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Fofanah v. United States

United States District Court, D. New Jersey

January 27, 2014



JOSE L. LINARES, District Judge.

This matter comes before the Court by way of Defendant United States of America (hereinafter "Defendant")'s motion to dismiss pro se Plaintiff Latonia Fofanah ("Plaintiff")'s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). The motion remains unopposed. The Court has considered Defendant's submission in support of the instant motion and decides this motion without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, Defendant's motion is GRANTED and Plaintiff's Complaint is dismissed with prejudice.


On or about October 30, 2013, pro se Plaintiff filed a complaint in New Jersey Superior Court, Hudson County. (CM/ECF No. 1, Ex. 1.) Plaintiff's Complaint alleges slander and emotional distress against Stacy Brown, an employee of the United States Postal Service ("USPS"), and demands damages in the amount of $3, 000.00 plus costs. (CM/ECF No. 1, Ex. 1; see also Herbst Decl. at ¶ 4.) Plaintiff never filed an administrative tort claim with the Postal Service Law Department or with the Postal Service tort claim coordinators. (Herbst Decl. at ¶¶ 5, 6, 7.) On November 22, 2013, Paul Blaine, Assistant United States Attorney, Chief of the Civil Division, submitted a Certification of Scope of Employment pursuant to 28 U.S.C. § 2679. (CM/ECF No. 1, Ex 2.) The Certification of Scope of Employment stated that Defendant Stacy Brown was acting within the scope of his employment with the Federal Government at all relevant times. ( Id. )

On December 6, 2013, Defendant removed this action to this Court pursuant to 28 U.S.C. §§ 2679(d)(2), 1442. This Court's jurisdiction is premised on 28 U.S.C. § 1346. On December 17, 2013, Defendant filed the instant motion to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. (CM/ECF No. 2.)


Federal courts are courts of limited jurisdiction, and thus may adjudicate cases and controversies only as permitted under Article III of the Constitution. U.S. Const. art. III, § 2; see also Phila. Fed'n of Teachers, Local 3, AFL-CIO v. Ridge, 150 F.3d 319, 322-23 (3d Cir.1998). "A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction." Gould Elec., Inc. v. U.S., 220 F.3d 169, 176 (3d Cir.2000). "Facial attacks... contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true." Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.2006).

Federal courts must dismiss a complaint if a plaintiff cannot establish the existence of subject matter jurisdiction. See Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir.2006); see also Fed.R.Civ.P. 12(h)(3). In determining whether a pro se complaint asserts a valid basis for subject matter jurisdiction, the Court must be mindful to construe the complaint liberally in favor of the plaintiff. See, e.g., Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976)).


In moving to dismiss Plaintiff's Complaint, Defendant argues that this Court lacks subject matter jurisdiction because: (1) the United States is immune from suit under the Federal Tort Claims Act ("FTCA") for claims alleging slander; and (2) Plaintiff failed to file an administrative claim prior to filing the instant action, as required by the FTCA. ( See Def. Br. at 1.)

A. Sovereign Immunity Pursuant to 28 U.S.C. § 2680(h)

Plaintiff claims that the United States, substituted for Stacy Brown in this action[1], slandered Plaintiff and caused her emotional distress. (CM/ECF No. 1, Ex. 1.) In support of its motion to dismiss, Defendant argues that it is entitled to sovereign immunity for slander and any resulting emotional distress claims pursuant to the FTCA. (Def. Br. at 6.)

It is well established that the United States, "as sovereign, is immune from suit save as it consents to be sued." U.S. v. Sherwood, 312 U.S. 584, 586 (1941). Such immunity ultimately "shields the Federal Government and its agencies from suit." Loeffler v. Frank, 486 U.S. 549, 554 (1988). In the instance where the United States does consent to be sued, "the terms of [the] waiver of sovereign immunity define[] the extent of the court's jurisdiction." U.S. v. Bein, 214 F.3d 408, 412 (3d Cir. 2000). In the instance of such a waiver, it "must be express and unambiguous to confer subject matter jurisdiction on a court." Treasurer of N.J., v. U.S. Dep't. of Treasury, 684 F.3d 382, 396 (3d Cir. 2012); Clark v. Wells Fargo Bank, U.S., CIV. A. 13-1293, 2013 WL 1680178 at *2 (D.N.J. Apr. 16, 2013). The Supreme Court has further explained that "a waiver of sovereign immunity must be strictly construed in favor of the sovereign." Treasurer of N.J., 684 F.3d at 396 (internal citation omitted).

The FTCA acts as a limited waiver of the United States's sovereign immunity and makes the United States "liable in the same manner and to the same extent as a private individual under like circumstances."[2] See Dolan v. U.S. Postal Serv., 546 U.S. 481, 485 (2006) (internal citations and quotations omitted); see also White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). Specifically, "the FTCA qualifies its waiver of sovereign immunity for certain categories ...

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