KASSIN v. UNITED STATES POSTAL SERVICE et al
Filing
16
OPINION. Signed by Judge Joel A. Pisano on 11/30/2011. (gxh)
NOT FOR PUBLICATION
CLOSED
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
ELAINE IRIS KASSIN,
Plaintiff,
v.
THE UNITED STATES
POSTAL SERVICE, et al.,
Defendants.
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Civil Action No. 11-01482 (JAP)
OPINION
PISANO, District Judge.
This is an action brought by Elaine Iris Kassin against the United States Postal Service
(the “Postal Service”); John Potter, Postmaster General; and the Attorney General of the United
States (collectively, “Defendants”). Presently before the Court is a Motion to Dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 8(a) by the Defendants. Plaintiff
opposes the Motion. The Court decides the matter without oral argument pursuant to Federal
Rule of Civil Procedure 78. For the reasons below, this case is dismissed with prejudice.
I.
Factual Background
Plaintiff Elaine Iris Kassin filed the instant Complaint on March 16, 2011. In it, she
alleged “wrongful termination by the USPS as a result of whistleblowing and firsthand
knowledge of business practices which violate the terms of federal operation regulations set forth
by the Office of the Inspector General (“OIG”) and the United States Government.” Compl. 3.
The Complaint also makes clear that Plaintiff was not an employee of the Postal Service, but
rather of “Federal Contracts Consultants, Inc.,” which had a contract with that agency. Kassin
states that she was employed from January 11, 2010 until April 15, 2010, when she was
apparently terminated from her position “in the contract support area of the IT services support
department.” Id. at 7.
Kassin alleges that the purchasing and contracting practices of the Postal Service are
riddled with unfair preferential treatment and incompetence, which result in wasteful government
spending. She also refers to “wrong-doing and corruption as it relates to OSHA, labor
regulations, contract fraud, favoritism, nepotism and other issues.” Id. at 6. The Complaint
alleges “maltreatment” of employees and contractors, and suggests that her termination was a
form of retaliation for her knowledge of the alleged practices. Kassin seeks “$100 million
dollars in punitive damages for being subjected to the above acts of federal regulation and labor
regulation violations and being wrongfully terminated for an act of ‘whistleblowing.’” Id. at 28.
In addition, Kassin’s Complaint seeks an end to all the alleged unfair practices and violations,
“removal” of the President of Federal Contracts Consultants (her former employer), and a letter
of apology from a USPS employee. Id. at 30.
II.
Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Under Federal Rule
of Civil Procedure 12(b)(6), a court may grant a motion to dismiss if the complaint fails to state a
claim upon which relief can be granted. Recently, the Supreme Court refashioned the standard
for addressing a motion to dismiss under Rule 12(b)(6). See Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007). The Twombly Court stated that, “[w]hile a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation
to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do[.]” Id. at 555 (internal
citations omitted); see also Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007). More
recently, the Supreme Court has emphasized that, when assessing the sufficiency of a civil
complaint, a court must distinguish factual contentions and “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009).
In determining the sufficiency of a pro se complaint, the Court must construe it liberally
in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (following Estelle v.
Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). A pro se
complaint may be dismissed for failure to state a claim only if it appears “beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v.
Carlson, 652 F.2d 371, 373 (3d Cir. 1981). However, where a complaint can be remedied by an
amendment, a district court may not dismiss the complaint with prejudice, but must permit the
amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker, 363 F.3d 229 (3d
Cir. 2004) (complaint that satisfied notice pleading requirement that it contain short, plain
statement of the claim but lacked sufficient detail to function as a guide to discovery was not
required to be dismissed for failure to state a claim; district court should permit a curative
amendment before dismissing a complaint, unless an amendment would be futile or inequitable);
Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28
U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal pursuant
to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d
Cir. 1996).
Kassin’s Complaint poses the opposite problem for this Court than that addressed by the
Supreme Court in Twombly and Iqbal; it recites factual allegations, but fails to identify any legal
cause of action. The Plaintiff is not required to cite law in her Complaint, and this Court is
mindful that it must construe pro se complaints liberally. However, the Court is unable to
construct a legal claim to match the facts she alleges. As the Government notes in its Motion to
Dismiss, Kassin’s allegations do not fall under the Whistleblower Protection Act, 5 U.S.C. §
2302, because she was not a federal employee, and because that Act does not apply to the Postal
Service. Even if Kassin had sued her actual employer, she has not pled sufficient facts showing
any kind of wrongful termination. Rather, she has essentially stated the dates of her
employment, along with her suspicion that her termination was due to her knowledge of certain
government practices.
The most detailed allegations in Kassin’s Complaint relate to what she believes to be
inefficient and unfair Postal Service contracting practices. However, the Court cannot
manufacture a fitting legal cause of action. It is also extremely unlikely that the Plaintiff would
have standing to bring such a claim if it existed, as she cannot allege any personalized harm
arising from her allegations. Insofar as she would have standing to bring claims related to her
own employment, her allegations fail to state a claim for the reasons stated above. 1
III.
Motion to Dismiss for Lack of Subject Matter Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(1), a court may grant a motion to dismiss if
it lacks subject matter jurisdiction over the complaint. The Defendants’ Motion to Dismiss notes
that the Plaintiff has failed to identify any waiver of sovereign immunity that would give the
Court subject matter jurisdiction over her Complaint. Indeed, it is necessary for the Plaintiff to
state a legal claim in order for the Court to identify any potential waiver of sovereign immunity
that may correspond to the claim. As described above, the Plaintiff has failed to do so. Thus,
lack of subject matter jurisdiction provides further grounds for granting this Motion to Dismiss.
1
The Court further notes that it can discern no relation whatsoever between Plaintiff’s allegations and the Attorney
General of the United States, who is one of the named Defendants.
IV.
Conclusion
Where a complaint can be remedied by an amendment, a district court must dismiss it
without prejudice, allowing the plaintiff time to amend. Denton, 504 U.S. at 34; Alston, 363
F.3d 229. However, there is no conceivable circumstance in which the experiences cited by this
Plaintiff allow her a cause of action against these Defendants. Therefore, the Court finds that
allowing the Plaintiff to amend her Complaint would be futile, and this case is dismissed with
prejudice. An appropriate Order follows.
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
Dated: November 30, 2011
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