United States District Court, M.D. Pennsylvania
EDDIE WRIGHT, Plaintiff.
UNITED STATES OF AMERICA, Defendant.
MARTIN C. CARLSON, Magistrate Judge.
I. Statement of Facts and of the Case.
The pro se plaintiff is a federal prisoner who is housed at the United States Penitentiary-Canaan. In this action, the plaintiff is suing the United States, alleging that in June of 2011 the prison served inmates chicken fajitas. According to the plaintiff, the chicken was bad, and was tainted with salmonella bacteria. Consequently, the plaintiff contracted food poisoning, and suffered excruciating pain and symptoms which included headaches, diarrhea, abdominal pains, nausea, chills, vomiting, inability to eat and profuse sweating. Alleging negligence on the part of the prison in the preparation and service of this food, the plaintiff has brought this action seeking damages from the United States, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq.
The plaintiff initiated this action on January 30, 2013. (Doc. 1, Compl..) On April 4, 2013, the Court entered an order staying all deadlines and instructing the parties to participate in mediation. (Doc. 15.) The mediation deadline was thereafter extended three more times. (Docs. 24, 25, 26.) When mediation failed to resolve the plaintiff's claim, on January 23, 204, the Court lifted the stay and issued a case management order. (Doc. 27.) The Court subsequently amended the case management order on March 3, 2013. (Doc. 37.) On March 6, 2014, the defendant filed a motion to dismiss this complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Doc. 38.) We subsequently issued an order placing the parties on notice that we would consider the motion as a motion to dismiss and, in the alternative, a motion for summary judgment. (Doc. 40.)
In the motion, the United States argues that this Court lacks jurisdiction over the plaintiff's FTCA claim because the plaintiff initiated this lawsuit more than one year after the United States denied his administrative tort claim, and, therefore, outside of the applicable statute of limitations. The motion is fully briefed and is ripe for disposition.
A. The Parties's Burdens of Proof and Persuasion
1. Motion to Dismiss Rule 12(b)(1)
The defendant moved to dismiss this FTCA claim for lack of jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the grounds that the plaintiff filed this action outside of the statute of limitations, which under the Federal Tort Claims Act strips the Court of jurisdiction to hear the claim.
Rule 12(b)(1) permits the dismissal of an action for "lack of subject matter jurisdiction." A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. See Mortensen v. First Fed. Sav. and Loan Ass'n , 549 F.2d 884, 891 (3d Cir.1977). In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff. See id.; PBGC v. White , 998 F.2d 1192, 1196 (3d Cir.1993). In reviewing a factual attack, the court may consider evidence outside the pleadings. See Gotha v. United States , 115 F.3d 176, 178-79 (3d Cir.1997) (citing Mortensen , 549 F.2d at 891). Gould Electronics Inc. v. United States , 220 F.3d 169, 176 (3d Cir. 2000)(footnote omitted) holding modified on other grounds by Simon v. United States , 341 F.3d 193 (3d Cir. 2003).
Here, the defendant's motion presents a factual attack upon subject matter jurisdiction, arguing that this court lacks jurisdiction over this claim due to the plaintiff's failure to file his complaint within the statute of limitations. When presented with such a fact-bound jurisdictional challenge are cautioned that:
A factual challenge contests the existence of subject matter jurisdiction, apart from any pleadings. Id . In reviewing a factual challenge, the court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case, " even where disputed material facts exist. Mortensen , 549 F.2d at 891. In a factual challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists. Gould , 220 F.3d at 178; Mortensen , 549 F.2d at 891. If the defendant presents evidence contesting any allegations in the pleadings, the presumption of truthfulness does not attach to the plaintiff's allegations and the plaintiff may present facts by affidavit or deposition or in an evidentiary hearing. Gould , 220 F.3d at 177; Mortensen , 549 F.2d at 891, 893 n. 18. "[I]f there is a dispute of material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination." Gould , 220 F.3d at 177.
Moyer Packing Co. v. United States , 567 F.Supp.2d 737, 748 ...