The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court on Defendant United States of America's motion to dismiss Plaintiff's Amended Complaint for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). [Docket Item 14.] The Plaintiff filed timely opposition. [Docket Item 19.] For the reasons discussed below, the court will grant the Defendant's motion in its entirety and all claims against the United States will be dismissed.
Plaintiffs Ella Baker, individually and as guardian ad litem for Rayion Baker, and Benjamin Frye filed the instant action against the United States Marshal Service and the United States Department of Justice on January 26, 2012. [Docket Item 1.] The Plaintiffs brought tort claims, civil rights claims and constitutional claims against the United States Marshal Service and the United States Department of Justice.
In lieu of answering the complaint, these federal agencies filed a motion to dismiss [Docket Item 8] arguing that they were improper parties and instead, the United States of America was the only proper defendant.
The Plaintiffs elected to file an amended complaint [Docket Item 10] which eliminated the United States Marshal Service and the United States Department of Justice as parties, effectively mooting the motion to dismiss [Docket Item 17]. The Amended Complaint named the United States of America, the City of Camden, Chief of Police John Scott Thompson and John Does as Defendants. The Amended Complaint brought four separate claims against the United States, specifically: negligence (Count VI), "Civil Rights and § 1983 Claims" (Count VII), "§ 1985 Conspiracy Claims" (Count VIII), and a Federal Tort Claims Act ("FTCA") count (Count IX). [Docket Item 10.]
The United States then filed the instant motion to dismiss all Plaintiffs' claims against it for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) in lieu of filing an answer. The United States argues that the Plaintiffs' tort claims are barred by the Plaintiffs' failure to timely provide a sum certain for their respective administrative claims.*fn1 Next, the United States contends that Tattyana Baker's newly added tort claims must be dismissed because they are barred by the six-month provision in 28 U.S.C. § 2401(b). Finally, the United States maintains that the Plaintiff's civil rights claims brought pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985 must be dismissed because the United States is not a "person" within the meaning of these statutes. [Docket Item 13.]
The Plaintiffs filed opposition and argue that their claims under the Federal Tort Claims Act are not barred by the statute of limitations. The Plaintiffs maintain that they filed amended tort claim notices within two years of the incident and therefore their claims should be considered timely under 28 U.S.C. § 2401(b). The Plaintiffs further argue that Tattyana Baker should not be dismissed from this action because although she was not a named plaintiff in the original complaint, she was clearly contemplated as a party thereto and equity should allow her to proceed as a plaintiff. The Plaintiffs did not oppose the dismissal of their civil rights claims against the United States and conceded that the United States is not a "person" within the meaning of 42 U.S.C. § 1983 and 42 U.S.C. § 1985. [Docket Item 19.]
The United States, in reply, reiterated its arguments that the six-month limitations period prescribed by 28 U.S.C. § 2401(b), not the two year statute of limitations, applies to Plaintiff's tort claims since the administrative claims were finally denied by the federal agency and then later amended by the Plaintiffs more than a year after the final denial. The United States further argues that Tattyana Baker has failed to establish any grounds for equitable tolling and her claims in the Amended Complaint were filed well outside the statute of limitations prescribed by § 2401(b). Alternatively, the United States argues that dismissal is still warranted even if the court decides the tort claims are timely because the agency has not been given an opportunity to review the amended administrative claims with the required sum certain. [Docket Item 20.]
A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) which is filed prior to answering the complaint is considered a "facial challenge" to the court's subject matter jurisdiction. Cardio-Med. Assocs. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d. Cir. 1983). This is distinct from a factual attack on the court's subject matter jurisdiction which can only occur after the answer has been served. Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In deciding a Rule 12(b)(1) motion to dismiss which is filed prior to an answer, the court must "review only whether the allegations on the face ...