CLARK v. WELLS FARGO BANK et al

Filing 8

OPINION AND ORDER granting 2 Motion to Dismiss for Lack of Jurisdiction. Ordered that Plaintiff's complaint is dismissed with prejudice as to the Federal Defendants, United States of America and The Comptroller of Currency. Signed by Judge Jose L. Linares on 4/15/13. (gmd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TONI CLARK,
Civil Action No. 13-1293 (JLL)
Plaintiff,

v.

OPINION AND ORDER

WELLS FARGO BANK, UNITED STATES
OF AMERICA, & THE COMPTROLLER OF
CURRENCY,

Defendants.
LINARES, District Judge.
This matter comes before the Court by way of Defendants United States of America and
the Office of the Comptroller of Currency (collectively the “Federal Defendants”)’s unopposed
motion to dismiss Plaintiff’s complaint for lack of subject matter jurisdiction pursuant to Fed. R.
Civ. P. 12(b)(1). The Court has considered Defendant’s unopposed motion and decides this
matter without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons set forth below,
Defendants’ motion is granted, and Plaintiff’s complaint is dismissed with prejudice as to the
Federal Defendants.
I.

BACKGROUND

On or about November 17, 2012, prose Plaintiff Toni Clark (“Plaintiff’) filed a
complaint in New Jersey Superior Court, Essex County, asserting various claims sounding in
tort. Plaintiff seeks $90 million in compensation for “extreme suffering and pain,” “mental
anguish,” and a “sense of fear and feeling of distrust,” caused by the conduct of the Federal
1

Defendants, among other defendants. (See CM/ECF No. 1 at 9.) Specifically, Plaintiff claims
that the Office of the Comptroller of Currency was “reckless” because it failed to “examine
Wells Fargo Bank to ensure a safe and sound financial condition and to ensure compliance with
applicable bank laws, rules, fraud and abuse.” (Id. at 8.) Plaintiff also alleges that the United
States of America was negligent because Attorney General Eric Holder and U.S. Attorney Paul
Fishman engaged in “political corruption” and “obstruction ofjustice” by not investigating
Plaintiffs complaints. (Id. at 8.) Plaintiff never filed an administrative tort claim with either the
Comptroller of Currency or the Department of Justice. (See generally Cole Dccl.; Pisarick
Deci.)
The Federal Defendants removed this action to this Court on March 4, 2013. The instant
motion followed on March 13, 2013.
II.

LEGAL STANDARD

Federal courts are courts of limited jurisdiction, and thus may adjudicate cases and
controversies only as permitted under Article III of the Constitution. U.S. Const. art. III,

§ 2; see

also Philadelphia Federation of Teachers v. Ridge, 150 F.3d 319, 322-23 (3d Cir. 1998). “A

Rule 1 2(b)( 1) motion may be treated as either a facial or factual challenge to the court’s subject
matter jurisdiction.” Gould Elec., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
“Facial attacks.

.

.

contest the sufficiency of the pleadings, and the trial court must accept the

complaint’s allegations as true.” Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d
Cir. 2006). By contrast, on a factual attack to federal subject matter jurisdiction, courts may
consider evidence outside the pleadings. See Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3
(3d Cir. 2006) (citing Mortensen v. First Fed. Say. & Loan Ass ‘n, 549 F.2d 884, 891 (3d Cir.
1977)). Additonally, “no presumptive truthfulness attaches to plaintiffs allegations, and the
2

existence of disputed material facts will not preclude the trial court from evaluating for itself the
merits ofjurisdictional claims.” Id.
Federal courts must dismiss a complaint if a plaintiff cannot establish the existence of
subject matter jurisdiction. Id.; see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). In determining
whether a pro se complaint asserts a valid basis for subject matter jurisdiction, the Court must be
mindful to construe the complaint liberally in favor of Plaintiff. See, e.g., Erickson v. Pardus,
551 U.S. 89, 93-94 (2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
III.

DISCUSSION

The Federal Defendants argue that this Court lacks subject matter jurisdiction because (1)
Plaintiff failed to file an administrative claim as required under the Federal Tort Claims Act
(“FTCA”), and (2) Plaintiffs claims are barred by the discretionary function exception to the
FTCA. The Court will address each of these arguments in turn.
A.

Plaintiffs Failure to File an Administrative Claim

It is well settled that “[w]ithout a waiver of sovereign immunity, a court is without
jurisdiction over claims against federal agencies or officials in their official capacities.” See,
e.g., Treasurer ofN.J v. United States Dep ‘t of the Treasury, 684 F.3d 382, 395-96 (3d Cir.

2012). Such a waiver “must be express and unambiguous to confer subject matter jurisdiction on
a court.” Id. at 396. It “must [also] be strictly construed in favor of the sovereign and the terms
of the waiver define the extent of the court’s jurisdiction.” Id. (internal citations and quotation
marks omitted).
The Federal Tort Claims Act (“FTCA”) “operates as a limited waiver of the United
States’ sovereign immunity.” White-Squire v. United States Postal Serv., 592 F.3d 453, 456 (3d

3

Cir. 2010). The FTCA “allows plaintiffs to bring claims based on the action of Government
employees when private persons engaging in analogous behavior would be liable under state
law.”’ CNA v. United States, 535 F.3d 132, 138 (3d Cir. 2008). “Although the purpose of the
Federal Tort Claims Act is essentially remedial, the procedures established pursuant to the Act
nonetheless have been strictly construed inasmuch as the Act constitutes a waiver of sovereign
immunity.” See, e.g., Pennsylvania by Sheppard v. Nat ‘lAss ‘n ofFlood Insurers, 520 F.2d 11,

19-20 (3d Cir. 1975).
“The FTCA has mandatory administrative claim procedures with which a plaintiff must
comply prior to filing suit; if they are not followed, sovereign immunity is not waived, and the
court lacks subject matter jurisdiction over plaintiffs claim.” See, e.g., Jean-Baptiste v.
Lespinasse, No. 07-6169, 2008 U.S. Dist. LEXIS 30124, at *7 (D.N.J. Apr. 10, 2008) (citing 28
U.S.C.

