United States District Court, D. New Jersey
D. WIGENTON United States District Judge
this Court is Defendant, the United States of America's
Motion to Dismiss Plaintiff Peter Circelli's Complaint
pursuant to Federal Rule of Civil Procedure
("Rule") 12(b)(1). This Court has jurisdiction
pursuant to 28 U.S.C. § 1346. This opinion is issued
without oral argument pursuant to Rule 78. For the reasons
stated herein, Defendant's Motion to Dismiss is
BACKGROUND AND PROCEDURAL HISTORY
civil action arises out of a motor vehicle accident.
Plaintiff alleges that on July 20, 2015, an employee of the
United States Postal Service ("USPS") negligently
caused the USPS vehicle she was driving to collide with the
County Collision and Towing LLC ("County
Collision") vehicle Plaintiff was operating. (Compl.
¶¶ 4-5, 7, 9, ECF No. 1.) On August 6, 2015,
Plaintiff submitted a Claim for Damage, Injury, or Death
("Standard Form 95") to USPS to recover for
personal injuries and property damage from the accident.
(Standard Form 95, ECF No. 12-3.) At the time Plaintiff
submitted his claim, he requested $12, 149.85 in property
damage. (Id.) Plaintiff did not provide USPS with a
sum certain as to his personal injuries, and instead wrote:
"under treatment." (Id.) On February 22,
2016, USPS issued a check payable to County Collision for
$12, 149.85, "in full and final settlement of the claim
filed[.]" (Settlement Letter, ECF No. 12-4.) On or about
February 29, 2016, the check was cashed. (Settlement Check,
ECF No. 12-5.)
19, 2017, Plaintiff filed this action to recover damages for
personal injuries arising from the same collision. (See
generally Compl.) On January 12, 2018, Defendant moved
to dismiss the action. (ECF No. 12.) Plaintiff submitted his
opposition on February 6, 2018, and Defendant replied on
March 6, 2018. (ECF Nos. 15, 18.)
Rule 12(b)(1), a defendant may move to dismiss a complaint
for lack of subject matter jurisdiction by making a
"facial" or "factual" challenge,
"and the 'distinction determines how the pleading
must be reviewed.'" S.D. v. Haddon Heights Bd.
of Educ, No. 15-1804, 2018 U.S. App. LEXIS 2384, at *9
n.7 (3d Cir. Jan. 31, 2018) (citing Constitution Party of
Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014)).
"Under either challenge, plaintiff bears the burden of
persuasion to show the court has jurisdiction."
White-Squire v. U.S. Postal Serv., No. 08-3486, 2009
U.S. Dist. LEXIS 8832, at *7 (D.N.J. Feb. 6, 2009) (citing
Gould Elecs. v. United States, 220 F.3d 169, 176 (3d
Cir. 2000)). In analyzing a facial attack, "the court
must only consider the allegations of the complaint and
documents referenced therein and attached thereto[.]"
Aichele, 757 F.3d at 358 (citing In re
ScheringPlough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 243 (3d Cir. 2012)). In analyzing
a factual attack, the court "may look beyond the
pleadings to ascertain the facts[.]" Id.
this case concerns a factual challenge, this Court may look
beyond the pleadings and consider the Standard Form 95,
settlement letter, and settlement check.
White-Squire, 2009 U.S. Dist. LEXIS 8832, at *8
(citing Medina v. City of Phila., 219 Fed.Appx. 169,
172 (3d Cir. 2007) (finding that defendant's motion to
dismiss, which was based on plaintiff s failure to exhaust
administrative remedies under the Federal Tort Claims Act
("FTCA"), was a factual attack on the district
court's subject matter jurisdiction)).
United States is immune from suit unless Congress
unequivocally waives sovereign immunity. United States v.
Mitchell, 445 U.S. 535, 538 (1980).
The [FTCA] waives sovereign immunity for claims against the
United States seeking monetary damages where the injury
results from a 'negligent ... act ... 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.'
White-Squire, 2009 U.S. Dist. LEXIS 8832, at *9-10
(quoting 28 U.S.C. § 1346(b)(1)).
Plaintiffs Failure to Exhaust Administrative
FTCA has explicit exceptions to its waiver of sovereign
immunity, including the requirement that a claimant first
exhaust available administrative remedies." Id.
at *10 (citing 28 U.S.C. § 2675(a)). This means that
Plaintiff must have filed a claim with USPS within two years
of his claim accruing, and received a final denial of that
claim, prior to commencing this litigation. Id.; 28
U.S.C. § 2401(b). It is Plaintiffs burden to establish
that USPS "was given (1) written notice of the [personal
injury] claim sufficient to enable the [USPS] to investigate,
and (2) the value of the claim." White-Squire,