WHITE v. BRONSON et al

Filing 12

MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE WALLACE W. DIXON on 08/09/2011. RECOMMENDED that Defendants' motion to dismiss be GRANTED and Plaintiffs complaint for money owed be DISMISSED. Re 8 MOTION to Dismiss or in the Alternative MOTION for Summary Judgment filed by UNITED STATES OF AMERICA., MEMORANDUM AND OPINION. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHANTÉ S. WHITE,
Plaintiff, pro se,
v.
UNITED STATES OF AMERICA,
Defendant.

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MEMORANDUM OPINION
AND RECOMMENDATION
1:11CV300

This matter comes before the court on Defendant’s motion to dismiss, or in the
alternative, for summary judgment [docket no. 8] on Plaintiff’s complaint for money
owed [docket no. 5]. Defendant argues that the complaint should be dismissed for
lack of subject-matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1) or for failure to
state a claim upon which relief can be granted pursuant to FED. R. CIV. P. 12(b)(6).
Defendant alternately argues that summary judgment should be granted in its favor
pursuant to FED. R. CIV. P. 56. Plaintiff has been notified of her right to file a
response [docket no. 11], but she has not done so. The time to file a response has
passed, and the matter is thus ripe for disposition. The parties have not consented
to the jurisdiction of the magistrate judge; therefore, the motion must be dealt with
by way of recommendation.

For the reasons discussed herein, it will be

recommended that the court grant Defendant’s motion to dismiss Plaintiff’s complaint
for money owed.

BACKGROUND
Plaintiff alleges that an in-transit United States Postal Service (“USPS”) truck,
driven by Curtis Lee Bronson, lost a tire that then hit her vehicle. (Compl.) She filed
— in the General Court of Justice, District Court Division, Small Claims Court of
Durham County, North Carolina — a complaint against Mr. Bronson and USPS for
money owed. (Compl.)
Because the United States Attorney certified that at the time of the events that
gave rise to Plaintiff’s complaint Mr. Bronson was acting within the scope of his
employment with the federal government (See Mem. in Support of Mot. to Dismiss,
Exh. A) (“Mem.”) [docket no. 9], the United States removed the action to this court,
deemed the action one against the United States under the Federal Tort Claims Act
(“FTCA”), and substituted itself as Defendant. See 28 U.S.C. §§ 1441, 1442(a), and
2679(d).
STANDARD OF REVIEW
Because this court lacks subject-matter jurisdiction over this case and thus the
Plaintiff’s complaint for money owed can and should be dismissed under Fed. R. Civ.
P. 12(b)(1), only this ground for dismissal is considered.
“When a defendant's motion to dismiss challenges a federal court's subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), a plaintiff bears the burden
of proving that such jurisdiction exists.” Esau v. Victor, No.1:02CV147, 2003 WL
1522946, at *2 (M.D.N.C. 2003) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th

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Cir.1982)). “A court should dismiss an action for want of subject matter jurisdiction
‘only if the material jurisdictional facts are not in dispute and the moving party is
entitled to prevail as a matter of law.’ In ruling on a motion to dismiss for lack of
jurisdiction, the court may consider materials beyond the bare pleadings.” Esau,
2003 WL 1522946, at *2 (quoting and citing Evans v. B.F. Perkins Co., 166 F.3d
642, 647 (4th Cir. 1999)). With these principles in mind, the court now turns to the
motion to dismiss.
DISCUSSION
Defendant argues that Plaintiff’s complaint should be dismissed for lack of
subject-matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1) because Plaintiff did
not file an administrative claim with USPS prior to filing her complaint for money
owed. (Mem. 7-8). Plaintiff, who bears the burden of proving the court’s subjectmatter jurisdiction, has filed no response to Defendant’s motion. Defendant’s motion
is thus unopposed.
The FTCA, which governs civil lawsuits against the United States, 28 U.S.C.
§ § 1346, 2671 et. seq., requires that an administrative claim be filed with the
responsible federal agency before a complaint against the United States is filed in
court. 28 U.S.C. § 2675(a). Where a Plaintiff fails to first file an administrative claim,
the court lacks subject-matter jurisdiction. Plyler v. United States, 900 F.2d 41, 42
(4th Cir. 1990); Henderson v. United States, 785 F.2d 121, 124 (4th Cir. 1986).

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According to Linda K. Crump, Supervisor, Tort Claims Examiner/Adjudicator
with the National Tort Center, United States Postal Service, USPS has not received
an administrative claim1 from or on behalf of Chanté S. White. (See Mem. Exh. C.
¶¶ 4, 6-7.) Plaintiff, as explained above, has not filed a response in opposition to
Defendant’s motion and thus has not contravened this assertion. Because Plaintiff
has failed to file the administrative claim required by law to precede her complaint,
her complaint should be dismissed for lack of jurisdiction.
CONCLUSION
It is therefore RECOMMENDED that Defendants’ motion to dismiss be
GRANTED and Plaintiff’s complaint for money owed be DISMISSED.

_______________________
WALLACE W. DIXON
United States Magistrate Judge
Durham, NC
August 9, 2011

1

A claim is filed “when a Federal agency receives from a claimant, his duly
authorized agent or legal representative, an executed Standard Form 95 or other written
notification of an incident, accompanied by a claim for money damages in a sum certain
for injury to or loss of property, personal injury, or death alleged to have occurred by reason
of the incident; and the title or legal capacity of the person signing, and is accompanied by
evidence of his authority to present a claim on behalf of the claimant as agent, executor,
administrator, parent, guardian, or other representative.” 28 C.F.R. § 14.2(a).

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