MARQUIS v. FARM SERVICE AGENCY et al

Filing 22

OPINION filed. Signed by Judge Anne E. Thompson on 2/2/2017. (mmh)

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RECEIVED
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NOT FOR PUBLICATION

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UNITED STATES DIST CT COURT
DISTRICT OF NE JERSEY

FEB O3 2017
AT 8:30
WILLIAM T. WALSH
CLERK

M

LORRIE MARQUIS,
Plaintiff,
Civ. No. 14-6715

v.
OPINION
FARM SERVICE AGENCY, UNITED
STATES DEPARTMENT OF
AGRICULTURE, THOMAS ORGO,
CYNTHIA FOISTER, and PAUL HLUBIK,
Defendants. THOMPSON, U.S.D.J.

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This matter has come before the Court on the

otion to dismiss brought by Defendants

\-Fa.mi S_ervice_Agency ("FSA"), United St~tes Departm nt of Agriculture ("USDA"), Thomas
- Orgo ("I?efendant Orgo"), Cynthia Foister ("Defendan Foister''), and_ Paul Hlubik ("Defendant
-___· Hlub~")(collectively ''Defendants~;).:

The motion is -

opposed.1 -- The Court has decided the

-motiOn based on the written submissions and without o al argument pursuant to Local Civil Rule
78.l(b). For the reasons stated he:rein, Defendants' mo ion will be granted; Count I of the

Complaint is dismissed.with prejudice;_ Count II of the omplaint is dismissed without prejudice.
The Court provides Plaintiff fifteen (15) days from the ate of the Order accompanying this
Opinion to amend the Complaintwith;respectto Count L

Despite this Court granting Plaintiffm~ltiple extensio -s of time to file an opposition to
Defendant's motion to dismiss, Plaintiff has failed to ti ely oppose Defendant's motion.
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BACKGRO
The Complaint of Plaintiff Lorrie Marquis ("P aintiff') asserts state-law claims for
breach of contract and fraud against the Defendants.

lairttiff makes the following allegations.

Plaintiff is a former employee of the FSA. (Comp!., , ECF No. 1). Plaintiff alleges that
Defendant Orgo, a co-worker, sexually harassed her
to her superior, Defendant Foister. (Id.

mf 12, 13).

d that she reported the sexual harassment

D fendant Foister conducted an investigation

and issued a report that resulted in a finding that Plain ifr s claim of sexual harassment was not
substantiated~· (Id~

W 13, 14).

That inyestigation and ubsequent report were biased, incomplete,

and:procured as a result of fraud because Defendant 0 go misrepresented the facts, Defendant
Foister purposefully and knowingly failed to properly nvestigate Plaintiffs claims and
·Defendant Hlu~_i~~9ll.~P!~~~~ith Foist~ to ensure tha .the.sexual assault investigation and
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subs-equerit-report exonerated Orgo. (Id.
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ifif 14-17).

Pl intiff was subjected to retaliation in the

fonn of an·: unwarranted :written-reprimand and unfavor ble temporary work assignment. (Id. , ,
· 19~2l)>"As~_a result of this fraud perpetrated by Defen ants, Plaintiff left the employ of the FSA..

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Federal Rule of Civil Procedure 12(b) 1)

-:<A m~tion to dismiss pursuant to Federal Rule o

Civil Procedure 12(b)(l) challenges the

existence ofa federal court's subject matter jurisdiction "When subject matter jurisdiction is
challenged under Rule 12(b)( 1), the plaintiff must bear

· . . _P<l:ckages,/nc~ v. l!'idelcor,

Inc~,

e burden of persuasion." Kehr

926 F.2d 1406, 1409 ( d Cir. 1991). A motion to dismiss for

lack of subjectmatter jUrisdiction may either (1) "attac the complaint on its face" or (2) "attack
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th~e~i~t~n~~ of s~bJect"maHeijurl~d1~tion i~ fa~t~'qu1te apart from any pleadings.;' Mortensen v.
Fir,stFed: Sav. &Loan Ass 'n, 549 F.2d 884, 891 (3d Ci. 1977). "The defendant may facially
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-,chalienge's~bject ~atter]~sd.iction by arguing that the complaint, on its face, does not allege
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sufficient grounds to establish subject matter jurisdict on." D. G. v. Somerset Hills School Dist.,
559 F.Supp.2d 484, 491 (D.N.J. 2008). On a facial a ack, a court must accept the allegations in
the complaint as true. Mortensen, 549 F.2d at 891.

