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Brunwasser v. United States

March 17, 2008


The opinion of the court was delivered by: Judge Nora Barry Fischer


Plaintiff Allen N. Brunwasser ("Plaintiff") brought a cause of action against the United States of America*fn1 regarding the disposition of $1,782.00 in interest. Specifically, Plaintiff, the owner of numerous U.S. Treasury bills, alleges that the United States failed to send him a reinvestment notice regarding one of his Treasury bills, which, he asserts, caused a delay in his Treasury bill reinvestment, hence depriving him of one-month's interest on the bill--$1,782.00.


Plaintiff originally commenced the instant action in the Court of Common Pleas of Allegheny County, Pennsylvania, Case No. GD-07-3811. The United States subsequently removed the case pursuant to 28 U.S.C. §§ 1442 and 1446.

On July 13, 2007, Defendant filed Defendant's Motion to Dismiss Plaintiff's Complaint or, in the alternative, for Summary Judgment (Docket No. 12) ("Defendant's Motion"). On November 6, 2007, Plaintiff filed "Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment is [sic] violates LR 5.1F and LR 56.1B1,2" (Docket No. 27). After a lengthy request for extension of time granted by the Court, on November 16, 2007, Plaintiff filed Plaintiff's Answer to Defendant's Motion for Summary Judgment (Docket No. 25) as well as Plaintiff's Response to Defendant's F.R.C.P. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction (Docket No. 26). On December 12, 2007, the Defendant filed Defendant's Reply Brief in Support of Motion to Dismiss. (Docket No. 34). On December 17, 2007, the Plaintiff filed a Motion to Amend by Adding 28 U.S.C. 1346(a)(2) as a Jurisdictional Authority (Docket No. 35, at 3-5). On January 11, 2008, the United States of America filed Defendant's Response in Opposition to Plaintiff's Motion for Leave to Amend by Adding 28 U.S.C. § 1346(a)(2) as a Jurisdictional Authority (Docket No. 38). On January 22, 2008, Plaintiff filed Plaintiff's Answer to Defendant's January 11, 2008 Response (Docket No. 40).

In his complaint, Plaintiff asserts jurisdiction under 28 U.S.C. § 1352. However, in reply to the Defendant's motion to dismiss, Plaintiff asserts additional (and/or alternative) bases for jurisdiction, including The Little Tucker Act, 28 U.S.C. § 1346(a), and The Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA"). In its responsive filings, the United States addresses the Plaintiff's alternative jurisdictional claims. Therefore, in the interests of judicial economy and efficiency, the Court will review each of these purported bases of jurisdiction.


"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Moreover, when a movant invokes multiple bases for a motion to dismiss, the court should consider the Rule 12(b)(1) challenge first because all other defenses will become moot if the court must dismiss the complaint for lack of subject matter jurisdiction. Hoyoung Song v. Klapakas, Case No. 06-05589, 2007 U.S. Dist. LEXIS 27203, at *2 (E.D. Pa. April 12, 2007) (citing In re Corestates Trust Fee Litig., 837 F. Supp. 104, 105 (E.D. Pa. 1993)). Accordingly, the Court will first consider Defendant's challenge to subject matter jurisdiction pursuant to Rule 12(b)(1) under the three proffered theories of jurisdiction.

Dismissal is proper under Rule 12(b)(1) only when "the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or ... is wholly insubstantial and frivolous." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991), cert. denied, 501 U.S. 1222 (1991). In reviewing a motion to dismiss pursuant to Rule 12(b)(1), the court must distinguish between facial attacks and factual attacks. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). When a defendant attacks a complaint on its face, it "[asserts] that considering the allegations of the complaint as true, and drawing all reasonable inferences in favor of [Plaintiff], the allegations of the complaint are insufficient to establish a federal cause of action." Mullen v. Thompson, 155 F.Supp.2d 448, 451 (W.D. Pa. 2001). When a defendant launches a factual attack on subject matter jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortenson v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir.1977). With respect to the present matter, Defendant asserts a factual argument regarding subject matter jurisdiction. (Defendant's Motion, at 2).

When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of persuasion. Kehr Packages, 926 F.2d at 1409; Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). Furthermore, while a court's review of a motion to dismiss is ordinarily limited to the contents of the complaint, including any attached exhibits, a court may consider some evidence beyond a complaint on a motion to dismiss "including public records ..., documents essential to plaintiff's claim which are attached to defendant's motion, and items appearing in the record of the case." Core Const. & Remediation, Inc. v. Village of Spring Valley, NY, Case No. 06-1346, 2007 U.S. Dist. LEXIS 73069, at *2 (E.D. Pa. Sept. 27, 2007) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1380 n.l & 2 (3d Cir. 1995)) (internal citation omitted); see also United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).

In addressing the instant motion, the Court is mindful of the above standards.


Essentially, Plaintiff proffers three bases of jurisdiction: 28 U.S.C. § 1352, 28 U.S.C. § 1346(b), and 28 U.S.C. § 1346(a)(2). ...

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