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MATSKO v. U.S.

September 30, 2005.

JOHN J. MATSKO, III, and TERESA A. MATSKO, Plaintiffs,
v.
UNITED STATES OF AMERICA, and RUDY KOTOR Defendants.



The opinion of the court was delivered by: JOY CONTI, District Judge

MEMORANDUM OPINION

Pending before this court is a partial motion to dismiss filed by defendant United States of America (the "United States" or "government") seeking dismissal of paragraph 13 of plaintiffs' amended complaint for lack of subject-matter jurisdiction. Plaintiffs John J. Matsko, III ("plaintiff-husband") and Teresa A. Matsko ("plaintiff-wife") (collectively, "plaintiffs") commenced a civil action against the government and Rudy Kotor ("defendant Kotor") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et. seq. alleging that defendant Kotor injured plaintiff-husband during the course of defendant Kotor's employment as a mine inspector for the Mine Safety Health Administration ("MSHA") of the Department of Labor, an agency of the United States.

Previously, the government filed a motion to dismiss plaintiffs' amended complaint arguing that this court lacks subject-matter jurisdiction over both defendants and thus this case should be dismissed in its entirety. The court granted the government's motion to dismiss. Plaintiffs appealed to the United States Court of Appeals for the Third Circuit. The court of appeals affirmed in part and reversed in part, agreeing with the court that the FTCA does not waive the United States' immunity for intentional assaults by government workers who are acting outside the scope of their employment, but holding that insofar as plaintiffs claim that the United States is liable for the negligence of defendant Kotor's supervisors and coworkers, then the lawsuit should not have been dismissed. Matsko v. United States, 372 F.3d 556, 557 (3d Cir. 2004). The court of appeals remanded the case for further proceedings consistent with its opinion. Id.

  Pending before the court now is the government's partial motion to dismiss paragraph 13 of the amended complaint for lack of subject-matter jurisdiction pursuant to Rules 12(b)(1), 12(b)(2), and 12(h)(3) of the Federal Rules of Civil Procedure. The government argues that plaintiff-wife failed to exhaust her administrative remedies before filing this civil action as required by the FTCA and, therefore, paragraph 13 of the amended complaint should be dismissed for lack of subject-matter jurisdiction.

  Standard of Review

  The government files this partial motion to dismiss pursuant to Rules 12(b)(1), 12(b)(2), and 12(h)(3) of the Federal Rules of Civil Procedure. When a Rule 12 motion is based on more than one ground, the court should consider the Rule 12(b)(1) challenge first because if the court must dismiss the complaint for lack of subject-matter jurisdiction, all other defenses and objections become moot. In re Corestates Trust Fee Litig., 837 F.Supp. 104, 105 (E.D.Pa. 1993) (Buckwalter, J.), aff'd, 39 F.3d 61 (3d Cir. 1994). Because the court bases its decision on the Rule 12(b)(1) challenge, the court does not consider other grounds for the motion pursuant to Rules 12(b)(2) and 12(h)(3).

  A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction raises the issue of whether the court has the power to hear the matter before it. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). The plaintiff always has the burden of persuasion and must prove that subject-matter jurisdiction exists. Mortensen, 549 F.2d at 891.

  A motion to dismiss for lack of subject-matter jurisdiction may facially or factually challenge the court's jurisdiction. Id. A facial challenge is a technical defect that occurs when the allegations in the complaint do not sufficiently illustrate the court's jurisdiction. 5A CHARLES ALAN WRIGHT & ARTHUR. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (2d ed. 1990). In that instance, a court may only look at the complaint and any attachments thereto to determine whether subject-matter jurisdiction exists. Mortensen, 549 F.2d at 891. In contrast, a factual challenge is a substantive defect that occurs when the court lacks actual subject-matter jurisdiction regardless of the sufficiency of the allegations in the complaint. 5A CHARLES ALAN WRIGHT & ARTHUR. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (2d ed. 1990). In that instance, the court may consider evidence outside the complaint. Mortensen, 549 F.2d at 891.

