BLUMBERG et al v. ROLLE et al
Filing
36
OPINION. Signed by Judge Noel L. Hillman on 4/9/2019. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LORRAINE BLUMBERG,
Administratrix of the Estate
of Richard Blumberg, and
individually, and in her own
right,
Plaintiff,
1:18-cv-09043-NLH-AMD
OPINION
v.
WILLIAM J. ROLLE, JR., FRM
JR. TRUCKING INC., UNITED
STATES POSTAL SERVICE,
Defendants.
APPEARANCES:
KENNETH F. FULGINITI
SARAH FILIPPI DOOLEY
DUFFY PARTNERS
1650 MARKET STREET
55TH FLOOR
PHILADELPHIA, PA 19103
On behalf of Plaintiff
MARC R. JONES
CIPRIANI & WERNER PC
155 GATHIER DRIVE
SUITE B
MOUNT LAUREL, NJ 08054
On behalf of Defendant William J. Rolle, Jr. and FRM Jr.
Trucking, Inc.
JOHN TUDOR STINSON, JR.
OFFICE OF THE U.S. ATTORNEY
DISTRICT OF NEW JERSEY
402 EAST STATE STREET
ROOM 430
TRENTON, NJ 08608
On behalf of Defendant United States Postal Service
HILLMAN, District Judge
This matter concerns claims by Plaintiff arising out of a
collision involving a car occupied by Plaintiff and her husband
and a tractor trailer transporting mail for the United States
Postal Service.
USPS has moved to dismiss Plaintiff’s claims
for lack of subject matter jurisdiction.
For the reasons
expressed below, USPS’s motion will be denied.
BACKGROUND
According to Plaintiff’s complaint, on July 6, 2017,
Plaintiff, Lorraine Blumberg, and her husband, Richard Blumberg,
were driving through an intersection in Marlton, New Jersey when
Defendant, William Rolle, Jr., who was driving a tractor trailer
containing USPS mail, ran a red light and struck the Blumbergs’
car.
Both Plaintiff and her husband sustained serious injuries.
Richard Blumberg died from his injuries two months later.
Plaintiff, on her behalf and on behalf of her husband’s
estate, has brought a four-count complaint for negligence,
negligent infliction of emotional distress, wrongful death, and
a survival action, against Rolle, the trucking company he worked
for, Defendant FRM Jr. Trucking, Inc., and USPS.
Rolle and FRM
have filed cross-claims for contribution and indemnification
against USPS. 1
1
On March 28, 2019, Plaintiff filed a motion to deposit Rolle
and FRM’s insurance policy limits in the amount of $750,000 in
2
Because an agency of the United States is a Defendant, 2
Plaintiff brought her claims in this Court pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401,
2671-80. 3
Plaintiff claims that Rolle “acted as an agent,
workman, employee and/or servant” of USPS at the time of the
accident, and that USPS had a duty to properly hire and
supervise “employees and drivers” involved in this matter.
the court registry pursuant to L. Civ. R. 67.1. (Docket No.
35.) The return date for the motion is May 6, 2019.
2
In an action brought pursuant to the FTCA against the USPS and
the United States, the United States is the proper defendant.
Continental Ins. Co. of N.J. v. U.S., 335 F. Supp. 2d 532, 535
(D.N.J. 2004). In its motion to dismiss, USPS notes that the
United States is the proper defendant. (Docket No. 20-1 at 4.)
It therefore appears to the Court that the United States should
be substituted for USPS. See, e.g., Sconiers v. United States
Postal Service, 2017 WL 4790388, at *2 (D.N.J. 2017) (explaining
that “a lawsuit for personal injury arising from a federal
employee's tortious conduct, the United States is substituted as
the only proper Federal Defendant in place of both the USPS and
its employee, citing 28 U.S.C §§ 2679(d)(2), 1346(b)(1); 39
U.S.C. § 409(c) (stating FTCA applies to tort actions arising
from Postal Service activities)); Drive New Jersey Ins. Co. v.
