United States District Court, D. New Jersey
FALIVENE Appearing pro se.
B. TAYLOR OFFICE OF THE U.S. ATTORNEY On behalf of Defendant.
L. HILLMAN, U.S.D.J.
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.
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.
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.
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.
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.
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
Rule 12(b)(1) Standard
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)).
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 ...