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Huberty v. U.S. Ambassador to Costa Rica

October 22, 2007

DONALD M. HUBERTY, PLAINTIFFS,
v.
U.S. AMBASSADOR TO COSTA RICA AND U.S. SECRETARY OF STATE, DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is Defendants' motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 3.) Defendants' motion will be granted on all counts. First, a claim pursuant to the Federal Tort Claims Act lacks subject matter jurisdiction, as such a claim may only be brought against the United States. Second, a claim pursuant to Bivens v. Six Unknown Named Ages of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) fails, as a Bivens claim may not be made based upon respondeat superior liability. Finally, a claim pursuant to the Pennsylvania Constitution fails, as no remedy for monetary damages exists for such a violation.

BACKGROUND

The facts as alleged in Plaintiff's Complaint are as follows.

The Plaintiff is Donald M. Huberty, a citizen of Coxville, Pennsylvania. (Compl. ¶ 1, Doc. 1.) The Defendants are the United States Ambassador to Costa Rica ("Ambassador to Costa Rica") and the United States Secretary of State ("Secretary of State"). (Id. ¶¶ 2-3.) On November 30, 2005, Plaintiff visited the embassy in San Jose, Costa Rica. (Id. ¶ 5.) While at the embassy, he was denied the use of a reference book. (Id. ¶ 7.) Plaintiff was ordered to leave them embassy, but remained seated. (Id.) The embassy security director then attacked the Plaintiff. (Id. ¶ 8.) Other security guards and U.S. Marines aided and abetted in the attack. (Id. ¶ 9.)

Plaintiff filed his Complaint on August 8, 2007. (Doc. 1.) On August 10, 2007 Defendants filed the present Motion to Dismiss. (Doc. 3.) Local Rule 7.6 requires that opposition to a motion be filed within fifteen (15) days of service of the movant's brief, or the motion is deemed to be unopposed. However, Plaintiff did file a responsive brief on September 18, 2007. (Doc. 5.) With cognizance of Plaintiff's pro se status, the Court will not consider the motion unopposed, and will look to the merits of the case. This motion is fully briefed and ripe for disposition.

LEGAL STANDARD

I. Motion to Dismiss Pursuant to Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action where the court lacks jurisdiction over the subject matter of that action. FED. R. CIV. P. 12(b)(1).

Because lack of ripeness impedes justiciability and thus the subject matter jurisdiction of the district court, ripeness claims should be raised in a Rule 12(b)(1) motion to dismiss rather than in a summary judgment motion. Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290 (3d Cir. 1993). A defendant may challenge the existence of subject matter jurisdiction in two fashions. See Mortensen v. First Fed. Sav. And Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks the complaint as deficient on its face, the Court must assume that "the allegations contained in the complaint are true." Id. In deciding a Rule 12(b)(1) facial attack, the court may only consider the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and "undisputably authentic" documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss. Hunter v. United States, 2000 WL 1880257, at *3 (M.D. Pa. Dec. 15, 2000). See generally Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196-97 (3d Cir. 1993).

However, when the motion to dismiss attacks the existence of subject matter jurisdiction in fact, no presumptive truthfulness attaches to the allegation included in the plaintiff's complaint. Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen, 549 F.2d at 891). Thus, the Court may weigh all of the available evidence to satisfy itself that subject matter jurisdiction indeed exists. Id. It is important to note also that the existence of disputed material facts will not preclude the Court from evaluating the jurisdictional allegations set forth in the complaint. Gould Elecs., Inc. V. United States, 220 F.3d 169, 176 (3d Cir. 2000).

In the present matter, the portion of Defendants' motion related to subject matter jurisdiction will be treated as a facial attack. Accordingly, this Court will consider the allegations contained in the complaint and all attachments thereto.

II. Motion to Dismiss Pursuant to Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all of the facts alleged in the complaint, Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1960, 167 L.Ed.2d 929 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). As a result of the Twombly holding, Plaintiff must now nudge its claims "across the line from conceivable to plausible" to avoid dismissal thereof. Id. The Supreme Court noted just two weeks later in Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam), that Twombly is not inconsistent with the language of Federal Rule of Civil Procedure 8(a)(2), which requires only "a short and plain statement of the claim showing that the ...


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