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Hammond v. Kim

United States District Court, Third Circuit

August 26, 2013



ESTHER SALAS, District Judge.

This matter comes before the Court by way of a motion to dismiss for lack of jurisdiction brought by Defendants the United States of America, [1] the United States Marshals Service (improperly named "US Marshalls Service"), and United States Department of Justice (collectively, the "Federal Defendants"). (D.E. No. 3). Plaintiffs Tiffany Hammond and Tammy Hammond ("Plaintiffs" or the "Hammonds") did not oppose the motion. The Court has considered the briefs submitted in support of the present motion, and decides the matter without oral argument pursuant to Fed.R.Civ.P. 78(b). For the reasons set forth below, the Court GRANTS Defendant's motion.


This instant matter stems from a multi-vehicle accident that allegedly occurred on September 9, 2011, on the New Jersey Turnpike in Elizabeth, New Jersey. (Complaint ¶ 11, D.E. No. 1). Plaintiffs allege that Defendants Janice Kim and Oscar Alvarez-Matta negligently operated their vehicles so as to rear-end the vehicle being driven by Plaintiff Tiffany Hammond and in which Plaintiff Tammy Hammond was a passenger. (Id.). Plaintiffs filed suit in the Superior Court of New Jersey on October 10, 2012, which Complaint was removed to this Court on January 22, 2013. (D.E.



A 12(b)(1) challenge may involve either a facial challenge to subject matter jurisdiction or a factual challenge to the jurisdictional allegations. Gould Elec., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). If the defendant's attack is facial-i.e., "asserting that the complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction"-a court must accept all allegations in the complaint as true. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006). Alternatively, a defendant may "challenge a federal court's jurisdiction by factually attacking the plaintiff's jurisdictional allegations as set forth in the complaint." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A factual challenge attacks the existence of a court's subject matter jurisdiction apart from any of the pleadings and, when considering such a challenge, a presumption of truthfulness does not attach to a plaintiff's allegations." Id. ; see also Martinez v. U.S. Post Office, 875 F.Supp. 1067, 1070 (D.N.J. 1995

"An attack on subject matter jurisdiction that is based on a lack of administrative exhaustion is a factual challenge and not a facial one." See, e.g., J.H. ex rel. J.H. v. Egg Harbor Twp. Bd. of Educ., No. 08-488, 2009 WL 1322514, at *2 (D.N.J. May 11, 2009); Courtney v. Choplin, 195 F.Supp.2d 649, 650 (D.N.J. 2002). When reviewing such a factual attack, the Court may consider evidence outside the pleadings. Id. at 3.


The Federal Defendants argue that the Court lacks subject matter jurisdiction because Plaintiffs failed to file their lawsuit within six months of the denial of their administrative claims. (The Federal Defendants' Memorandum of Law in Support of Their Motion to Dismiss ("Fed. Defs. Br."[3]

It is well settled that the United States "may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." Martinez , 875 F.Supp. at 1071 (citation omitted). The Federal Tort Claims Act ("FTCA") operates as a limited and conditional waiver of the United States' sovereign immunity, and must be strictly construed in favor of the sovereign. White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010

In 28 U.S.C. § 2401(b) of the FTCA, Congress provided

[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal Agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

Id. (emphasis added). Thus, "[t]he FTCA has mandatory administrative claims procedures with which a plaintiff must comply prior to filing suit; if they are not followed, sovereign immunity is not waived, and the court lacks subject matter jurisdiction over plaintiff's claim." Clark v. Wells Fargo Bank, No. 13-1203, 2013 WL 1680178, at *2 (D.N.J. Apr. 16, 2013) (citation omitted & ...

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