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Dominick W. andrews v. United States of America

October 24, 2012

DOMINICK W. ANDREWS, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Renee Marie Bumb United States District Judge

[Docket Nos. 10, 15 and 21]

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon several motions:

1. a motion to dismiss for lack of jurisdiction by Defendants New Jersey Attorney General, New Jersey State Police, and State of New Jersey (the "State Defendants") [Docket No. 10];

2. a motion to dismiss filed by Defendants Atlantic County Prosecutors, Atlantic County Sheriff, and Atlantic County New Je3rsey (the "County Defendants") [Docket No. 15];

3. a motion to dismiss for lack of Jurisdiction by Defendants Federal Bureau of Investigation, and the United States of America (the "Federal Defendants") [Docket No. 21].*fn1

I. Background

This action was commenced on May 24, 2012. In the lengthy 34 page complaint, containing 204 separate paragraphs, Plaintiff Dominick Andrews alleges that the Federal, County and State Defendants have violated his Federal and New Jersey civil and constitutional rights by not protecting him from crimes allegedly committed against him by his uncle.*fn2 Andrews alleges that these Defendants have failed to prosecute his uncle and have failed to stop the uncle from attempting to collect on court judgments the uncle has obtained against Andrews (apparently in the Superior Court of New Jersey), totaling $600,000.00. He also asserts that the various defendants have all breached fiduciary duties owed to him, inflicted severe emotional distress, and caused loss of income and quality of life. Defendants generally aver that Plaintiff, without any legal basis, is attempting to avoid his liability for the judgments entered against him and in favor of his uncle by alleging that the Defendants are unlawfully complicit in causing these judgments to be entered against him.

II. Legal Analysis

A. Federal Defendants' Motion

It is long and well established that the United States, its agencies and instrumentalities, are immune from suit except as Congress has expressly consented and that upon such consent, suit may be brought only in accordance with the strictest observance of and adherence to its statutory terms. Moreover, the precise terms of that consent define any court's jurisdiction to entertain an action brought pursuant to it. See, e.g., Federal Aviation Admin. v. Cooper, (2012); Orff v. United States, 545 U.S. 596, 601-02 (2005); United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 (1999).

In his complaint, Plaintiff raises numerous asserted causes of action against the Federal Defendants, primarily based on theories of violation of specified rights under the Constitution of the United States or the State of New Jersey. (Complaint, Counts One through Seven.) *fn3 However, it is well recognized that the sovereign immunity of the United States and its agencies against such claims has not been waived by Congress. As a result, the action is barred and the Court is without subject matter jurisdiction over the various constitutional claims Andrews raises. See, F.D.I.C. v. Meyer, 510 U.S. 471, 483-84 (1994); Bethea v. Roizman, 2012 WL 2500592, *25-26 (D.N.J. June 27, 2012); Wilson v. City of Cherry Hill, 2011 WL 3651274, *6 (D.N.J. Aug. 18, 2011); Abulkhair v. Bush, 2010 WL 2521760, *4 (D.N.J. June 14, 2010), aff'd 413 Fed. Appx. 502 (3d Cir. 2011). In addition, Congress has made it explicitly clear that the United States cannot be sued for alleged violations of federal constitutional or statutory rights. 28 U.S.C. § 2679(b)(2).

Moreover, in the absence of an express waiver, the Federal Defendants cannot be liable for the purported violation of rights established under the New Jersey Constitution, as the Defendants are similarly immune from any such claims. E.g., Bethea, supra 2012 WL 2500592 at *25. As the Plaintiff in this action, it is Andrews' burden to plead and demonstrate that the Court has subject matter jurisdiction over the claims he is attempting to pursue. Fed. R. Civ. P. 8(a)(1); Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009); Grand Entertainment Group v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d Cir. 1993); Smith v. United States, 2009 WL 2059421, *2 (D.N.J. July 7, 2009). In fact, because federal courts are courts of limited jurisdiction, in the absence of the necessary waiver, the presumption is that there is no jurisdiction. E.g., Marcus v. Kansas Dept. of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). See also, Philadelphia Federal Teachers [Etc.] v. Ridge, 150 F.3d 319, 323 (3d Cir. 1998), quoting Renne v. Geary, 501 U.S. 312, 316 (1991).

Accordingly, Counts One through Seven of the Complaint are dismissed as against the Federal Defendants. As to the remaining three counts, sounding in tort in which Andrews raises conclusory allegations, they are governed by the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. ("FTCA"). The FTCA is recognized as a limited waiver of the sovereign's immunity from suit. Fields v. United States, 2010 WL 715720, *2 (D.N.J. Feb. 24, 2010), citing Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003). The only proper defendant in an action brought under it is the United States itself, and not a federal agency. 28 U.S.C. §§ 1346(b)(1), 2674, ...


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