KEVIN McNULTY, District Judge.
This matter comes before the Court on the motion of the United States Transportation Security Administration ("TSA") to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction based on sovereign immunity and the statute of limitations, and pursuant to Fed.R.Civ.P. 12(b)(2) for failure to complete proper service. (Docket No. 16). Because I find that the statute of limitations expired before this complaint was filed, it will be dismissed with prejudice against the TSA. Because the dismissal of the Complaint as against the TSA leaves no independent basis for subject matter jurisdiction over the claims against Continental, the Complaint will also be dismissed against Continental pursuant to Fed.R.Civ.P. 12(b)(1).
The Plaintiff, Nelsy Hernandez, claims that jewelry was stolen from her checked luggage when she took a Continental Airlines flight from Newark, New Jersey, to San Juan, Puerto Rico, on May 26, 2010. Compl. (Docket No. 1) at 1. Hernandez's Complaint, brought against the TSA and Continental Airlines, demands $22, 654.00 for the value of the jewelry and an additional $50, 000 for unspecified "personal injury." Id.
Hernandez first presented a timely administrative tort claim to the TSA, as required by the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 2675(a); Decl. of Robert Grimes (Docket No. 20-3) ¶ 2, Ex. A. The TSA formally denied the claim in writing by sending a certified letter to the Plaintiff and her husband, Jose Hernandez, on January 26, 2011. Grimes Decl. ¶ 3, Ex. B. ("Denial Letter"). The Denial Letter informed the Plaintiff that if she was "dissatisfied" with the denial of her claim, she could file suit in "an appropriate U.S. District Court not later than six months" after the date the letter was mailed. Id.
On July 25, 2011, Hernandez filed the first of her two federal court actions. That action, like this one, was brought against the TSA and Continental Airlines. Originally filed in the Eastern District of New York, the action was transferred to the District of New Jersey on July 29, 2011. Transfer Order, 11-cv-4401 (Docket No. 3). The district judge in that first action, Hon. Faith S. Hochberg, dismissed the case against both Defendants on March 3, 2012. Order, 11-cv-4401 (Docket No. 24). As to Continental, the Order dismissed the Complaint for lack of subject matter jurisdiction. The only damages allegation was for $22, 654, the value of the jewelry. Judge Hochberg's Order also noted that Continental's Contract of Carriage limits the Plaintiff's potential recovery to $3, 300 as a matter of law. Id. Judge Hochberg thus found that the Plaintiff had failed to surmount the $75, 000 amount-in-controversy threshold for diversity jurisdiction. Id; see 28 U.S.C. § 1332(a).
The only other defendant, TSA, was never properly served in that earlier action. See id. ; 11-cv-4401 (Docket Nos. 19, 26). Consequently, the entire action was dismissed. Order (Docket No. 24). Hernandez did not seek leave to extend the deadline to serve TSA, move for reconsideration, move to reopen the judgment, or appeal.
Instead, on May 1, 2012, Hernandez filed a second Complaint in the Eastern District of New York, asserting virtually the same claim regarding her jewelry against the same defendants. Compl. at 1. Again, the case was transferred to the District of New Jersey. (Docket Nos. 5, 6). That second case is the one now before this Court.
The Clerk of the Court issued a summons on May 14, 2012. (Docket No. 10). The summons for the TSA was returned executed on July 6, 2012, and that for Continental Airlines on January 1, 2013. (Docket Nos. 13, 15). On December 14, 2012, Assistant United States Attorney Pamela R. Perron sent Hernandez a letter informing her that her attempted service of process on the TSA did not comply with Fed.R.Civ.P. 4(i). (Docket No. 14). As noted in that letter, neither the Attorney General nor the United States Attorney for the District of New Jersey was served, as required. See id. The letter further stated that the Complaint was subject to dismissal because service had not been completed within 120 days of filing the Complaint pursuant to Fed.R.Civ.P. 4(m), that the case was filed too late, and that the claims were barred by Judge Hochberg's dismissal with prejudice of the earlier action. Id. at 1 - 2.
In connection with TSA's motion to dismiss, filed on March 20, 2013, AUSA Perron submitted a Declaration. Her Declaration states that the U.S. Attorney's Office for the District of New Jersey was not served; it received a copy of the Complaint only on January 11, 2013, together with the order transferring the case to the District of New Jersey. Decl. of Pamela Perron (Docket No. 16-2) ¶ 11, Ex. 11. The Declaration also states that the U.S. Attorney General's Office has not been served. Id. ¶ 12, Ex. 12.
Continental Airlines did not join in TSA's motion or file an Answer to the Complaint.
TSA brings its motion to dismiss the complaint on the bases of sovereign immunity, statute of limitations, and defective service. Sovereign immunity and the expiration of the statute of limitations pertain to the Court's subject matter jurisdiction and are considered under Fed.R.Civ.P. 12(b)(1). The Plaintiff has the burden of establishing that subject matter jurisdiction exists. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Service of process is assessed under Fed.R.Civ.P. 12(b)(5), which governs dismissal for insufficient service of process; Fed.R.Civ.P. 4(i), which governs service of the United States and its agencies; and Fed.R.Civ.P. 4(m), which requires dismissal if a defendant is not served within 120 days of the filing of the complaint.
Here, lack of subject matter jurisdiction provides grounds for dismissal under Fed.R.Civ.P. 12(b)(1). A Rule 12(b)(1) challenge may be either facial or factual. See 2 MOORE'S FEDERAL PRACTICE § 12.30 (3d ed. 2007); Mortensen, 549 F.2d at 891 (3d Cir. 1977). A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 438 (D.N.J. 1999). A court considering such a facial challenge assumes that the allegations in the complaint are true, and may dismiss the complaint only if it nevertheless appears that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. Cardio-Med. Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F.Supp.2d at 438. A factual challenge, however, attacks subject-matter jurisdiction by challenging the truth (or completeness) of the jurisdictional allegations set forth in the complaint. Mortensen, 549 F.2d at 891. Thus a factual jurisdictional proceeding may not occur until the plaintiff's allegations have been controverted. Id. at 891 n. 17. In a factual challenge, the Court may consider evidence outside the pleadings. See United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d. Cir. 2007) (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997); Mortenson, 549 F.2d at 891 (3d Cir. 1977).
The TSA's motion, which includes factual material extrinsic to the Complaint, will be deemed a factual attack on the Court's subject matter jurisdiction. Def. Br. (Docket No. 16-1) at 4.
A. Motion to Dismiss Claims ...