Nebolsky, 2014 WL 7409906, at *1 (D.N.J. 2014) (“The United
States Postal Service (‘USPS’), an agency of the United States,
was named as a defendant. In its moving brief, the United States
requested to be substituted for the USPS.”).
3
The Federal Tort Claims Act vests exclusive jurisdiction in
district courts for claims against the United States “‘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, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act occurred.’” Norman v.
U.S., 111 F.3d 356, 357 (3d Cir. 1997) (quoting 28 U.S.C. §
1346(b)).
3
Plaintiff seeks to hold USPS liable for the alleged negligence
of Rolle and FRM (respondeat superior), and for its own
liability for its alleged negligent hiring, training, and
supervision of Rolle and FRM, and its alleged failure to timely
discharge Rolle and FRM.
USPS has moved to dismiss Plaintiff’s complaint for lack of
subject matter jurisdiction pursuant to Federal Civil Procedure
Rule 12(b)(1).
USPS argues that FRM is an independent
contractor engaged by the USPS to transport mail pursuant to a
detailed, written contract.
Under the terms of such contract,
USPS contends that FRM bore all responsibility for its trucks,
drivers, and the performance of FRM’s duties under the contract.
USPS further contends that FRM agreed to bear all liability for
harm to persons and property, and to indemnify USPS from any and
all tort liability, in connection with FRM’s performance under
the contract.
USPS therefore argues that under the FTCA and its limited
waiver of sovereign immunity, a plaintiff is barred from
bringing an action against the United States to recover for
damages for the allegedly negligent conduct of an independent
contractor or the contractor’s employee.
USPS further argues
that the FTCA does not waive sovereign immunity for claims of
negligent hiring, training, supervision, and timely discharge
because it is a discretionary function for which it is entitled
4
to sovereign immunity.
Plaintiff argues that Rolle and FRM are not independent
contractors but rather employees of USPS due to USPS’s control
over their actions.
Plaintiff further contends that the
discretionary function exception does not apply to her claims
against USPS.
Plaintiff also argues that USPS’s motion is
premature because there has been no discovery as to USPS’s
control and supervision of Rolle and FRM, and the contract
between Rolle and FRM, standing alone, does not negate
Plaintiff’s claims. 4
DISCUSSION
A.
Subject matter jurisdiction
Plaintiff’s asserted basis for subject matter jurisdiction
over this matter is the Federal Tort Claims Act, 28 U.S.C. §
2671 et seq., and 28 U.S.C. § 1367 for Plaintiff’s state law
claims. 5
B.
Standard for Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(1)
“A Rule 12(b)(1) motion may be treated as either a facial
or factual challenge to the court's subject matter
4
Rolle and FRM have summarily joined in Plaintiff’s opposition
to USPS’s motion to dismiss. (Docket No. 31.)
5
Absent jurisdiction under the FTCA, there is no other basis for
jurisdiction over Plaintiff’s claims against Rolle and FRM
because they are all citizens of New Jersey.
5
jurisdiction.”
Gould Electronics Inc. v. U.S., 220 F.3d 169,
176 (3d Cir. 2000).
There is “a crucial distinction, often
overlooked, 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 in fact, quite apart from any
pleadings.”
Mortensen v. First Federal Sav. and Loan Ass'n, 549
F.2d 884, 891 (3d Cir. 1977).
On a facial attack, “the court must consider the
allegations of the complaint as true,” and the court employs the
Rule 12(b)(6) standard for assessment.
Id.; see also
Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358
(3d Cir. 2014) (explaining “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”).
“The factual attack, however, differs greatly,” because (1)
“no presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating for itself the
merits of jurisdictional claims,” and (2) “the plaintiff will
have the burden of proof that jurisdiction does in fact exist.”
Mortensen, 549 F.2d at 891.
