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Michael Canning v. United States of America

October 25, 2012

MICHAEL CANNING
v.
UNITED STATES OF AMERICA, ET AL.



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court is Defendant United States of America's Motion to Dismiss for Lack of Jurisdiction. (ECF No. 32.) For the following reasons, the Motion will be granted.

I. BACKGROUND

Plaintiff Michael Canning brings this action against Defendants United States of America, United States Postal Service ("USPS"), US Systems Plus Inc, ("US Systems"), and Cintas Corporation ("Cintas"), for injuries allegedly suffered when he slipped and fell at a United States Post Office in Philadelphia, Pennsylvania. (Am. Compl. Ex. A, ECF No. 18.) Plaintiff alleges that the accident took place on July 9, 2009. (Am. Compl. ¶ 9.)

On May 7, 2010, Plaintiff filed the mandatory claim form, Standard Form 95 ("SF-95") with the USPS. (Am. Compl. ¶ 7 & Ex. A ("SF-95"); see also Gov't's Br. Ex. 3, ECF No. 32.) On his SF-95, Plaintiff alleged he slipped and fell at a USPS facility located at 8232 Frankford Avenue, and that he sustained injuries to his neck, back, right hip, right knee, and right upper leg. (SF-95 at §§ 8, 10.)*fn1 Plaintiff alleged damages in the amount of $1,000,000. (Id. at § 12b.)

On November 10, 2010, the United States denied Plaintiff's claim after finding no evidence of an accident at the 8232 Frankford Avenue facility. (Am. Compl. ¶ 8; see Gov't's Br. Ex. 4.)

On February 1, 2011, Plaintiff filed a Complaint alleging a single negligence claim against Defendants United States, USPS Headquarters, and USPS Holmesburg Postal Store under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA"). (Compl., ECF No. 1.) The Complaint alleged that Plaintiff sustained an injury at the post office located at 7303 Frankford Avenue. This is a different postal facility than the one listed on Plaintiff's SF-95. (Id. at ¶ 8.)*fn2 On May 6, 2011, the United States filed an Answer to the Complaint. (Gov't's Ans., ECF No. 8.) Believing that the reference to 7303 Frankford Avenue must be a clerical error, the United States answered the Complaint as though the accident occurred at 8232 Frankford Avenue. (Id.; see also Gov't's Br. 3.) On January 31, 2012, Plaintiff filed an Amended Complaint. (Am. Compl.) The Amended Complaint alleges a negligence claim and adds two additional Defendants: US Systems and Cintas. (Id.)*fn3 Plaintiff again alleges that the accident occurred at the 7303 Frankford Avenue facility, and incorrectly refers to this facility as the Holmesburg post office. (Id. at ¶ 9.) On February 24, 2012, the United States filed an Answer to the Amended Complaint. (Gov't's Ans. to Am. Compl., ECF No. 21.) The United States asserts that it operates a post office located at 8232 Frankford Avenue, known as the "Holmesburg Station Finance Unit, where, according to Plaintiff's SF-95, the subject accident allegedly occurred." (Id. at ¶ 3.)

On March 29, 2012, the United States filed the instant Motion to Dismiss the Amended Complaint. (Gov't's Mot., ECF No. 32; see also Gov't's Br.)*fn4 The United States argues that the Court lacks jurisdiction because Plaintiff failed to exhaust his administrative remedies under the FTCA. On April 4, 2012, Plaintiff filed a Response in opposition to the Motion. (Pl.'s Resp., ECF No. 34.) On April 5, 2012, the United States filed a Reply. (Def.'s Reply, ECF No. 35.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) requires that a court grant a motion to dismiss if the court lacks subject matter jurisdiction over the case. Fed. R. Civ. P. 12(b)(1). Challenges to subject matter jurisdiction under Rule 12(b)(1) may be either facial or factual. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). If a defendant brings a facial attack, which addresses a deficiency in the pleadings, the court confines itself to the pleadings and views the allegations in the light most favorable to the plaintiff. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). A Rule 12(b)(1) motion that brings a factual attack challenges the factual underpinnings of the court's jurisdiction. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) ("[A] factual attack concerns 'the actual failure of [a plaintiff's] claims to comport [factually] with the jurisdictional prerequisites.'" (quoting Pa. Shipbuilding Co., 473 F.3d at 514)). If a defendant presents a factual attack on the court's jurisdiction, there is "no presumption of truthfulness [that] attaches to the pleadings," and the court is free to review evidence outside of the pleadings. Pa. Shipbuilding Co., 473 F.3d at 514.

The United States brings a factual attack on subject matter jurisdiction. It contends that Plaintiff has failed to satisfy the jurisdictional prerequisites of the FTCA. Consequently, "the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case." Carpet Grp. Int'l v. Oriental Rug Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000).

III. DISCUSSION

The United States seeks dismissal of Plaintiff's Amended Complaint for lack of jurisdiction pursuant to the FTCA. Section 2675(a) of the FTCA states that:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have ...


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