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Patricia Amberg-Blyskal v. Transportation Security Administration

September 26, 2011

PATRICIA AMBERG-BLYSKAL
v.
TRANSPORTATION SECURITY ADMINISTRATION, ET AL.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Plaintiff Patricia Amberg-Blyskal, proceeding pro se, alleges that an employee of defendant the Transportation Security Administration stole a ring, watch, and bracelet from a bag she checked with US Airways for a flight from Philadelphia, Pennsylvania to Houston, Texas. Am. Compl. ¶¶ 2, 3, 12. She asserts that when she checked her bag the items were inside in a makeup case inside of a plastic toiletry bag. Id. at ¶ 12. She contends that "[a]t all times between dropping off her bag and picking up her bag, upon information and belief, the bag was in possession of either US Airways or defendant." Id. at ¶ 15. Upon her arrival in Houston plaintiff found a "TSA Notice of Baggage Inspection" in the bag she had checked. Id. at ¶ 18. Plaintiff became aware that the items were missing at some point after her arrival. Id. at ¶ 2.

On June 1, 2011, I dismissed plaintiff's complaint, finding that plaintiff failed to state a claim under the Federal Tort Claims Act because her allegations were insufficient to demonstrate that the alleged actions of the culpable TSA employee fell within the scope of his or her employment. Plaintiff filed an amended complaint on July 20, 2011. Her amended complaint recasts her original claims as causes of action for negligence and bailment. Now before me is defendant's motion to dismiss plaintiff's first amended complaint and plaintiff's response thereto. For the reasons that follow, I will grant defendant's motion.*fn1

STANDARD OF REVIEW

Defendant moves to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), which authorizes dismissal of a complaint for lack of subject matter jurisdiction. A motion under Rule 12(b)(1) may be treated as either a facial attack on the complaint or a factual challenge to the court's subject matter jurisdiction. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Because defendant's motion presents a facial attack on plaintiff's complaint, I will consider only the allegations of the amended complaint. See id.

Plaintiff bears the burden of persuasion when subject matter jurisdiction is challenged. Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). "[D]ismissal for lack of jurisdiction is not appropriate merely because the legal theory alleged is probably false, but only because the right claimed is 'so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987), quoting Oneida Indian Nation v. Cnty. of Oneida, 414 U.S. 661, 666 (1974).

To the extent that defendant appears to assert that plaintiff's claim for bailment fails to state a claim upon which relief can be granted, the motion for dismissal is more properly considered under Rule 12(b)(6) than under Rule 12(b)(1). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted).

Because plaintiff "has filed [her] complaint pro se, [I] must liberally construe [her] pleadings, and . . . apply the applicable law, irrespective of whether [she] has mentioned it by name." Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003), see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaints to "less stringent standards than formal pleadings drafted by lawyers"). "Courts are to construe complaints so as to do substantial justice, keeping in mind that pro se complaints in particular should be construed liberally." Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citation omitted).

DISCUSSION

I. Negligence

"The Federal Tort Claims Act waives sovereign immunity against persons suing the federal government for the commission of various torts." Simon v. United States, 341 F.3d 193, 199 (3d Cir. 2003). "[T]he United States is only liable [under the FTCA] for negligent or wrongful acts of government employees acting within their scope of employment." Matsko v. United States, 372 F.3d 556, 559 (3d Cir. 2004) (emphasis in original); see also 28 U.S.C. § 2670(b)(1). I dismissed plaintiff's original complaint, finding that plaintiff's allegations were insufficient to demonstrate that the TSA employee who allegedly stole her belongings was working within the scope of his employment at the time of the alleged theft. Amberg-Blyskal v. Transp. Sec. Admin., No. 10-06818, 2011 WL 2149633, at *3 (E.D. Pa. June 1, 2011). Plaintiff's amended complaint now recasts her dismissed claim as a claim for negligent supervision by defendant.

Plaintiff contends that defendant owed her a "duty to screen her bags in a manner that would reasonable [sic] secure her from injury." Am. compl. ¶ 25. She further alleges that defendant "knew or should have known, especially in light of the abundance of theft surrounding the defendant and its employees, that failure to exercise reasonable care would have caused the loss of the belongings of travelers." Id. at ¶ 26. Plaintiff avers that defendant "failed to introduce reasonable policies to secure baggage from theft . . . includ[ing] use of video recording, requiring employees to note an ID number on Notice of Baggage Inspection forms, requiring bags to be inspected by two employees at once, search of employees leaving baggage areas, proper background checks, etc." Id. at ¶ 21.

As alleged in plaintiff's amended complaint, the negligence of defendants' employees is rooted in their positions as employees of the TSA. "[N]egligent supervision claims . . . rooted in supervisor-supervisee relationships at work [that] relate closely to the supervisee's employment status" are not permissible under the Federal Tort Claims Act. CNA v. United States, 535 F.3d 132, 149 (3d Cir. 2008). "[A] respondeat superior claim cannot be brought against the government simply by a plaintiff's use of the words 'negligent hiring, training, or supervision.'" Pottle v. United States, 918 F. Supp. 843, 848 (D.N.J. 1996). To survive defendant's motion to dismiss, plaintiff "must allege truly independent negligence." Id. She does not do so here. "[W]here there is no independent duty owed to the plaintiff, as in cases 'stem[ming] from negligent hiring, training or supervision'" a negligence claim against the Government "is nothing more than a 'subterfuge to mask an otherwise ...


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