bialowas v. United States, 443 F.2d 1047, 1048-49 (3d Cir. 1971). Absent a specific waiver of sovereign immunity, the courts lack subject matter jurisdiction over claims against the federal government and its agencies. See, e.g., United States v. Dalm, 494 U.S. 596, 608 (1990); Jaffee v. United States, 592 F.2d 712, 718 (3d Cir.), cert. denied, 442 U.S. 961 (1979). Common law tort claims against the federal government and its employees are governed by the FTCA. 28 U.S.C. §§ 1346(b), 2401(b), 2671 et seq. The FTCA is a limited, qualified waiver of sovereign immunity and governs Plaintiff’s claims here. Defendants Postmaster General Brennan and the United States Postal Service seek dismissal of the claims against them, because the only proper defendant in an action brought pursuant to the FTCA is the United States. In turn, the matter should then be dismissed as to Defendant United States because, as a result of Plaintiffs’ failure to exhaust administrative remedies, this Court lacks subject matter jurisdiction over their claims. Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 6 of 10 PageID: 46 4 A. The Claims Against Defendant Brennan and the Postal Service Should Be Dismissed. Count II of the Complaint is specifically pled against Defendant Brennan, and Count III of the Complaint is specifically pled against Defendant United States Postal Service. These counts allege that Defendants Brennan and the Postal Service acted negligently, and thus can only be brought pursuant to the FTCA, which waives the federal government’s sovereign immunity as to negligent or wrongful actions by its employees within the scope of their official duties, where “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)(1). Couden v. Duffy, 446 F.3d 483, 499 (3d Cir. 2006). However, in an action brought pursuant to the FTCA, an action against the United States is a plaintiff’s “exclusive remedy.” Id. at 98 n.10. Therefore, the only appropriate defendant in a Federal Tort Claims Act case is the United States. See, e.g., Perez-Barron v. United States, 480 F. App’x 688, 691 (3d Cir. 2012) (“The FTCA delineates that a plaintiff may sue only the United States”); Dilg v. U.S. Postal Serv., 635 F. Supp. 406, 407 (D.N.J. 1985) (dismissing the complaint against Postal Service because “the United States is the only proper defendant in a suit for personal injuries arising out of the negligence of federal employees”). Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 7 of 10 PageID: 47 5 Consistent with the above authority, Defendants Brennan and the Postal Service should be dismissed from this action, and Counts II and III should be dismissed. B. The Claim Against the Defendant United States Should Be Dismissed Because Plaintiff Failed to Exhaust Administrative Remedies, Depriving This Court of Subject Matter Jurisdiction The FTCA is a limited, qualified waiver of the sovereign immunity that otherwise deprives courts of subject matter jurisdiction over claims against the federal government and its agencies. The Act permits an action against the United States itself for the alleged wrongful acts or omissions of federal employees acting within the scope of their employment. However, a party allegedly harmed by the negligence of a federal government employee must comply with the requirements of Section 2675(a) before the injured party is authorized to bring suit, because the failure to comply with those requirements deprives the court of subject-matter jurisdiction. 28 U.S.C. § 2675(a). Section 2675(a) of the FTCA mandates that a tort action “shall not be instituted” against the United States unless two prerequisites have been satisfied: (1) “the claimant shall have first presented the claim” to the agency and (2) the claim “shall have been finally denied by the agency in writing.” 28 U.S.C. § 2675(a). The agency has six months from the date the claim is filed to make its determination on the claim; after six months from the date of filing, it is deemed denied. Id. Stated another way, no FTCA action may be commenced on a claim Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 8 of 10 PageID: 48 6 against the United States until the claimant has first presented, and exhausted, the available administrative remedies prior to bringing suit in any court. See McNeil v. United States, 508 U.S. 106, 111-113 (1993). If a plaintiff files suit without first having submitted a timely claim for administrative remedies, the suit must be dismissed. McNeil, 508 U.S. at 112-13; Perez-Barron, 480 F. App’x at 691. Likewise, if a plaintiff submits an administrative claim to the agency and then files a complaint before either: (1) the agency has finally denied the claim in writing, or (2) the six-month period for agency action has expired, the complaint must be dismissed for lack of subject matter jurisdiction. McNeil, 508 U.S. at 112-13. Plaintiff here has not satisfied the second FTCA prerequisite. Plaintiff met the first prerequisite, because she presented her claim to the agency via an administrative claim filed on March 7, 2016. Herbst Dec. ¶ 3, Ex. A. However, she then prematurely filed her complaint in this Court on July 18, 2016. At that point, the agency had not “finally denied” the claim “in writing.” 