United States District Court, D. New Jersey
ALLEN M. JOHNSON, Plaintiff,
NEW JERSEY DOOR WORKS, INC., UNITED STATES OF AMERICA, DEPARTMENT OF VETERANS AFFAIRS, and JOHN DOE, a fictitious name, Defendants.
MARY L. COOPER, District Judge.
The plaintiff, Allen M. Johnson ("Johnson"), brought this action against the defendants, New Jersey Door Works, Inc., United States of America, Department of Veterans Affairs (the "VA"), and John Doe, a fictitious name (collectively, the "defendants"), to recover damages for personal injuries. (See dkt. entry no. 17, 2d Am. Comp.) The VA now moves to dismiss the Second Amended Complaint, insofar as it is asserted against the VA, pursuant to Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)"), for lack of subject-matter jurisdiction, arguing that the claims asserted against the VA are barred by the Federal Tort Claims Act ("FTCA"). (See dkt. entry no. 24, Notice of Mot. & Br.) Johnson opposes the Motion. (See dkt. entry no. 26, Opp'n Br.)
The Court will resolve the Motion on the papers and without oral argument pursuant to Local Civil Rule 78.1(b). The Court, for the reasons stated herein, will grant the Motion.
I. LEGAL STANDARDS
A. Motion to Dismiss
A defendant may move to dismiss for lack of subject-matter jurisdiction at any time. See Iwanowa v. Ford Motor Co. , 67 F.Supp.2d 424, 437-38 (D.N.J. 1999); see also Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). "A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction." Gould Elecs. Inc. v. United States , 220 F.3d 169, 176 (3d Cir. 2000). Under either challenge, the plaintiff has the burden of persuasion to convince the Court it has jurisdiction. See id. at 178.
When reviewing a facial attack, the Court assumes the allegations in the complaint are true, and may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject-matter jurisdiction. See Cardio-Med. Assocs., Ltd. v. Crozer-Chester Med. Ctr. , 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa , 67 F.Supp.2d at 438. When reviewing a factual challenge, in contrast, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." See Mortensen v. First Fed. Savs. and Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977). The Court may consider affidavits, depositions, and testimony to resolve factual issues, and the Court is free to weigh the evidence to satisfy itself as to the existence of its power to hear the case. See Iwanowa , 67 F.Supp.2d at 438. The Motion concerns a factual challenge, and thus the Court is permitted to look beyond the pleadings. See Medina v. City of Phila. , 219 Fed.Appx. 169, 172 (3d Cir. 2007) (finding defendant's motion to dismiss based on plaintiff's failure to exhaust remedies under the FTCA to be factual attack on jurisdiction); Arias v. United States, No. 05-4275 , 2007 WL 608375, at *2 (D.N.J. Feb. 23, 2007) (same).
B. The FTCA
"It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued..., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell , 445 U.S. 535, 538 (1980) (internal quotation marks omitted). "A waiver of sovereign immunity cannot be implied but must be unequivocally expressed." Id . (internal quotation marks omitted). "[F]ederal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, expressly and unequivocally waives the United States' immunity to suit." United States v. Bein , 214 F.3d 408, 412 (3d Cir. 2000).
The FTCA waives sovereign immunity for claims against the United States seeking monetary damages where the injury results from a "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant." See 28 U.S.C. § 1346(b)(1). Such a claim, however, "shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." See 28 U.S.C. § 2401(b) (emphasis added). For purposes of 28 U.S.C. § 2401(b), "a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 [("SF-95")] or other written notification of an incident...." 28 C.F.R. § 14.2(a).
"A claim shall be presented to the Federal agency whose activities gave rise to the claim.... A claim shall be presented as required by 28 U.S.C. 2401(b) as of the date it is received by the appropriate agency." 28 C.F.R. § 14.2(b)(1). The plaintiff carries the burden of proof to establish presentment of the claim to the appropriate agency. See Medina , 219 Fed.Appx. at 172. The plaintiff "must offer proof of actual receipt of the claim [by the appropriate agency] (or strong evidence from which receipt can be inferred) to satisfy the two year limitation in § 2401(b)". See id. at 173 (dismissing FTCA claim where plaintiff offered no proof, other than unsigned letter and her attorney's affidavit indicating that her attorney sent claim on particular date).
II. FINDINGS OF FACT
Johnson was an employee of Mile Square Roofing Company and was working at a job site located at the VA in Lyons, New Jersey. (See Br. at 2; Opp'n Br. at 6.) Johnson alleges that on July 15, 2010, while working at the VA job site, he was struck on the head by a garage door motor, causing him severe personal injuries. (See id.) Johnson filed a Complaint on July 13, 2012, initially naming the VA and New Jersey Door Works, Inc. as defendants. (See id.; see generally dkt. entry no. 1, Compl.) Johnson alleges that the defendants' negligence caused his injuries. (See Br. at 2; Opp'n Br. at 6.) Johnson voluntarily dismissed the claims asserted against the VA on December, 14, 2012. (See Br. at 2; Opp'n Br. at 6.) On June 3, 2013, Johnson filed a Second Amended Complaint, which again named the VA as a defendant. (See id.; see generally 2d Am. Compl.)
Johnson and the VA disagree as to the precise date Johnson's SF-95 was presented to the VA. Johnson alleges that he served the VA with a completed and signed copy of the SF-95 via personal service on July 13, 2012. (See Opp'n Br. at 7.) James Pfeiffer, Sr. was hired by Johnson's attorney to be a courier and hand deliver the SF-95 to the VA. (See id.) Mr. Pfeiffer is the father of Johnson's attorney. (See dkt. entry no. 26-2, Certification of James Pfeiffer, Sr.) Johnson states that when Mr. Pfeiffer arrived at the VA building, he was directed to go to a specific building on the campus in order to properly serve the SF-95. (See Opp'n Br. at 7.) Mr. Pfeiffer allegedly proceeded to serve the SF-95 on the individual working at the front desk of the ...