GONZALEZ v. UNITED STATES DEPARTMENT OF TRANSPORTATION et al

Filing 13

OPINION. Signed by Judge Stanley R. Chesler on 7/17/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION

VICTOR GONZALEZ, JR.,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
TRANSPORTATION, JOHN DOE 1-10
and XYZ CORP. 1-10 (fictitious names for
persons and/or entities as yet unidentified),
Defendants.

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Civil Action No. 16-8351 (SRC)(CLW)

OPINION

CHESLER, District Judge
Plaintiff Victor Gonzalez, Jr.’s (“Plaintiff”) brings this action under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1345(b), against Defendant United States Department of
Transportation (“Defendant”). Now before the Court is Defendant’s motion to dismiss
Plaintiff’s complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil
Procedure 12(b)(1), or for failure to state a claim, pursuant to Federal Rule of Civil Procedure
12(b)(6). (ECF No. 5.) Plaintiff opposes the motion. (ECF No. 8.) The Court has reviewed the
parties’ submissions and proceeds to rule without oral argument. See Fed. R. Civ. P. 78(b). For
the reasons stated below, Defendant’s motion will be granted.
I.

BACKGROUND
The underlying matter arises out of an automobile accident that occurred on April 25,

2014, in Parsippany, New Jersey. (Compl. ¶ 9.) Plaintiff was heading eastbound on I-80, an
interstate highway, when the vehicle that he was operating came into contact with “debris on the

highway.” (Id.) Plaintiff alleges that he suffered injuries in the resulting collision. (Id. at ¶ 12.)
He alleges that the accident occurred either on or near a portion of I-80 that was under
construction. (Id. at ¶ 10.)
Plaintiff commenced the instant action in November 2016, asserting a single claim for
negligence under Section 1346(b) of the FTCA. Plaintiff alleges that Defendant “owned,
controlled, maintained, and supervised the construction zone and adjacent areas” where the
collision occurred. (Id. at ¶ 12.) He further alleges that Defendant
did not keep the construction zone in a safe condition; . . . did not
exercise proper care; . . . caused a dangerous and hazardous
condition to exist; . . . allowed a nuisance to exist; . . . failed to
provide proper safeguards and/or warnings at the construction
zone; . . . [and] failed to provide proper, safe, and clear access for
persons allowed lawfully at or near the construction zone . . . .
(Id. at ¶ 11, 14.)
Defendant now moves to dismiss Plaintiff’s claim against it pursuant to Rule 12(b)(1) or,
alternatively, Rule 12(b)(6). Defendant argues, among other things, that it is not a proper
defendant of Plaintiff’s FTCA claim and that it is therefore immune from suit. (ECF No. 5-1,
Memorandum of Law in Support of Defendant’s Motion to Dismiss (“Def. Mov. Br.”), at 7.)
II.

LEGAL STANDARD
“The district courts of the United States . . . are ‘courts of limited jurisdiction.’” Exxon

Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552, 125 S. Ct. 2611, 162 L.Ed.2d 502 (2005)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128
L.Ed.2d 391 (1994). “They possess only that power authorized by Constitution and statute,
which is not to be expanded by judicial decree.” United States v. Merlino, 785 F.3d 79, 82 (3d
Cir. 2015) (quoting Kokkonen, 511 U.S. at 377)). Consequently, when a federal court finds that
it lacks jurisdiction over an action, “the only function remaining . . . is that of announcing the