The distinction between Rules 12(b)(1) and 12(b)(6) is
important because the 12(b)(6) standard affords significantly
6
more protections to a nonmovant.
Hartig Drug Company Inc. v.
Senju Pharmaceutical Co. Ltd., 836 F.3d 261, 268 (3d Cir. 2016).
A Rule 12(b)(1) “factual challenge strips the plaintiff of the
protections and factual deference provided under 12(b)(6)
review.”
Id. (citation omitted).
Moreover, the Third Circuit Court of Appeals has made it
clear that a factual attack may only occur after the filing of
an answer.
Long v. Southeastern Pennsylvania Transportation
Authority, 903 F.3d 312, 320 (3d Cir. 2018) (explaining that
because the defendant “filed the attack before it filed any
answer to the Complaint or otherwise presented competing facts,”
its motion was “by definition, a facial attack”); S.D. by A.D.
v. Haddon Heights Board of Education, 722 F. App’x 119, 124 (3d
Cir. 2018) (finding that the district erred when considering the
defendant’s motion to dismiss as a factual attack because it had
“neither answered Appellants’ Amended Complaint nor offered any
factual averments in support of its motion to dismiss”);
Mortensen, 549 F.2d at 891 (providing that a Rule 12(b)(1)
factual attack “may occur at any stage of the proceedings, from
the time the answer has been served until after the trial has
been completed” because a “factual jurisdictional proceeding
cannot occur until plaintiff's allegations have been
controverted”); id. at 895 n. 22 (further explaining, “As a
general rule if there is a jurisdictional defect as well as an
7
insufficiency on the merits, the correct procedure is to treat a
dismissal as having been on the jurisdictional ground for the
obvious reason that if the court lacks jurisdiction to hear the
case then a fortiori it lacks jurisdiction to rule on the
merits.”).
C.
Analysis
The procedural posture of USPS’s motion and the content of
Plaintiff’s allegations require the denial of USPS’s motion at
this time.
As a primary matter, USPS’s motion is procedurally improper
because it constitutes a factual attack lodged before it has
filed its answer.
USPS has moved to dismiss Plaintiff’s claims,
arguing that because Rolle and FRM were independent contractors,
and not employees of the United States, USPS cannot be held
liable for their alleged negligence. 6
6
The United States has
USPS also argues that Plaintiff’s negligent hiring and
supervision claim fails because of the discretionary function
exception. The FTCA provides a limited waiver of sovereign
immunity in certain tort actions against the United States for
money damages, but that waiver does not extend to various types
of government conduct enumerated in 28 U.S.C. § 2680, including
“the exercise or performance or the failure to exercise or
perform a discretionary function or duty . . . whether or not
the discretion involved be abused.” Bryan v. United States, 913
F.3d 356, 364 (3d Cir. 2019). “Discretionary acts and omissions
‘involv[e] an element of judgment or choice.’ Conduct is nondiscretionary only if a ‘federal statute, regulation, or policy
specifically prescribes a course of action for an employee to
follow’ and the government ‘employee has no rightful option but
to adhere to the directive.’” Id. (quoting United States v.
Gaubert, 499 U.S. 315, 322 (1991) (other citation omitted)). As
8
waived sovereign immunity for some negligence suits for injuries
caused by Government employees, 28 U.S.C. § 1346(b), but
government employees do not include “any contractor with the
United States,” 28 U.S.C. § 2671.
“independent-contractor exemption.”
This is called the
E.D. v. United States, ---
F. App’x ---, 2019 WL 994296, at *2 (3d Cir. 2019) (citing
Norman v. United States, 111 F.3d 356, 357 (3d Cir. 1997)).
“‘A
critical element’” in determining whether the independentcontractor exception applies is “‘the power of the Federal
Government to control the detailed physical performance of the
contractor.’”
Id. (quoting United States v. Orleans, 425 U.S.
807, 814 (1976)) (other citation omitted).
