Falivene v. United States Postal Service

          JOHN FALIVENE Appearing pro se.

          ANNE B. TAYLOR OFFICE OF THE U.S. ATTORNEY On behalf of Defendant.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This matter concerns a breach of contract claim by Plaintiff arising out of his lease agreement with Defendant, United States Postal Service (“USPS”). Defendant withheld rent to recover the costs of making repairs to the parking lot of the property. Plaintiff initiated the suit in New Jersey State Court and Defendant removed the case to this Court. Presently before the Court is Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction. For the reasons expressed below, this Court will grant Defendant's motion and transfer the case to the Federal Court of Claims.

         BACKGROUND

         Plaintiff John Falivene owns the property at 807 West White Horse Pike in Cologne, New Jersey and leases it to Defendant. The original lease was entered into in early 2012 and has been renewed through May 31, 2021 without amendment.

         The lease includes the “General Conditions to the U.S. Postal Service Lease” (“General Conditions”) and an incorporated maintenance rider (“Maintenance Rider”). The Maintenance Rider describes the responsibilities of the landlord to make timely repairs and reserves the right of the Postal Service contracting officer “to perform the work (by contract or otherwise), and withhold the cost plus any administrative cost and/or interest, from rental payments due or to become due under [the] lease” should the landlord fail to undertake repairs after being advised of the need for such repairs. (Def.'s Mot. to Dismiss, Ex. A 10.) The General Conditions provision includes a choice of law provision stating that the lease is governed by the Contract Disputes Act of 1978 (“CDA”). (Def.'s Mot. to Dismiss, Ex. A 6); 41 U.S.C. §§ 7101-09.

         On September 8, 2015, Defendant notified Plaintiff that deep potholes in the customer parking lot created a safety issue. Plaintiff was asked to repair the potholes by October 8, 2015. On November 30, 2015 Defendant sent Plaintiff a Notice of Maintenance Enforcement advising Plaintiff of his failure to complete the requested maintenance, the ongoing need for the repairs, and the Defendant's intention to have the work performed and deduct the cost from the rent, consistent with the provisions in the Maintenance Rider. On or around March 11, 2016, the potholes were filled in by a company contracted by Defendant's contracting officer. In June 2018, Plaintiff was notified of the decision by the Defendant's contracting officer to implement a rental reduction schedule as a result of incurring the cost of repairing the potholes, totaling $8901.78. (Def.'s Mot. to Dismiss, Ex. B 1.) From August 1, 2018 through February 1, 2019 Defendant planned to deduct $1, 201 from each month's rent. The remaining $494.78 was to be deducted on March 1, 2019.

         Plaintiff filed an action in New Jersey Superior Court, Small Claims Section to recover the withheld rent, alleging that Defendant incorrectly deducted rent for the repairs because the work was completed on property not owned by Plaintiff. Defendant removed the case to this Court under 28 U.S.C. § 1442(a)(1) and filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction.

         Before this Court is Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Plaintiff's opposition. This Court considers the issue fully briefed and ripe for adjudication.

         ANALYSIS

         1. Rule 12(b)(1) Standard

         Under Federal Rule of Civil Procedure 12(b)(1), a claim can be dismissed for “lack of jurisdiction over the subject matter.” A motion under Rule 12(b)(1) “‘attacks the right of a plaintiff to be heard in Federal Court.'” Doughty v. U.S. Postal Serv., 359 F.Supp.2d 361, 364 (D.N.J. 2005) (quoting Cohen v. Kurtzman, 45 F.Supp.2d 423, 428 (D.N.J. 1999)). There are two types of Rule 12(b)(1) motions: one which presents a “facial challenge” and one which presents a “factual challenge.” See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (citing In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)); Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).

         If a motion to dismiss presents a “facial attack, ” a court must assume the allegations in a complaint are true and may only dismiss claims when the pleadings fail to present an action within a court's jurisdiction. Mortensen, 549 F.2d at 891. “[I]n that respect such a Rule 12(b)(1) motion is similar to a Rule 12(b)(6) motion.” Petruska, 462 F.3d at 302 ...