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fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.
Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19
L.Ed. 264 (1869)); see Fed. R. Civ. P. 12(h)(3).
“As a sovereign, the United States is immune from suit unless it consents to be sued.”
White-Squire v. United States Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010) (citing United
States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d 607 (1980)); see United
States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941)). “Its consent to be
sued must be ‘unequivocally expressed,’ and the terms of such consent define the court’s subject
matter jurisdiction.” Id. (quoting Mitchell, 445 U.S. at 538).
Because “[s]overeign immunity is jurisdictional in nature,” FDIC v. Meyer, 510 U.S.
471, 475, 114 S. Ct. 996, 127 L.Ed.2d 308 (1994), a motion to dismiss for reasons of sovereign
immunity is properly brought pursuant to Rule 12(b)(1). Challenges to subject matter
jurisdiction may be regarded as facial or factual. Gould Elecs., Inc. v. United States, 220 F.3d
169, 176 (3d Cir. 2000). Facial challenges “contest[] the sufficiency of the pleadings,” S.D. v.
Haddon Heights Bd. of Educ., 833 F.3d 389 n.5 (3d Cir. 2016) (quoting Taliaferro v. Darby
Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006), whereas factual challenges contest the facts
underlying a plaintiff’s jurisdictional allegations, Constitution Party v. Aichele, 757 F.3d 347,
358 (3d Cir. 2014); Mortensen v. First Fed. Sav. & Loan, 549 F.2d 884, 891 (3d Cir. 1977).
When reviewing a facial challenge, a court “must only consider the allegations of the
complaint[,]” taken as true, “and documents referenced therein and attached thereto, in the light
most favorable to the plaintiff.” In re Schering Plough Corp., 678 F.3d at 243 (quoting Gould,
220 F.3d at 176) (internal quotation marks omitted). In contrast, when reviewing a factual
challenge, “a court may weigh and ‘consider evidence outside the pleadings[,]’” Aichele, 757

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F.3d at 358 (quoting (Gould Elecs. Inc., 220 F.3d at 176)), and “no presumptive truthfulness
attaches to [the] plaintiff's allegations[,]” Mortensen, 549 F.2d at 891.
III.

DISCUSSION
“The FTCA operates as a limited waiver of the United States’s sovereign immunity.”

White-Squire, 592 F.3d at 456. Through Section 1346(b), Congress waives sovereign immunity
for
claims 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, 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 or omission occurred.
28 U.S.C. § 1346(b)(1). Because “the FTCA itself is the source of federal courts’ jurisdiction to
hear tort claims” brought under that statute, Section 1346(b) functions as both a waiver of
sovereign immunity and a statutory grant of subject matter jurisdiction. CNA v. United States,
535 F.3d 132, 140 (3d Cir. 2008).
As Defendant notes, the United States “is the only proper defendant in a case brought
under the FTCA.” Id. at 138 n.2. Thus, a federal agency such as Defendant cannot be sued in its
own name on a claim, such as Plaintiff’s, that is cognizable under Section 1346(b). Meyer, 510
U.S. at 476; 28 U.S.C. § 2679(a). Consequently, this Court lacks subject matter jurisdiction over
Plaintiff’s claim against Defendant. Having determined this to be the case, the Court will
dismiss Plaintiff’s claim against Defendant on this ground.1

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Although the Court is compelled to dismiss Plaintiff’s claim solely on the ground that it lacks subject matter
jurisdiction over any claim against a federal agency brought under the FTCA, it notes that what appears to be
Plaintiff’s most plausible claim against the United States, the proper defendant, would face jurisdictional obstacles
as well. In particular, to the extent that Plaintiff’s negligence claim against the United States were based on the
Department of Transportation’s approval or funding of the construction project at issue, such claim seems likely to
fall within the so-called discretionary function exception. See 28 U.S.C. § 2680(a); Merando v. United States, 517
F.3d 160, 164 (3d Cir. 2008). Through that exception, set forth in Section 2680(a), the United States retained

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IV.

CONCLUSION
Accordingly, for the foregoing reasons, Defendant’s motion to dismiss for lack of subject

matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), is GRANTED. An appropriate order
shall issue.

/s Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: July 17, 2017

sovereign immunity in actions arising from a federal agency’s or a government employee’s performance of a
“discretionary function,” 28 U.S.C. § 2680(a), particularly if that agency’s or employee’s decision was “grounded in
social, economic, and political policy.” Baer v. United States, 722 F.3d 168, 176 (3d Cir. 2013) (quoting United
States v. Varig Airlines, 467 U.S. 797, 814, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984)). Here, the Department of
Transportation Secretary’s approval of funding for the construction project at issue would, on its face, appear to fall
within this category. Therefore, the Court may lack subject matter jurisdiction over such claim as well.

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