“In other words,
‘the question here is . . . whether [the] day-to-day operations
are supervised by the Federal Government.”
Id. (quoting
Orleans, 425 U.S. at 815).
Rather than relying solely upon the allegations in
Plaintiff’s complaint, which, if it had, would classify USPS’s
motion as a facial attack, USPS points to multiple
Transportation & Contract Delivery Services agreements
(“Transportation Agreements”) entered into between FRM and USPS
to support its position that Rolle and FRM are independent
discussed below, the Court cannot consider this argument at this
stage of the case.
9
contractors for whom it holds no liability. 7
These agreements
were not referenced in or attached to Plaintiff’s complaint.
Therefore, the only way the Transportation Agreements can be
considered at this stage is if the Court construes, under the
traditional Rule 12(b)(6) standard, Plaintiff’s claims to be
based on the Transportation Agreements.
See Pension Benefit
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993) (explaining in assessing a Rule 12(b)(6) motion,
a court may consider “an undisputedly authentic document that a
defendant attaches as an exhibit to a motion to dismiss if the
7
USPS also points to other documents not referenced in
Plaintiff’s complaint, including a declaration of the manager of
local distribution transportation and a contracting officer for
USPS, who relates that FRM and its drivers were paid via 1099
instead of a W-2 and did not receive any benefits, and he does
not consider FRM or Rolle to be an employee of USPS or under
USPS control. For the same reasons as the Transportation
Agreements, the Court cannot consider this evidence at this
time. Indeed, the declaration is self-serving because of
Plaintiff’s inability to challenge it, and this further
demonstrates that the resolution of the independent contractor
exception cannot take place in this procedural posture. Cf.
Paladino v. Newsome, 885 F.3d 203, 209 (3d Cir. 2018) (“[S]elfserving affidavits pointing to specific facts can create a
genuine issue of material fact sufficient to survive summary
judgment.”); Arrington v. Colortyme, Inc., 972 F. Supp. 2d 733,
742 (W.D. Pa. 2013) (“[T]he Court finds that this quantum of
evidence - a short self-serving affidavit with no supporting
documentation - cannot itself sustain a factual attack on the
Court's subject-matter jurisdiction.”) (citing Washington v.
Hovensa LLC, 652 F.3d 340, 346–47 (3d Cir. 2011); De Cavalcante
v. C.I.R., 620 F.2d 23, 26–27 (3d Cir. 1980) (when charged with
making evidentiary determinations, court may find that selfserving affidavits absent evidentiary support are insufficiently
probative)).
10
plaintiff’s claims are based on the document”); Hartig Drug
Company, 836 F.3d at 268 (quoting Mayer v. Belichick, 605 F.3d
223, 230 (3d Cir. 2010) (“In deciding a Rule 12(b)(6) motion, a
court . . . consider[s] only the complaint, exhibits attached to
the complaint, matters of public record, as well as undisputedly
authentic documents if the complainant's claims are based upon
these documents.”).
However, Plaintiff’s claims are not based on the
Transportation Agreements.
Even though the Transportation
Agreements set forth the parameters of the relationship between
Rolle, FRM, and USPS, and it is pursuant to these agreements
that Rolle was hauling mail for the USPS on the day of the
accident, Plaintiff’s claims cannot be construed to be based on
a contractual arrangement she is not a party to.
It would be
one thing if Plaintiff alleged in her complaint that Rolle and
FRM breached their obligations to USPS under their
Transportation Agreements, but that is not her claim.
Plaintiff
claims that Rolle and FRM were employees of USPS, and USPS had
control over their actions, which resulted in the accident and
her damages.
The Court must accept those allegations as true at
this initial pleading stage, and the Court cannot delve into the
interpretation of a contract between the defendants in order to
determine whether Plaintiff’s claims are factually correct.