  Statement of Facts

  Plaintiffs alleged the following facts. On June 1, 2000, plaintiff-husband John Matsko had a meeting with Earl Miller ("Miller"), a representative of MSHA, at MSHA's offices in Johnstown, Pennsylvania. Am. Compl. ¶ 7. Miller borrowed defendant Kotor's chair for plaintiff-husband to sit in during the meeting. Am. Compl. ¶ 7. At some point during the meeting, defendant Kotor commented that plaintiff-husband was in his chair. Am. Compl. ¶ 7. Plaintiff-husband began to push himself up out of the chair, when defendant Kotor, without provocation, approached plaintiff-husband from behind, grabbed plaintiff-husband by the back of the neck, pushed him out of the chair, and slammed his neck and head forcefully down on a briefcase. Am. Compl. ¶ 7. Defendant Kotor's actions resulted in injuries to plaintiff-husband including a broken vertebra and a herniated disk in plaintiff-husband's neck. Am.Compl. ¶ 7.

  Pursuant to paragraph 13 of the amended complaint, plaintiff-wife Teresa Matsko seeks to recover damages against the government for expenses, loss of earnings, loss of love, comfort, and society, and loss of consortium all arising out of the injuries suffered by plaintiff-husband (collectively, the "loss of consortium claim"). Am. Compl. ¶ 13. Whether plaintiff-wife adequately pursued administrative remedies before commencing this claim is the subject of the motion before the court.

  Plaintiffs submitted a Standard Form 95 dated June 18, 2001 with the United States Department of Labor regarding plaintiff-husband's injury (the "2001 claim"). Dft. Br., Ex. A. The 2001 claim form listed both plaintiff-husband and plaintiff-wife in the box intended for the name and address of the claimant. Id. ("John Joseph Matsko, III & Teresa Matsko, his wife. . . .") (box 2). The 2001 claim form, however, was signed only by plaintiff-husband. Id. (box 13a). The 2001 claim form described the nature and extent of the injury forming the basis of the claim as follows:
Fracture of the C-7 vertebra of the neck, disc herniation at the C5-C6 level with neural encroachment, injury to the muscles, ligaments and other soft tissue of Mr. Matsko's neck and back, resulting nerve damage to Mr. Matsko's neck and back affecting Mr. Matsko's arms, legs, neck and head, severe headaches, pain and weakness of the arms, impotence and other injuries.
Id. (box 10). The 2001 claim form described the basis of the claim, without explicitly mentioning plaintiff-wife or the loss of consortium claim, as follows:
John Matsko, III, is the safety director at PBS Coals, Inc. On June 1, 2000, at about 2:30 p.m. John Matsko, III, while meeting with Earl Miller, a representative of the Federal Mine Safety and Health Administration at MSHA's offices in Richland Township, Cambria County, Pennsylvania, was injured by another MSHA inspector Rudy Kotor. Mr. Kotor, without provocation, approached Mr. Matsko from behind and grabbed him by the back of the neck and slammed his neck and head forcefully down onto a briefcase, thereby breaking a vertebra in Mr. Matsko's neck, herniating a disc in his neck, damaging the muscle, ligaments and other soft tissue in his neck and back and causing nerve damage to his neck and back with resultant injury to his neck and back that has even affected his arms and legs. As a result of the severe injuries to Mr. Matsko, he missed more than one week of his work and he has only worked since that time with physical limitations. It is expected that Mr. Matsko will suffer permanent limitations as the result of his injuries.
Id. (box 8, attached sheet).
  Nearly one year later, more than one month after plaintiffs commenced this lawsuit, plaintiffs submitted another Standard Form 95 dated May 29, 2002 with the United States Department of Labor regarding plaintiff-husband's injury (the "2002 claim"). Dft. Br., Ex. C. The 2002 claim form listed only plaintiff-wife in the box intended for the name and address of the claimant, id. ("Teresa Matsko. . . .") (box 2), and was signed only by plaintiff-wife. Id. (box 13a). The 2002 claim form described the nature and extent of the injury and the basis of the claim as follows:
Teresa Matsko's husband, John Matsko, III,. . . . [detailed description of the event giving rise to and the injury to plaintiff-husband]. . . . As the result of the injuries to John Matsko, III, Teresa Matsko, his wife, has suffered and will continue to suffer in the future a loss of consortium including the loss of support, services, love, companionship, affection, society, sexual ...

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