The opinion of the court was delivered by: Judge Munley
Before the court is Defendant United States Department of Agriculture, Natural Resources Conservation Service's ("the Agency") motion to dismiss the plaintiff's complaint (Doc. 2). Having been fully briefed and argued, the matter is ripe disposition.
This case originated in the Court of Common Pleas of Lackawanna County, Pennsylvania. The original complaint named only the Borough of Jermyn ("the Borough") as a defendant. (Brief in opposition to defendant's motion to dismiss (Doc. 4) (hereinafter "brief in opposition") at 2). According to the plaintiff, the Borough alleged that the United States Department of Agriculture, Natural Resources Conservation Service was an indispensable party to the suit. (Id.). The Court of Common Pleas agreed, and allegedly ordered plaintiff to file an amended complaint.*fn1
Plaintiff's amended complaint, filed in the Court of Common Pleas on May 4, 2007, alleges that a storm water drainage system owned and controlled by the Borough and adjacent to plaintiff's property caused "serious and progressive structural damage" to that property. (Amended Complaint (Doc. 1-3) at § 4). Sometime between 1980 and 1981, the Defendant Agency constructed a 42-inch pipe through a portion of plaintiff's residential property. (Id. at § 5). Though the damage to plaintiff's home did not occur until after the Borough built its storm water drainage system in 2001, plaintiff's complaint alleges that she could not determine whether that damage was the result of the actions of one or both of the defendants. (Id. at § 6). Nevertheless, plaintiff avers that the Borough and the Agency, by "artificially collecting and discharging . . . water in a concentrated fashion on and about the lands of the Plaintiff" amounted to "a series of continuing trespasses and a continuing nuisance and injury to the Plaintiff." (Id. at §§ 7-8). Plaintiff seeks a permanent injunction preventing further discharge of storm water onto her property, an order directing defendants to restore plaintiff's property at their expense and damages and attorney's fees. (Id. at § 10).
After plaintiff filed her amended complaint, the Agency filed a notice of removal with this court. (See Doc. 1). On June 14, 2007, the Agency filed a motion to dismiss the amended complaint (Doc. 2), with which the Borough concurred. Both sides briefed and argued the issue, bringing the case to its present posture.
Because the United States is a defendant in this tort action, we have jurisdiction pursuant to 28 U.S.C. § 1346(b)(1), which establishes that "the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." We have supplemental jurisdiction to hear plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
When a defendant "move[s] to dismiss a complaint under Rule 12(b)(1) for failure to allege subject matter jurisdiction we treat the allegations of the complaint as true and afford the plaintiff the favorable inferences to be drawn from" it. N.E. Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001). Two types of challenges to a court's subject matter jurisdiction exist, those that "attack the complaint on its face" and those "that attack the existence of subject mater jurisdiction in fact, quite apart from any pleadings." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A "factual" attack contends that "the court lacks subject matter jurisdiction, no matter what the complaint alleges." N.E. Hub Partners v. CNG Transmission Corp., 239 F.3d 333, 341 n.7 (3d Cir. 2001). In a facial attack, "the court must consider the allegations of the complaint as true." Mortensen, 549 F.2d at 891. When the attack is a factual one, the issue "the trial court's jurisdiction--its very power to hear the case--[and] there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to existence of its power to hear the case." Id. In such cases, the plaintiff's claims are not presumed true and the plaintiff bears "the burden of proof that jurisdiction does in fact exist." Id., see also Nesbitt v. Gears Unlimtied, Inc., 347 F.3d 72, 77 (3d Cir. 2003) (holding that "[i]f an aspect of a claim concerns jurisdiction, and when jurisdiction turns on whether a particular fact is true as here (as opposed to whether the complaint sufficiently alleges jurisdiction on its face), a court may inquire into the jurisdictional facts without viewing the evidence in a light favorable to either party.").
Defendant argues that we should dismiss the case on two grounds. We will address each in turn.
i. The Agency Cannot be Sued Eo Nomine
The Agency argues that the principles of sovereign immunity prevent the United States government from being sued without explicit consent of federal statute. In addition, the Agency insists, a subdivision of the United States cannot be sued in its own name (eo nomine) without Congressional approval. Since the United States has not made the Agency liable to tort suits separately from the United States, defendant contends that the case against it must be dismissed. Plaintiff does not respond directly to this argument, and we will treat this portion of the motion as unopposed. See L.R. 7.6 (establishing "any party opposing any motion shall file a responsive brief . . . [and] [a]ny respondent who fails to comply with this rule shall be deemed not to oppose such ...