Even if, however, the Court construed Plaintiff’s complaint
11
to be based on the contract between the trucking company and
USPS, and the Court could therefore consider it as a facial
attack under the Rule 12(b)(6) standard, the Transportation
Agreements may not be the entire picture in this case.
It is
true that the Transportation Agreements standing alone suggest
that Rolle and FRM could be classified as independent
contractors.
For example, as provided in USPS’s motion:
To be eligible to enter the Transportation Agreement,
suppliers like FRM cannot be employees of the USPS;
immediate family members of USPS employees; or business
organizations “substantially owned or controlled by Postal
Service Employees or their immediate families.” Provision
4-2 (p. 9 of 36). Suppliers are responsible for obtaining
permits and complying with all applicable laws in
connection with performance of the agreement. Clause B-30
(p. 19 of 36). Suppliers are responsible for supervising
all operations under the Transportation Agreement,
including the conduct of any subcontractors. Clause B-64
(p. 19 of 36). Suppliers are responsible for maintenance
and repair of their vehicles. Statement of Work §
B(4)(a)(1) (Page B-14). Similarly, suppliers must maintain
and inspect their own vehicles as well as establish and
maintain sufficient liability insurance at their own cost.
Statement of Work §§ B(6), B(7) (Pages B-16 to B-17).
Finally, suppliers are responsible for all damage to
persons or property arising from performance under the
Transportation Agreement. Clause B-30 (p. 19 of 36).
Suppliers also agree to indemnify the USPS for all damage
to persons or property arising from performance under the
Transportation Agreement. Clause B-39 (p. 19 of 36).
(Docket No. 20-1 at 8.)
Plaintiff, however, points to other facts that could
suggest otherwise regarding USPS’s control over Rolle and FRM.
Plaintiff relates:
In the present case, the requirements and duties of the
12
"contracting officer" are set forth in the Highway Route
Contract ("HRC"), accompanying attachments and the
Transportation and Contract Delivery Service Terms and
Condition. See Highway Route Contract, accompanying
attachments and the Transportation and Contract Delivery
Service Terms and Condition. The "contracting officer" is
defined as "the person executing this contract on behalf of
the Postal Service". Id. at Part 3 - Clauses, Section
Bl(a). . . . The Postal Service must spot the tractors and
trailers used on the route by the supplier. See Section
B.2(b) of the HRC. All equipment is to be inspected at a
time and location indicated by the Postal Service. See
Section B.2(d) of the HRC. All equipment must, at all
times, be maintained in a condition that reflects favorably
on the Postal Service and is acceptable to the Postal
Service. See Section B.2(d) of the HRC. The Postal Service
directs the supplier when to load and unload the mail. See
Section B.3(a) of the HRC. The supplier shall deny access
to U.S. Mail as directed by the Postal Service. See
Section B.3(h) of the HRC.
The Postal Service has the authority to cancel the
contract. See Section E(8) of the Transportation Contract.
The Postal Service may inspect the books of any supplier at
any time. See Section B-65(b) of Transportation Contract.
A supplier is considered to be in "default" of the contract
if it fails to follow the instructions of the Postal
Service. See Section B-69(c) of the Transportation
Contract. The supplier cannot hire anyone to act under the
contract that is contrary to the instructions of the Postal
Service. See Section B- 69(k) of the Transportation
Contract. The Postal Service is able to terminate the
contract if it is in "the best interest of the Postal
Service". Section B-69(p) of the Transportation Contract.
The Postal Service has the authority to extend the
contract. See Clause 2-19. The Postal Service may
terminate any and all of the supplier's contracts for
default based on a proposed safety rating or determination
of a rating of "unsatisfactory" of the supplier (as
described in 49 CPR § 385.11) by the Federal Motor Carrier
Safety Administration. See Page 36 of 36 of the
Transportation Contract. The supplier must obtain approval
from Postal Service before subcontracting any work awarded
under this contract. Id.
(Docket No. 29 at 16-18.)
