Blumberg v. Rolle
| Decision Date | 09 April 2019 |
| Docket Number | 1:18-cv-09043-NLH-AMD |
| Parties | LORRAINE BLUMBERG, Administratrix of the Estate of Richard Blumberg, and individually, and in her own right, Plaintiff, v. WILLIAM J. ROLLE, JR., FRM JR. TRUCKING INC., UNITED STATES POSTAL SERVICE, Defendants. |
| Court | U.S. District Court — District of New Jersey |
KENNETH F. FULGINITI
SARAH FILIPPI DOOLEY
DUFFY PARTNERS
PHILADELPHIA, PA 19103
On behalf of Plaintiff
MARC R. JONES
CIPRIANI & WERNER PC
SUITE B
On behalf of Defendant William J. Rolle, Jr. and FRM Jr. Trucking, Inc.
JOHN TUDOR STINSON, JR.
OFFICE OF THE U.S. ATTORNEY
DISTRICT OF NEW JERSEY
ROOM 430
TRENTON, NJ 08608
On behalf of Defendant United States Postal Service
This matter concerns claims by Plaintiff arising out of a collision involving a car occupied by Plaintiff and her husband and a tractor trailer transporting mail for the United States Postal Service. USPS has moved to dismiss Plaintiff's claims for lack of subject matter jurisdiction. For the reasons expressed below, USPS's motion will be denied.
According to Plaintiff's complaint, on July 6, 2017, Plaintiff, Lorraine Blumberg, and her husband, Richard Blumberg, were driving through an intersection in Marlton, New Jersey when Defendant, William Rolle, Jr., who was driving a tractor trailer containing USPS mail, ran a red light and struck the Blumbergs' car. Both Plaintiff and her husband sustained serious injuries. Richard Blumberg died from his injuries two months later.
Plaintiff, on her behalf and on behalf of her husband's estate, has brought a four-count complaint for negligence, negligent infliction of emotional distress, wrongful death, and a survival action, against Rolle, the trucking company he worked for, Defendant FRM Jr. Trucking, Inc., and USPS. Rolle and FRM have filed cross-claims for contribution and indemnification against USPS.1
Because an agency of the United States is a Defendant,2 Plaintiff brought her claims in this Court pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401, 2671-80.3 Plaintiff claims that Rolle "acted as an agent, workman, employee and/or servant" of USPS at the time of the accident, and that USPS had a duty to properly hire and supervise "employees and drivers" involved in this matter.Plaintiff seeks to hold USPS liable for the alleged negligence of Rolle and FRM (respondeat superior), and for its own liability for its alleged negligent hiring, training, and supervision of Rolle and FRM, and its alleged failure to timely discharge Rolle and FRM.
USPS has moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Civil Procedure Rule 12(b)(1). USPS argues that FRM is an independent contractor engaged by the USPS to transport mail pursuant to a detailed, written contract. Under the terms of such contract, USPS contends that FRM bore all responsibility for its trucks, drivers, and the performance of FRM's duties under the contract. USPS further contends that FRM agreed to bear all liability for harm to persons and property, and to indemnify USPS from any and all tort liability, in connection with FRM's performance under the contract.
USPS therefore argues that under the FTCA and its limited waiver of sovereign immunity, a plaintiff is barred from bringing an action against the United States to recover for damages for the allegedly negligent conduct of an independent contractor or the contractor's employee. USPS further argues that the FTCA does not waive sovereign immunity for claims of negligent hiring, training, supervision, and timely discharge because it is a discretionary function for which it is entitledto sovereign immunity.
Plaintiff argues that Rolle and FRM are not independent contractors but rather employees of USPS due to USPS's control over their actions. Plaintiff further contends that the discretionary function exception does not apply to her claims against USPS. Plaintiff also argues that USPS's motion is premature because there has been no discovery as to USPS's control and supervision of Rolle and FRM, and the contract between Rolle and FRM, standing alone, does not negate Plaintiff's claims.4
Plaintiff's asserted basis for subject matter jurisdiction over this matter is the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and 28 U.S.C. § 1367 for Plaintiff's state law claims.5
"A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matterjurisdiction." Gould Electronics Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000). There is "a crucial distinction, often overlooked, between 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings." Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
On a facial attack, "the court must consider the allegations of the complaint as true," and the court employs the Rule 12(b)(6) standard for assessment. Id.; see also Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) ().
"The factual attack, however, differs greatly," because (1) "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims," and (2) "the plaintiff will have the burden of proof that jurisdiction does in fact exist." Mortensen, 549 F.2d at 891.
The distinction between Rules 12(b)(1) and 12(b)(6) is important because the 12(b)(6) standard affords significantlymore protections to a nonmovant. Hartig Drug Company Inc. v. Senju Pharmaceutical Co. Ltd., 836 F.3d 261, 268 (3d Cir. 2016). A Rule 12(b)(1) "factual challenge strips the plaintiff of the protections and factual deference provided under 12(b)(6) review." Id. (citation omitted).
Moreover, the Third Circuit Court of Appeals has made it clear that a factual attack may only occur after the filing of an answer. Long v. Southeastern Pennsylvania Transportation Authority, 903 F.3d 312, 320 (3d Cir. 2018) (); S.D. by A.D. v. Haddon Heights Board of Education, 722 F. App'x 119, 124 (3d Cir. 2018) (); Mortensen, 549 F.2d at 891 (); id. at 895 n. 22 ().
The procedural posture of USPS's motion and the content of Plaintiff's allegations require the denial of USPS's motion at this time.
As a primary matter, USPS's motion is procedurally improper because it constitutes a factual attack lodged before it has filed its answer. USPS has moved to dismiss Plaintiff's claims, arguing that because Rolle and FRM were independent contractors, and not employees of the United States, USPS cannot be held liable for their alleged negligence.6 The United States haswaived sovereign immunity for some negligence suits for injuries caused by Government employees, 28 U.S.C. § 1346(b), but government employees do not include "any contractor with the United States," 28 U.S.C. § 2671. This is called the "independent-contractor exemption." E.D. v. United States, --- F. App'x ---, 2019 WL 994296, at *2 (3d Cir. 2019) (citing Norman v. United States, 111 F.3d 356, 357 (3d Cir. 1997)). "'A critical element'" in determining whether the independent-contractor exception applies is "'the power of the Federal Government to control the detailed physical performance of the contractor.'" Id. (quoting United States v. Orleans, 425 U.S. 807, 814 (1976)) (other citation omitted). "In other words, 'the question here is . . . whether [the] day-to-day operations are supervised by the Federal Government." Id. (quoting Orleans, 425 U.S. at 815).
Rather than relying solely upon the allegations in Plaintiff's complaint, which, if it had, would classify USPS's motion as a facial attack, USPS points to multiple Transportation & Contract Delivery Services agreements ("Transportation Agreements") entered into between FRM and USPS to support its position that Rolle and FRM are independentcontractors for whom it holds no liability.7 These agreements were not referenced in or attached to Plaintiff's complaint. Therefore, the only way the Transportation Agreements can be considered at this stage is if the Court construes, under the traditional Rule 12(b)(6) standard, Plaintiff's claims to be based on the Transportation Agreements. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (...
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