28 U.S.C. § 2675(a). The agency cannot be construed to have “deemed a final denial of the claim,” because six months had not yet elapsed from the claim’s filing. Id. In sum, Plaintiffs’ failure to exhaust administrative remedies deprives this Court of subject matter jurisdiction, and the Complaint should be dismissed. See, e.g., McNeil, 508 U.S. at 112; Perez-Barron, 480 F. App’x at 691; see also Wadhwa v. Nicholson, 367 F. App’x 322, 325 (3d Cir. 2010) (FTCA requires that “administrative exhaustion be complete before instituting suit, and . . . this Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 9 of 10 PageID: 49 7 procedural rule is a requirement to which all litigants must adhere.” (emphasis in original)). V. CONCLUSION For the reasons set forth above, Defendants Postmaster General Brennan and the Postal Service respectfully request that this Court dismiss Counts II and III against them because they are not proper defendants under the FTCA, and Defendant United States requests that the Court dismiss Count I for lack of subject matter jurisdiction because Plaintiff failed to exhaust administrative remedies. Respectfully submitted, PAUL J. FISHMAN United States Attorney s/Jessica R. O’Neill By: JESSICA R. O’NEILL Assistant U.S. Attorney Dated: February 17, 2017 Case 1:16-cv-04356-NLH-JS Document 10-1 Filed 02/17/17 Page 10 of 10 PageID: 50 PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, 4th Floor Camden, NJ 08101 Tel. 856-757-5139 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ANGELICIA JONES, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants. HON. NOEL L. HILLMAN Civil Action No. 16-4356 (NLH)(JS) ORDER This matter having come before the Court on motion by Federal Defendants United States of America, Postmaster General Megan J. Brennan, and the United States Postal Service to dismiss Plaintiff’s Complaint for lack of subject matter jurisdiction; and the Court having considered the moving papers and any opposition thereto; and for good cause shown; IT IS this ____________ day of ________________, 2017, hereby ORDERED that the Federal Defendants’ motion to dismiss is GRANTED, and Plaintiff’s Complaint is hereby DISMISSED. ______________________________ NOEL L. HILLMAN, U.S.D.J. Case 1:16-cv-04356-NLH-JS Document 10-2 Filed 02/17/17 Page 1 of 1 PageID: 51 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 1 of 16 PageID: 52 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 2 of 16 PageID: 53 Exhibit A Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 3 of 16 PageID: 54 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 4 of 16 PageID: 55 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 5 of 16 PageID: 56 Exhibit B Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 6 of 16 PageID: 57 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 7 of 16 PageID: 58 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 8 of 16 PageID: 59 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 9 of 16 PageID: 60 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 10 of 16 PageID: 61 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 11 of 16 PageID: 62 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 12 of 16 PageID: 63 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 13 of 16 PageID: 64 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 14 of 16 PageID: 65 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 15 of 16 PageID: 66 Case 1:16-cv-04356-NLH-JS Document 10-3 Filed 02/17/17 Page 16 of 16 PageID: 67 PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, 4th Floor Camden, NJ 08101 Tel. 856-757-5139 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ANGELICIA JONES, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants. HON. NOEL L. HILLMAN Civil Action No. 16-4356 (NLH)(JS) Certificate of Service I hereby certify that on February 17, 2017, a copy of the Notice of Federal Defendants’ Motion to Dismiss, Brief in Support thereof, Declaration of Kimberly Herbstt and attached exhibits, Proposed Order, and this Certificate of Service were served by electronic filing on the Court’s ECF system as well as by first class mail to: Nicholas J. Renzi, Esq. Adams Renzi Law 1429 Walnut Street, 14th Floor Philadelphia, PA 19102 Attorney for Plaintiff PAUL. J. FISHMAN United States Attorney By: /s/ Jessica O’Neill_________ JESSICA R. O’NEILL Assistant U.S. Attorney Case 1:16-cv-04356-NLH-JS Document 10-4 Filed 02/17/17 Page 1 of 1 PageID: 68