United States District Court, W.D. Pennsylvania
PARADISE BAXTER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION ON POSTAL SERVICE'S
MOTION TO DISMISS [ECF NO. 10]
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE.
respectfully recommended that Postal Service's Motion to
Dismiss (ECF No. 10) be GRANTED and
Plaintiffs Complaint be dismissed with prejudice.
Bruce Murray ("Murray"), a pro se litigant
currently incarcerated at the State Correctional Institution
Forest ("SCI Forest"), began this action by filing
a complaint against the United States Postal Service
("Postal Service") in the Court of Common Pleas of
Forrest County on January 11, 2019. ECF No. 1-1. The Postal
Service then removed the case to this Court, under 28 U.S.C.
§ 1442(a)(1). ECF No. 1. Pending before the Court is the
Postal Service's Motion to Dismiss pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure. ECF No. 10.
Murray has filed a response in opposition this motion. ECF
No. 16. The motion is ready for disposition.
complaint alleges that he sought to mail a package containing
a watch and a money order in the amount of $56.00 and that
the contents of his package were lost because the package was
delivered to the wrong address. ECF No. 1-1 ¶¶ 11,
17. As a consequence, Murray alleges one count of negligence
and one count of theft against the Postal Service and seeks
$5, 000.00 in damages as compensation. Id.
Standard of Review
Postal Service moves to dismiss pursuant to Fed.R.Civ.P.
12(b)(1), challenging this Court's subject matter
jurisdiction. ECF No. 10 ¶ 1. In deciding a Rule
12(b)(1) motion, the Third Circuit has recognized a
"crucial distinction . . . between 12(b)(1) motions that
attack the complaint on its face, and 12(b)(1) motions that
attack the existence of subject matter jurisdiction, quite
apart from any pleadings." Mortensen v. First
Federal Sav. And Loan Ass'n, 549 F.2d 884, 891 (3d
Cir. 1977). The first option, a facial attack, "is an
argument that considers a claim on its face and asserts that
it is insufficient to invoke the subject matter jurisdiction
of the court because . . . some  jurisdictional defect is
present." Constitutional Party of Pa. v.
Aichele, 757 F.3d 347, 358 (3d Cir. 2014). In other
words, a "facial attack 'contests the sufficiency of
the pleadings.'" Id. (quoting In re
Schering Plough Corp. Intron Temodor Consumer Class
Action, 678 F.3d 235, 243 (3d Cir. 2012)). For that
reason, "[i]n reviewing a facial attack, 'the court
must consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff.'" Id. (see also
Gould Electronics. Inc. v. United States, 220 F.3d 169,
176 (3d Cir. 2000)). "Thus, a facial attack calls for a
district court to apply the same standard of review it would
use in considering a motion to dismiss under Rule 12(b)(6),
i.e., construing the alleged facts in favor of the
nonmoving party." Id.
the Postal Service's motion is properly understood as a
facial attack because it argues that the allegations in
Murray's complaint challenge actions the Postal Service
undertook which are protected by sovereign immunity and over
which this Court has no jurisdiction. ECF No. 11 ¶ 6.
Consequently, the Court will "accept as true all
[factual] allegations in the complaint and reasonable
inferences that can be drawn from them after construing them
in the light most favorable to the nonmovant" as it
determines whether Murray has plead the factual allegations
necessary to establish the Court's subject matter
jurisdiction. Hartig Drug Inc. v. Senju Pharm. Co.
Ltd., 836 F.3d 261, 268 (3d Cir. 2016).
United States, "as sovereign, is immune from suit save
as it consents to be sued." United States v.
Sherwood,312 U.S. 584, 586 (1941). Furthermore,
"[t]he terms of its consent to be sued in any court
define the court's jurisdiction to entertain the
suit." Id. In White-Squire v. United States
Postal Service,592 F.3d 453 (3d Cir. 2010), the Third
Circuit described this doctrine of sovereign immunity as
requiring the United States' "consent to be sued
[to] be unequivocally expressed," and noted that the
conditions on which the Government does consent to be sued
"must be strictly observed and [that] exceptions thereto
are not to be implied." Id. at 456, 458. Since
the "Postal Service is an independent establishment of
the executive branch of the government of the United States .
.. [it] enjoys federal sovereign immunity absent a
waiver." See Dolan v. U.S. Postal Service, 546
U.S. 481, 484-485 (2006); (see also F.D.I.C. v.
Meyer,510 U.S. 471, 475 (1994)) ("Absent a waiver,