BOSESKI v. NORTH ARLINGTON MUNICIPALITY et al
OPINION. Signed by Judge William J. Martini on 10/21/14. (gh, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:13-02652 (WJM)
NORTH ARLINGTON MUNICIPALITY et
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Sherri Boseski brings this action pro se against North Arlington
Municipality, Bergen Regional Medical Center, and the Department of Defense.
This matter comes before the Court on Defendant Department of Defense’s motion
to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). There was no oral argument. FED. R. CIV. P. 78(b). For the
reasons set forth below, Defendant’s motion is GRANTED.
On April 25, 2013, Plaintiff filed a pro se complaint against the Department of
Defense (“the Federal Defendant”), the North Arlington Municipality, and the
Bergen Regional Medical Center. ECF No. 1. On December 16, 2013, The
Honorable Dennis M. Cavanaugh dismissed Plaintiff’s Complaint against North
Arlington Municipality and Bergen Regional Medical Center on the grounds that the
claims against those entities were barred by the applicable statute of limitations.
ECF No. 23. After Judge Cavanaugh retired, the case was transferred to this Court.
ECF No. 25.
The Court will limit its background discussion to allegations against the Federal
Defendant because it is the only remaining defendant in this case. First, Plaintiff
alleges that the Federal Defendant colluded with the Bergen County court system to
force her into the Army. Compl. at 24. She further alleges that the Federal
Defendant failed to investigate her allegations that she was sexually assaulted by
military personnel. Id. at 9, 10, 19. Moreover, Plaintiff claims that the Federal
Defendant obstructed justice by colluding with North Arlington to destroy evidence
related to her accusations of sexual assault and tampering with other evidence related
to this action. Id. at 5, 24. Seeking $10 million in damages, her complaint alleges a
“continuous tort” and specifically asserts the following causes of action: (1)
conspiracy to commit fraud; (2) restriction of trade – 15 U.S.C. § 1; (3) breach of
contract by the military; (4) assault; (5) legal malpractice; (6) false arrest and
imprisonment; (7) defamation; (8) libel; and (10) claims under 42 U.S.C. §§ 1981,
1983, and 1985. Id. at 36. The Federal Defendant now moves to dismiss the
Complaint for lack of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). ECF No. 33.1
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a
complaint for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1). There
are two types of challenges to subject-matter jurisdiction: (1) facial attacks, which
challenge the allegations of the complaint on their face; and (2) factual attacks,
which challenge the existence of subject-matter jurisdiction, quite apart from any
pleadings. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.
1977). In reviewing a facial attack, the court must consider the allegations of the
complaint in the light most favorable to the plaintiff. Gould Electronics Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000); PBGC v. White, 998 F.2d 1192,
1196 (3d Cir. 1993). In reviewing a factual attack, the court may consider evidence
outside the pleadings, and no presumptive truthfulness attaches to the plaintiff’s
allegations. Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000) (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997)). Here,
the attack on Plaintiff’s tort and breach of contract claims are factual in nature,
whereas the other claims are subject to a facial challenge.
Notwithstanding Plaintiff’s assertions to the contrary, the Federal Defendant’s
motion to dismiss was timely. See Clerk’s Text Order dated July 18, 2014; ECF
The Federal Defendant argues that the Court lacks subject-matter jurisdiction in
this case because of the doctrine of sovereign immunity. The doctrine of sovereign
immunity provides that “the United States may not be sued without its consent and
that the existence of consent is a prerequisite to jurisdiction.” United States v.
Mitchell, 463 U.S. 206, 212 (1983). Sovereign immunity of the United States also
extends to its branches and agencies, including the Department of Defense. See e.g.
Franchise Tax Bd. v. United States Postal Service, 467 U.S. 512, 517-18 (1976);
Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). The Federal Tort Claims Act
(“the FTCA”) operates as a limited waiver of sovereign immunity. See e.g., WhiteSquire v. U.S. Postal Service, 592 F.3d 453, 456 (3d Cir. 2010). If certain
requirements are met, it allows common law tort actions against the United States.
Dalehite v. United States, 346 U.S. 15, 28 (1953). One such requirement is that
before filing suit, a plaintiff must submit a written administrative claim with the
relevant federal agency within two years after the claim accrues. 28 U.S.C. §§
2401(b), 2675(a); White-Squire, 592 F.3d at 458. This requirement cannot be
waived; a plaintiff’s failure to comply mandates dismissal of the claim for lack of
subject-matter jurisdiction. See e.g., Medina v. City of Philadelphia, 219 Fed.Appx.
169, 171-73 (3d Cir. 2007). Plaintiff bears the burden to prove compliance with the
FTCA’s administrative claim requirements. Livera v. First Nat’l State Bank, 879
F.2d 1186, 1195 (3d Cir. 1989).
Plaintiff has not met her burden here. While Plaintiff vaguely alleges that she
reported her claim to military authorities, she does not dispute that she did not file
an administrative claim in writing with the Federal Defendant pursuant to the FTCA.
Moreover, the Federal Defendant has submitted a sworn declaration indicating that
it never received an administrative claim from Plaintiff. McConahy Decl. at ¶ 2.
Consequently, this Court lacks subject-matter jurisdiction under the FTCA to hear
Plaintiff’s tort claims against the Federal Defendant. Because Plaintiff failed to
comply with FTCA requirements, she is “forever barred” from bringing her tort
claims and the dismissal is with prejudice. See 28 U.S.C. § 2401(b).
Plaintiff’s breach of contract claim must be similarly dismissed. While it is
difficult to discern the substance of Plaintiff’s claim, it appears that as a former
military service member suing for monetary relief, Plaintiff seeks compensation
under the enlistment contract she entered into with the U.S. Army. Under the “Little
Tucker Act,” federal district courts have jurisdiction over certain non-tort claims
(including breach of contract) against the United States that do not exceed $10,000.
See 28 U.S.C. § 1491. Former members of the military services have used the Little
Tucker Act as a basis of jurisdiction when suing the United States for monetary
relief. See e.g. Wyatt v. U.S., 2 F.3d 398 (Fed Cir. 1993). However, even assuming
that her breach of contract claim is for less than $10,000, Plaintiff cannot maintain
it against the Federal Defendant because “a service member's entitlement to pay and
other benefits is set by statute and regulation and not by contract.” See e.g., Liber v.
United States, 116 Fed.Cl. 1, *4 (Fed. Cl. 2014) (granting 12(b)(1) dismissal of
plaintiff’s breach of contract claim against the Army). Moreover, the Court cannot
detect any statute or regulation that would entitle Plaintiff to compensation related
to her military service.2 See id.
Finally, the doctrine of sovereign immunity also bars Plaintiff’s other claims,
even after accepting all allegations in the Complaint as true. See U.S. Postal Service
v. Flamingo Indus. Ltd., 540 U.S. 736, 745 (2004) (Shearman Act does not operate
as a waiver of sovereign immunity); Quern v. Jordan, 440 U.S. 332, 341-45 (1979)
(same for 42 U.S.C. §§ 1981-1988). The Court therefore lacks subject-matter
jurisdiction and will dismiss the Complaint with prejudice.
For the foregoing reasons, the Federal Defendant’s motion to dismiss is
GRANTED. Plaintiff’s Complaint against the Federal Defendant is DISMISSED
WITH PREJUDICE. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: October 21, 2014
The Court has endeavored to liberally construe the Complaint in light of
Plaintiff’s pro se status. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
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