Rosberg v. Jacobsen
Filing
13
MEMORANDUM AND ORDER - The clerk's office is directed to update the Docket Sheet to reflect that the United States of America is the sole Defendant in this matter. Rosberg's "Motion to Transfer Case Back to Cedar County" (Filin g No. 7 ) is denied. Defendant's Motion to Dismiss (Filing No. 9 ) is granted. Rosberg's Complaint is dismissed in its entirety without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAUL A. ROSBERG,
Plaintiff,
v.
JEFF JACOBSEN,
Defendant.
)
)
)
)
)
)
)
)
)
4:12CV3221
MEMORANDUM
AND ORDER
This matter is before the court on Defendant’s1 Notice of Removal and Motion
to Dismiss. (Filing Nos. 1 and 9.) Also pending is Plaintiff Paul Rosberg’s
(“Rosberg”) “Motion to Transfer Case Back to Cedar County.” (Filing No. 7.) For
the reasons explained below, the court finds that Defendant properly removed this
matter to this court, and also finds that this case must be dismissed because this court
does not have jurisdiction to hear the case.
I. BACKGROUND
Rosberg filed a complaint in the District Court of Cedar County, Nebraska, on
September 24, 2012, against Jeff Jacobsen (“Jacobsen”). (Filing No. 1-1 at CM/ECF
pp. 1-3.) Generally, Rosberg alleges that Jacobsen, a federal employee, made false
statements about Rosberg within a United States Department of Agriculture
(“USDA”) report. (Id.) Rosberg alleges that these false statements resulted in the
1
On October 31, 2012, the United States of America substituted itself as
Defendant for Jeff Jacobsen pursuant to the Federal Tort Claims Act. See 28 U.S.C.
§ 2679(b)(1) (providing that a suit against the United States shall be the exclusive
remedy for persons with claims from allegedly negligent or wrongful actions of
federal employees taken within the scope of their employment). In light of this
substitution, the court will direct the clerk’s office to update the Docket Sheet to
reflect that the United States of America is the sole defendant in this matter.
federal government suspending the assignment of inspectors to his meat processing
facility in Randolph, Nebraska. (Id. at CM/ECF pp. 1-4.)
Defendant removed the state-court action to this court on October 31, 2012.
(Filing No. 1.) Along with the Notice of Removal, Defendant filed a certification by
the United States Attorney that Jacobsen was acting within the scope of his
employment at the time of the incident out of which Rosberg’s claim arose. (Filing
No. 1-2.) Jacobsen stated in the Notice of Removal that removal of the state-court
action was required under 28 U.S.C. § 2679(d)(2), which states that a state-court
action “shall be removed” upon a scope-of-employment certification by the Attorney
General. (Filing No. 1 at CM/ECF p. 2.)
Rosberg filed a “Motion to Transfer Case Back to Cedar County” (Filing No.
7), on November 19, 2012. Thereafter, on December 6, 2012, Defendant filed a
Motion to Dismiss. (Filing No. 9.) Rosberg did not respond to Defendant’s Motion
to Dismiss, and the time in which to do so has now passed. In this Memorandum and
Order, the court will first take up Defendant’s “Motion to Transfer Case Back to
Cedar County” (Filing No. 7), and then address Defendant’s Motion to Dismiss
(Filing No. 9).
II. MOTION TO TRANSFER CASE TO STATE COURT
Rosberg has moved the court to transfer this matter back to the state district
court. (Filing No. 7.) In support of the Motion, Rosberg argues that Defendant’s
basis for removal does not apply because Jacobsen was not acting within the scope
of his employment when he made the false statements. (Id. at CM/ECF p. 1 (“[I]t is
not his job to make written false statements that he knows are false in an attempt to
destroy someone’s business . . .”).)
2
The Westfall Act, an amendment to the Federal Tort Claims Act, requires
removal of a civil action commenced in state court if the Attorney General certifies
that the defendant was acting within the scope of his employment. 28 U.S.C.