2. Federal Rule of Civil Procedure 12
A motion under Federal Rule of Civil Proced e 12(b)(6) tests the sufficiency of a
complaint. Kost v. Kozakiewicz, 1F.3d176, 183 (3d ir. 1993). The defendant bears the burden
of showing that no claim has been presented. Hedges . United States, 404 F.3d 744, 750 (3d
-Cir~ 2005)~

-Whe1.1consideringa Rule 12(b)(6) motion a district court s~ould conduct a three-_

part analysis.- SeeMalleus v. George; 641 F.3d 560,.5 3 (3d Cir. 2011). "First, the court must
'take note of the elements a plaintiff must plead to stat a claim."' Id. (quoting Ashcroft v. Iqbal,
- · · 56-l.l~~ 662, 6.75{2009)). -Secoml; the.court must ace t as true all of a plaintiffs: well-pleaded -:·:
factual allegations and construe the complaint in the 1i t most favorable to the plaintiff. Fowler

-· v.: UPMC~~hadyside, 578 F.3d 203, 210-ll (3d Cir. 20 9); see also Connelly_v. Lane Const.-

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Corp.-,_Nc;i.-14-3792, 2016 WL 106159 (3d Cir. Jart. 11 2016). However; the court may
- _. ·disregar~:~:any_cqµclusocy-leg~ allegat_ions. Fowler, 57 F.3cf~t 293. ,Finally,the court must · ·

d~t~~~iftiri~-;hether the "facts are sufficient to show tha pfa~tiff has ~,:,~-lausibl~: ~laim for

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relief~~" -Id~ at 211 (quoting Iqbal, 556 U;S. at 679). If he complaint does riot. demonstrate more

-·-.- th~':a,_','111ere possibility of misconduct,'' the complaint ust be dismi~sed_~ _Se~ _Ge!man v. ~t(l,fe
Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2 09) (quoting Iqbal, 556 U.S. at 679).
ANALYSIS

-1. . Federal Tort Claims Act
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Defendants argue that the Court lacks subject-m tter jurisdiction over Plaintiffs claiin -·
for fraud contained in Count I of the Complaint. "[T]h United States, as a sovereign, is immune . -

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- from suit save as it consents to be sued ... , and the term of its con:sent tobe-'sued in any court
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define that court's jurisdiction to entertain that suit." nited States v. Mitchell, 445 U.S. 535, 538
(1980). The Federal Tort Claims Act ("FTCA") is a 1 mited waiver of sovereign immunity that
·provides the exclusive remedy for tort claims against
States, 559 F.3d 189, 193 (3d Cir. 2009). It provides

e United States. See Santos v. United
at the United States shall be liable

for injury or loss of property, or personal inj
or death caused by the negligent
or wrongful act or omission of any employee f the Government while acting
within the scope of his office or employment, der circumstances where the
United States, if a private person, would be lia le to the claimant in accordance
with the law of the place where the act or otnis ion occurred.
28 U.S.C.A. §_ 1346(b)(l) .. "[T]he FTCA does not itse f create a substantive cause of action
- against the United States; rather, it provides a mechan'sm for bringing a state law tort action
against the federal government in federal court." In r Orthopedic Bone Screw Prod. Liab.
· .. Litig., 264-F.3d 344; . 362~(3p.Cir._2001).~.:"The sole pr per defendant on art FTCA claim is the

United States, and not its employees or officers whose conduct gives rise to the tort claim."
Pilkey v. Lappin, 2006 WL 1843098,. at *8 (D.N.J. Jun .28, 2006) ...

In this case, Plaintiff brings a tort claiJll., fraud;~ against a federal agency (the USDA), one

ofits.~components(the.FSA), and·thre~·FSA e~ployee ~·· Thisis imp~rmi~siblC, and the only
proper defendant in an FTCA-case.is.the UiJit.ed: States.. -.
Further, an atnendment to the ComplaiQtto sub titute the United States as a Defendant .

