United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
before me is a Motion to Dismiss Plaintiff Heath
Goldstein's (“Goldstein”) Complaint (Doc. 1,
Ex. 1) filed by Defendants Zachery Berman et al.
(“Defendants”). (Doc. 4.) Because this Court does
not have subject matter jurisdiction over Plaintiff's
claims, Defendants' Motion to Dismiss will be granted.
relevant facts, as alleged in the Complaint or available in
the public record, are as follows. Goldstein has a license
issued by the Defendant Federal Aviation Administration
(“FAA”) as a private pilot “with a rating
of single engine land and instrument airplane.” (Doc.
1, Ex. 1 at ¶ 9.) Goldstein went to a Designated Pilot
Examiner (“DPE”), Mark George, who was certified
and qualified by the FAA. Id. at ¶ 10. Go
ldstein “successfully passed for an additional rating
of Instrument Airplane.” Id. In 2015, the FAA
“revoked DPE certifications and qualifications and
determined the exam [Goldstein] took was deemed
invalid.” Id. at ¶ 11. In 2015, the FAA
required Goldstein to “retest such exam of
instrument.” Id. at ¶ 12. As a result,
Goldstein has incurred additional out of pocket costs.
Id. at ¶ 14. Goldstein's Complaint seeks
five thousand dollars for “out of pocket costs and
future costs that will be incurred for training and
additional instruction, plus costs and any other relief as
just.” Id. at ¶ 15.
previously filed a Complaint in the Lackawanna County Court
of Common Pleas, which was removed to this Court by
Defendants and dismissed by the Honorable Judge Malachy E.
Mannion on November 3, 2017, for failure to prosecute under
Fed.R.Civ.P. 41. See Goldstein v. Berman, No.
17-1510 (M.D.Pa. Nov. 3, 2017). Goldstein filed a new
Complaint in the Lackawanna County Court of Common Pleas,
which Defendants properly removed to this Court on November
3, 2017. (Doc. 1.) On November 22, 2017, Defendants
filed a Motion to Dismiss the new Complaint under
Fed.R.Civ.P. 12(b)(1) and 12(b)(6): lack of subject matter
jurisdiction and failure to state a claim upon which relief
can be granted. (Doc. 4.) Goldstein filed his Brief in
Opposition to Defendants' Motion to Dismiss on January
29, 2018. (Doc. 8.) Defendants have not filed a Reply Brief
within the allotted time. This Motion is therefore now ripe
a motion to dismiss is based on lack of subject matter
jurisdiction pursuant to Rule 12(b)(1), as well as other Rule
12(b) defenses, the Court should consider the Rule 12(b)(1)
challenge first because, if it must dismiss the complaint for
lack of subject matter jurisdiction the accompanying defenses
become moot and need not be addressed.” Turner v.
United States, Civ. No. 13-494, 2014 WL 1345011, at *2
(M.D.Pa. Apr. 4, 2014)(citations omitted); see also
Tagayun v. Stolzenberg, 239 Fed.Appx. 708, 710 (3d Cir.
2007)(“An actual determination must be made whether
subject matter jurisdiction exists before a court may turn to
the merits of the case.”). When ruling on a 12(b)(1)
motion, “the district court must accept as true the
allegations contained in the plaintiff's complaint,
except to the extent federal jurisdiction is dependent on
certain facts.” Fed. Realty Inv. Trust v. Juniper
Props. Group, No. 99-3389, 2000 WL 45996, at *3 (E.D.Pa.
Jan. 21, 2000)(citing Haydo v. Amerikohl Mining,
Inc., 830 F.2d 494, 496 (3d Cir. 1987)).
may treat a Rule 12(b)(1) motion either as a facial or a
factual challenge to its subject matter jurisdiction.
Gould Electronics Inc. v. United States, 220 F.3d
169, 189 (3d Cir. 2000). When deciding a Rule 12(b)(1) facial
attack, the Court may only consider the allegations contained
in the complaint and exhibits attached to the complaint;
matters of public record such as court records, letter
decisions of government agencies and published reports of
administrative bodies; and “undisputably
authentic” documents which the plaintiff has identified
as a basis of his claim and which the defendant has attached
as exhibits to his motion to dismiss. See Pension Benefit
Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192,
1196-97 (3d Cir. 1993); Dykes v. Southeastern
Pennsylvania Transp. Auth., 68 F.3d 1564, 1567 (3d Cir.
1995)(noting that where “a complaint relies upon a
document,  the plaintiff obviously is on notice of the
contents of the document and the need for a chance to refute
evidence is greatly diminished”). If the defendant
submits and the court considers evidence that controverts the
plaintiff's allegations, the court must treat the motion
as a factual challenge. Gould, 220 F.3d at 178. In
such cases, “the trial court is free to weigh evidence
and satisfy itself as to the existence of its power to hear
the case.” Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). The court
is “not confined to the allegations in the
complaint.” Turicentro, S.A. v. American Airlines,
Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002),
overruled on other grounds by Animal Sci. Prods. v. China
Minmetals Corp., 654 F.3d 462 (3d Cir. 2011). No
presumption of truthfulness attaches to the plaintiff's
allegations, and the burden of proof is on the plaintiff to
show that the court possesses jurisdiction. Id. The
plaintiff must show this by a preponderance of the evidence.
See McCann v. Newman Irrevocable Trust, 458 F.3d
281, 286 (3d Cir. 2006).
Federal Tort Claims Act (“FTCA”) contains a
limited and conditional waiver of the federal
government's sovereign immunity, which provides consent
to suit in federal district court under certain conditions.
See United States v. Orleans, 425 U.S. 807, 813
(1976), abrogated on other grounds by United States v.
Olson, 546 U.S. 43 (2005); 28 U.S.C. § 1346(b).
Before filing a suit against the United States pursuant to
the FTCA, a plaintiff must present an administrative claim to
the responsible agency “and the claim shall have been
finally denied by the agency.” See 28 U.S.C.
§ 2675(a). “The final denial requirement is
‘jurisdictional and cannot be waived.'”
Lightfoot v. United States, 564 F.3d 625, 627 (3d
Cir. 2009)(quoting Bialowas v. United States, 443
F.2d 1047, 1049 (3d Cir. 1971)).
the extent of this Court's jurisdiction over this case is
dependent on whether Goldstein has exhausted his
administrative remedies. Defendants have attached two
affidavits to their Brief in Support of their Motion to
Dismiss, one from Zachary M. Berman of the FAA and one from
Elijah F. Jenkins of the Department of Justice. (Doc. 5, Ex.
1&2.) Both affiants swear that Goldstein has not
exhausted his administrative remedies by pursuing a claim
within either agency. Id. Since these affidavits are
not part of the complaint or the public record, and are not
“undisputably authentic” documents which the
plaintiff has identified as a basis of his claim,
Defendants' Motion to Dismiss is properly evaluated as a
factual, rather than facial, challenge to subject matter
jurisdiction in this case.
has not shown by a preponderance of the evidence that federal
subject matter jurisdiction exists over this action. He has
made no attempt to contradict the affidavits introduced by
Defendants, which suggest that Goldstein has not pursued his
claim through administrative avenues before filing suit
against Defendants. In addition, Goldstein makes no
allegation in his complaint that he received a final denial
of his claim from any administrative agency, or that he ever
filed an administrative claim at all. I therefore credit the
affidavits attached to Defendants' Motion to Dismiss and
conclude that there is no federal subject matter jurisdiction
over this action.
above stated reasons, Defendants' Motion to Dismiss
Goldstein's Complaint will be granted for ...