13
Moreover, Plaintiff argues that it was while Rolle was
hauling U.S. Mail that he caused the accident with the
Blumbergs, and it is understood that Rolle had to be approved by
USPS before he was able to haul U.S. Mail, USPS instructed when
and where the loads were to be picked up, and where the loads
had to be delivered and to whom.
(Id. at 18.)
The foregoing demonstrates why USPS’s subject matter
jurisdiction challenge – under either the facial or factual
standard – is not proper at this time.
It could be, as other
courts have determined when considering similar agreements, that
Rolle and USPS were indeed independent contractors for which
USPS has no liability. 8
But it is too early in the action to
8
As cited by USPS, courts in various districts have reached the
conclusion that similar agreements between trucking companies
and USPS do not cause the truck driver and driver to be
employees of USPS. Courts have also determined that the
decision to enter into such agreements with a trucking company
are discretionary functions for which sovereign immunity has not
been waived. Plaintiff has cited to several cases which
rejected the independent contractor exception defense. However,
many of these decisions were reached at the summary judgment
stage, or at least after some limited discovery had been taken.
See, e.g., Jones v. U.S., 2013 WL 2477288, at *3 (S.D. Ind.
2013) (determining that the truck driver hauling USPS mail that
killed another driver was an independent contractor, but
construing USPS’s motion as one for summary judgment because
USPS submitted materials outside the pleadings and both parties
addressed the summary judgment standard in their briefing);
Estate of Anderson-Coughlin v. United States, 2017 WL 6624020,
at *2 (D. Conn. 2017) (determining that the truck driver hauling
USPS mail that killed another driver was an independent
contractor, but making that determination after a hearing on the
motion and allowing plaintiff to conduct limited jurisdictional
discovery); Bryan v. United States, 913 F.3d 356, 358 (3d Cir.
14
determine definitively that USPS had no hand in the operations
of the Defendant trucking company and the conduct of its driver
in this case. 9
The Third Circuit has instructed that “where jurisdiction
is intertwined with the merits of an FTCA claim, . . . a
district court must take care not to reach the merits of a case
when deciding a Rule 12(b)(1) motion.”
E.D., 2019 WL 994296, at
*3 (quoting CNA v. U.S., 535 F.3d 132, 144 (3d Cir. 2008)
(citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 178–79
(3d Cir. 2000)).
The Court finds that guidance applicable here.
Consequently, the Court will deny USPS’s motion without
prejudice, and because the status of Rolle and FRM relative to
the USPS is intertwined with the circumstances of the accident,
the Court directs that the case shall proceed through the usual
discovery process. 10
2019) (affirming district court’s grant of summary judgment to
the U.S. because it was shielded from liability under the FTCA’s
discretionary function exception); E.D. v. United States, 2019
WL 994296, at *3 (3d Cir. 2019) (finding that the district erred
in determining the discretionary function exception at the
motion to dismiss stage). Whether the independent contractor
and discretionary function exceptions apply must therefore be
determined at a later stage in the case.
9
The Court also cannot determine at this time whether the
discretionary function exception applies to USPS.
10
While keeping in mind the Court’s reasoning for denying USPS’s
motion to dismiss, USPS may nonetheless raise the issue of
subject matter jurisdiction at any appropriate time during the
discovery process, and the Court will then be permitted to fully
15
An appropriate Order will be entered.
Date April 9, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
consider evidence outside of the pleadings presented by all
parties. See Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (“A
litigant generally may raise a court's lack of subject-matter
jurisdiction at any time in the same civil action, even
initially at the highest appellate instance.”); Group Against
Smog and Pollution, Inc. v. Shenango Inc., 810 F.3d 116, 122 (3d
Cir. 2016) (citations omitted) (“[A]n objection to subject
matter jurisdiction may be raised at any time, a court may raise
jurisdictional issues sua sponte, and a court may consider
evidence beyond the pleadings such as testimony and depositions
when considering a jurisdictional challenge.”).
16
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