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would be futile. Defendant argues.-that even. -if Plaintif ,.s fraud claim were brought against the ·
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United States, the claim must be dismissed because 28

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.S.C. § 2680(h) bars fraud claims '

against the United States.. The FTCA provides that the limited waiver of soverei~ immunity
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contained therein shall not apply to "any claim arising ut of' certain enumerated torts
committed by federal employees, including "assault, b t1:ery; fal~e iiTI.pn~onmeilt, :false mest,
malicious prosecution, abuse of process, libel, slander,
with contract rights." 28

isr~presentation, ·deceit,

or .interference .

u.s:c. § 26SO(h). ·Although' fraud'' does.not appear in the list of
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enumerated torts, the Third Circuit has held that 28 U S.C. § 2680(h) bars claims arising out of
fraud. See Beneficial Consumer Disc. Co. v. Poltono icz, 47 F.3d 91 (3d Cir. 1995).
Accordingly, permitting Plaintiff to amend Count On of her Complaint would be futile.
Therefore, Plaintiff's claim for fraud contained in Co

t One of Plaintiff's Complaint is

dismissed with prejudice.

2. Plaintiff's Breach of Contact Claim
Defendant also argues Plaintiff's claim for bre ch of contract contained in Count II of the
Complaint must be dismissed because the Court of Fe eral Claims has exclusive jurisdiction
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·over breach ofcontracf against the United States whet .·the: damages sought are greater than

$10,000. "Under the Tucker Act, the Court of Federal Claims has exclusive jurisdiction over
· non;;. tort claims· against the· Governme~t ·for greater th

$10,000." •.Clinton v. Goldsmith, 526

U.S. 529, 539 n.13 (1999); see also Wilson v. Squirell, 2000 WL 33154288, at *6 (E.D. Pa. Jan.
29, 2000); Baig v_Nuc/ear ReguJator Commis~ion, ~01 WL 2214660, _at *6 (D.N.J ..2011).

--> -~-· ·-·In this case,-Plaintifr.s Complaint seeks·1noney damages, attorney's f~es, litigation costs,
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.punitivef damage$,

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and interest;· -(See Compt)~- Howev
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, Plaintiff fails to specify whether her

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breachofcbntractclaintfound.inCountTwo·seeks.mo e or less than $lO;OOo:~The only way

that this Courtwould have jurisdiction-over.Plaintiff's ole remaining clai~wmild be if Plaintiff
were seeking d~~ges of$~ 0~000 or less. ·Therefore,

e Court will· dismiss. Count II of the

Complaint without prejudice and grant Plaintiff fifteen ays to amend Count Two of her
Complaint to demonstrate .that she:is··seeking damages i the amount of$ l 0,000. or less. and that
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this Court has jurisdiction over h~r'·sole-·remairiing clai ·

· 3. Title VII Additionally, Defendants argu<Hhatthe Cotnpl nt showd-be dismissed for failure to state
a Claim becaus~·Plalntiff~as requireclto bring her clai. sunder Title VII, b~{failed to do so •.
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Title VII provides the exclusive remedy for federal

ployees alleging discrimination in the

workplace. Brown v. General Serv. Admin., 425 U.S. 820, 832-35 (1976); McGuire v. Potter,
2006 WL 2883234 at *5 (D.N.J. Oct 6. 2006). Beca e Title VII provides the exclusive remedy,
common-law claims thatarise from the same set off cts are preempted. McGuire, 2006 WL
2883234 at *5; Gurchensky v. Potter, 2010 WL 2292 71, at *6 (D.N.J. May 28, 2010).

In this case, Plaintiff's Complaint alleges bre ch of contract and fraud. Defendants argue
that Plaintiffs claims are "quintessential allegations f workplace discrimination, harassment,
and retaliation," (Defs/ Br; at 5, ECF No~ 18) and as result, her claims fall within the scope of
TitleVIL However,

fo contrastto the cases cited ~Y efendarits in their bnef, Plaintiffs

Complaint does not invoke Title VII or include any a legation of workplace discrimination based
onoile-.ofthe-enumeratedgrounds--race, color, reli 'on, sex, or national origin~ontained in
Title VIL See 42 U.S.C. § 2000e-2~ Defendanthas

niled to demonstrate that Plaintiffs breach

- of cont;rac(~d=fraud: claims are within. the=scope of "tie VII. Therefore, the Coiirt is not
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periniaded_t~af!itl~ VII preempts these·clainis~;:·:~,,-:. ___, =. -~ -~--

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.-_. : For.theloregoing reasons, D-efendants·'!-_lnotio will-be-.granted; Count I of the Complaint
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is-dismissed withj)rejudice; Count II-of the Complai t is dismissed. without prejudice. The Court

provides Plaintiff fifteen (15) days from thedate of -e Order accompanying_this Opinion to
amend the_ Complaint with respect to Count II. An a propriate order will follow. -

ANNE E. THOMPSON, U.S.D ..

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Date:-

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