§ 2679(d)(2). The statute unequivocally states that the Attorney General’s
certification “shall conclusively establish scope of office or employment for purposes
of removal.” Id.; Osborn v. Haley, 549 U.S. 225, 241 (2007) (“Congress gave district
courts no authority to return cases to state courts on the ground that the Attorney
General’s certification was unwarranted.”).
Here, the United States Attorney for the District of Nebraska, exercising the
authority given to her by the United States Attorney General, certified that Jacobsen
was acting within the scope of his employment at the time of the incident out of
which Rosberg’s claim arose. (Filing No. 1-2.) This certification “renders [this
court] exclusively competent and categorically precludes a remand to the state court.”
Osborn, 549 U.S. at 243. Accordingly, Plaintiff’s “Motion to Transfer Case Back to
Cedar County” (Filing No. 7) will be denied.
III. MOTION TO DISMISS
Defendant moves to dismiss this action pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure because the court lacks jurisdiction over the subject matter
of the action. (Filing No. 9.) The court agrees with Defendant and, for the reasons
discussed below, it will dismiss this matter.
A.
Standard for Dismissal
The burden of establishing subject matter jurisdiction falls on the plaintiff.
Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006). A party challenging subject
matter jurisdiction under Rule 12(b)(1) may mount either a facial or factual attack to
the court’s jurisdiction. Id. at 729-31. On a facial attack, the court limits its
3
consideration to the allegations of the complaint. Id. at 729. On a factual attack, the
court may consider matters outside of the pleadings that relate to the existence of
subject matter jurisdiction without converting the motion to one for summary
judgment. Id. Here, Defendant has offered the declaration of Sheila Fant (Filing No.
10-1) in support of its Motion to Dismiss. Thus, it has raised a factual attack because
it has relied on matters outside the pleadings.
B.
Discussion
Defendant argues that this court lacks subject-matter jurisdiction to consider
this case because Rosberg did not submit an administrative tort claim to the USDA
concerning the incident out of which his claim arose. (Filing No. 11 at CM/ECF p.
8.) Rosberg did not respond to Defendant’s argument or, more generally, the Motion
to Dismiss.
The Federal Tort Claims Act at Title 28 U.S.C. § 2675 provides in part:
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 caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office
or employment, unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or registered mail.
The failure of an agency to make final disposition of a claim within six
months after it is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim for purposes of this
section. . . .
28 U.S.C. § 2675(a). Stated another way, the Federal Tort Claims Act bars claimants
from bringing suit in federal court until they have exhausted their administrative
remedies. McNeill v. United States, 508 U.S. 106, 110-12 (1993) (“The most natural
4
reading of [section 2675(a)] indicates that Congress intended to require complete
exhaustion of Executive remedies before invocation of the judicial process.”).
Here, Rosberg does not allege that he complied with the administrative
requirements of the Federal Tort Claims Act prior to filing this action. Moreover,
once the issue of the court’s subject-matter jurisdiction was raised by Defendant,
Rosberg made no attempt to establish that this court has subject-matter jurisdiction
over this action. See Jones, 470 F.3d at 1265 (“A plaintiff has the burden of
establishing subject matter jurisdiciton.”). In addition, Defendant submitted the
declaration of Sheila Fant, whose job responsibilities include coordinating the receipt
and consideration of administrative tort claims filed with the USDA pursuant to the
Federal Tort Claims Act. (Filing No. 10-1 at CM/ECF p. 1.) Sheila Fant declared
that she searched for any administrative tort claims filed by Rosberg, his wife, or on
behalf of his meat processing facility, and found none. (Id.) For these reasons, the
court finds that it lacks subject matter jurisdiction over this matter. Accordingly, the
court will dismiss this case without prejudice.
IT IS THEREFORE ORDERED that:
1.
The clerk’s office is directed to update the Docket Sheet to reflect that
the United States of America is the sole Defendant in this matter.
2.
Rosberg’s “Motion to Transfer Case Back to Cedar County” (Filing No.
7) is denied.
3.
Defendant’s Motion to Dismiss (Filing No. 9) is granted.
4.
Rosberg’s Complaint is dismissed in its entirety without prejudice.
5
5.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 29th day of April, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?