§ 2401(b), 2675(a)).
In 28 U.S.C.

§ 2401(b), Congress specifically provided that

[a] tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal Agency
within two years after such claim accrues or unless action is begun
within six months after the date of mailing, by certified or
registered mail, of notice of final denial of the claim by the agency
to which it was presented.

Although the FTCA allows for suits against the United States for damages resulting from the negligent or wrongful
acts of federal employees acting within the scope of their employment, federal employees enjoy absolute immunity
from suit arising from the commission of such acts. See Schrob v. Catterson, 967 F.2d 929, 934 (3d Cir. 1992)
(observing that the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C.
§* 28
U.S.C. 1346(b), 2671-80, makes federal employees absolutely immune for tortious acts or omissions performed
within the scope of employment). Accordingly, when a federal employee is sued for acts or omissions within the
scope of employment, the United States is substituted as a defendant in place of the federal employees. See 28
U.S.C. § 2679(d)(2). Because Plaintiff initially named U.S. Attorney General Eric Holder and U.S. Attorney Paul
Fishman as defendants, the United States has been substituted as a defendant in their place.

4

In enacting 28 U.S.C.

§ 2675(a), Congress reiterated the requirement that a waiver of

sovereign immunity under the FTCA is conditioned upon a plaintiff’s submission of an
administrative claim to the federal agency in question. That statutory provision states:
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...
28 U.S.C.

§ 2675(a).

“[TJhe requirement that the appropriate federal agency act on a claim before suit can be
brought is jurisdictional and cannot be waived.” Roma v. United States, 344 F.3d 352, 362 (3d
Cir. 2003). Here, Plaintiff failed to submit any administrative claim prior to bringing suit, as
required under the FTCA. (See Pisarick Deci. ¶J 2-3; Cole Deci.

¶J 2-3.) Consequently, this

Court lacks jurisdiction over her claims and they must be dismissed.
B.

Plaintiff’s Claims are Barred by the FTCA’s Discretionary Function Exception

The discretionary function exception to the FTCA, codified at 28 U.S.C.

§ 2680(a),

provides an exception from liability for:
[ajny claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or
based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the
discretion involved be abused.
“[T]he purpose of the [discretionary function] exception is to prevent judicial second
guessing of legislative and administrative decisions grounded in social, economic, and political
policy through the medium of an action in tort.” See United States v. Gaubert, 499 U.S. 315, 323
5

(1991) (internal citations and quotation marks omitted). In detennining whether the
discretionary function exception applies, “a court must [first] identify the conduct at issue.”
£R.P. v. United States, 676 F.3d 329, 332 (3d Cir. 2012). Courts “must then follow a two-step
inquiry to determine whether the discretionary function exception immunizes the government
from a suit arising out of such conduct.” Id. at 333. “First, a court must determine whether the
act giving rise to the alleged injury and thus the suit involve[d] an element ofjudgment or
choice.” Id. (internal quotation marks and citations omitted). If a specific course of action is
prescribed by statute, regulation or policy, “the exception does not apply because ‘the employee
has no rightful option but to adhere to the directive.” Id. (quoting Berkovitz v. United States,
486 U.S. 531, 536 (1988)). If a specific course of action is not prescribed, courts must proceed
to the second step, which requires determining “whether the challenged action or inaction is of
the kind that the discretionary function exception was designed to shield.” Id. (citations and

quotation marks omitted).
In this case, Plaintiff claims that the Federal Defendants were “reckless” and
“negligen[t]” in investigating alleged wrongdoing on the part of Wells Fargo Bank. (See
CM/ECF No. I at 8.) The Third Circuit has consistently held that investigatory activities are
protected by the discretionary function exception to the FTCA. See Pooler v. United States, 787
F.2d 868, 87 1-72 (3d Cir. 1986) (claims based on law enforcement and investigatory activities
are covered by the discretionary function exception to the FTCA); Bernitsky v. United States,
620 F.2d 948, 955 (3d Cir. 1980) (“Decision making as to investigation and enforcement.

.

.

are

discretionary judgments”); see also Woods v. United States, No. 07-593, 2007 U.S. Dist. LEXIS
80931, at * 10 (D.N.J. Oct. 31, 2007) (“How a government agent should conduct an investigation
is the paradigm decision that is protected by the discretionary function exception.”).
6

Accordingly, this Court holds that the Federal Defendants’ acts and omissions upon
which Plaintiffs complaint is premised fall within the discretionary function exception to the
FTCA. It is, therefore, apparent to the Court that granting Plaintiff leave to amend would be
futile, as this Court lacks jurisdiction to entertain Plaintiffs tortious claims against the Federal
Defendants.
For these reasons,
IT IS on this

J day of April, 2013

ORDERED that the Federal Defendants’ motion to dismiss (CMIECF No. 2) is granted;

and it is further
ORDERED that Plaintiffs complaint is dismissed with prejudice as to the Federal

Defendants.
IT IS SO ORDERED.

Jose LLinares
/ Uuitd States District Judge

7