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Blumberg v. Rolle

United States District Court, D. New Jersey

April 9, 2019

LORRAINE BLUMBERG, Administratrix of the Estate of Richard Blumberg, and individually, and in her own right, Plaintiff,
v.
WILLIAM J. ROLLE, JR., FRM JR. TRUCKING INC., UNITED STATES POSTAL SERVICE, Defendants.

         APPEARANCES

          KENNETH F. FULGINITI SARAH FILIPPI DOOLEY DUFFY PARTNERS On behalf of Plaintiff.

          MARC R. JONES CIPRIANI & WERNER PC, On behalf of Defendant William J. Rolle, Jr. and FRM Jr. Trucking, Inc.

          JOHN TUDOR STINSON, JR. OFFICE OF THE U.S. ATTORNEY DISTRICT OF NEW JERSEY On behalf of Defendant United States Postal Service.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This matter concerns claims by Plaintiff arising out of a collision involving a car occupied by Plaintiff and her husband and a tractor trailer transporting mail for the United States Postal Service. USPS has moved to dismiss Plaintiff's claims for lack of subject matter jurisdiction. For the reasons expressed below, USPS's motion will be denied.

         BACKGROUND

         According to Plaintiff's complaint, on July 6, 2017, Plaintiff, Lorraine Blumberg, and her husband, Richard Blumberg, were driving through an intersection in Marlton, New Jersey when Defendant, William Rolle, Jr., who was driving a tractor trailer containing USPS mail, ran a red light and struck the Blumbergs' car. Both Plaintiff and her husband sustained serious injuries. Richard Blumberg died from his injuries two months later.

         Plaintiff, on her behalf and on behalf of her husband's estate, has brought a four-count complaint for negligence, negligent infliction of emotional distress, wrongful death, and a survival action, against Rolle, the trucking company he worked for, Defendant FRM Jr. Trucking, Inc., and USPS. Rolle and FRM have filed cross-claims for contribution and indemnification against USPS.[1]

         Because an agency of the United States is a Defendant, [2]Plaintiff brought her claims in this Court pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401, 2671-80.[3] Plaintiff claims that Rolle “acted as an agent, workman, employee and/or servant” of USPS at the time of the accident, and that USPS had a duty to properly hire and supervise “employees and drivers” involved in this matter. Plaintiff seeks to hold USPS liable for the alleged negligence of Rolle and FRM (respondeat superior), and for its own liability for its alleged negligent hiring, training, and supervision of Rolle and FRM, and its alleged failure to timely discharge Rolle and FRM.

         USPS has moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Civil Procedure Rule 12(b)(1). USPS argues that FRM is an independent contractor engaged by the USPS to transport mail pursuant to a detailed, written contract. Under the terms of such contract, USPS contends that FRM bore all responsibility for its trucks, drivers, and the performance of FRM's duties under the contract. USPS further contends that FRM agreed to bear all liability for harm to persons and property, and to indemnify USPS from any and all tort liability, in connection with FRM's performance under the contract.

         USPS therefore argues that under the FTCA and its limited waiver of sovereign immunity, a plaintiff is barred from bringing an action against the United States to recover for damages for the allegedly negligent conduct of an independent contractor or the contractor's employee. USPS further argues that the FTCA does not waive sovereign immunity for claims of negligent hiring, training, supervision, and timely discharge because it is a discretionary function for which it is entitled to sovereign immunity.

         Plaintiff argues that Rolle and FRM are not independent contractors but rather employees of USPS due to USPS's control over their actions. Plaintiff further contends that the discretionary function exception does not apply to her claims against USPS. Plaintiff also argues that USPS's motion is premature because there has been no discovery as to USPS's control and supervision of Rolle and FRM, and the contract between Rolle and FRM, standing alone, does not negate Plaintiff's claims.[4]

         DISCUSSION

         A. Subject ...


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