Gibson v. Smith
| Decision Date | 15 April 2016 |
| Docket Number | CIVIL ACTION NO. 4:15-CV-02391 |
| Parties | DAVID GIBSON Plaintiff, v. TAMARRA SMITH, and UNITED STATES POSTAL SERVICE Defendants. |
| Court | U.S. District Court — Southern District of Texas |
On January 20, 2016, the parties consented to proceed before a magistrate judge for all purposes, including the entry of a judgment under 28 U.S.C. § 636(c). (Docket Entry #16). In this action, Plaintiff David Gibson ("Plaintiff," "Gibson") seeks to recover from Defendant United States of America ("United States"), for injuries caused by the alleged negligence of Defendant Tamarra Smith ("Smith"), a United States Postal Service ("USPS, "Postal Service") employee during the operation of a USPS vehicle. Pending before the court is a motion to dismiss and for summary judgment, which was filed by Defendants. (Defendants' Motion to Dismiss and Motion for Summary Judgment ["Defendants' Motion"], Docket Entry #10). Plaintiff has responded in opposition to the motion, and Defendants have filed a reply. (Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant United States Postal Service's Motion to Dismiss and Motion for Summary Judgment ["Response"], Docket Entry #13; Defendants' Reply to Plaintiff's Opposition to Defendants' Motion to Dismiss and Motion for Summary Judgment ["Reply"], Docket Entry #18). After considering the pleadings, the evidence submitted, and the applicable law, it is ORDERED that Defendants' motion is GRANTED.
On April 16, 2013, Tamarra Smith was working as a driver for the United States Postal Service. (Plaintiff's Original Petition ["Original Petition"], Docket Entry #1, at 2; Defendants' Motion at 1; Response at Exhibit ["Ex."] 2). On that date, Smith approached an intersection, to attempt a left turn, while Plaintiff David Gibson approached the same intersection, traveling in the opposite direction. (Response at Exhibit ["Ex."] 2). Smith apparently failed to yield the right of way,1 and struck Gibson with her vehicle. (Id.). Plaintiff complains that he suffered property damage, and serious, debilitating injuries as a result of the collision. (Original Petition at 2; Response at Ex. 2.). He claims, specifically, that the bumper and side panel of his car were damaged, and that his left knee required sutures. (Response at Ex. 2). He also alleges that he suffered cervical neck fractures at the C5-6 and C6-7 levels, which required surgical treatment and physical therapy. (Id.). The parties agree that, at the time of the accident, Smith was driving a USPS vehicle, and that she was acting within the course and scope of her employment. (Defendants' Motion at 1; Original Petition at 2).
On April 15, 2015, Plaintiff filed an administrative "Claim for Damage, Injury, or Death" with the Accident and Claims Section of the United States Postal Service. (Response at 2, Ex. 1, Ex. 2, Ex. 3). However, Smith's claim was denied, because it was not received until April 20, 2015, which was four days beyond the two year statute of limitations period established by the Federal Tort Claims Act, 28 U.S.C. § 2401(b). (Defendants' Motion at Ex. 2, Ex. 3). In its letter denying the claim, the Postal Service also advised Gibson that "the United States of America is the only proper defendant in a civil action brought pursuant to the Federal Tort Claims Act[.]" (Id. at Ex. 2).
On August 19, 2015, Plaintiff filed this action against Tamarra Smith and the United States Postal Service. In his original complaint, Gibson claims that Smith acted negligently in the operation of a USPS vehicle, proximately causing the injuries that he sustained. (Original Petition at 2). He also alleges that the Postal Service is responsible for Smith's conduct, as her employer, and, that it acted negligently in entrusting her with an automobile. (Id. at 3). On December 7, 2015, Plaintiff amended his complaint to add the United States of America as a party to the lawsuit, to clarify that Smith was driving a vehicle owned by the United States of America , and to point out that she was employed by the Postal Service at the time of the accident. (Plaintiff's Amended Petition ["Amended Petition"], Docket Entry #7, at 1).
On December 17, 2015, Defendants filed this motion to dismiss, for lack of subject matter jurisdiction, and for failure to state a claim, as well as a motion for summary judgment, under Rules 12(b)(1) and 12(b)(6), and 56 of the Federal Rules of Civil Procedure. In the first argument, Defendants contend that Plaintiff's suit must be dismissed, because he failed to present his claims within two years of the injuries alleged. (Motion to Dismiss at 5-7). The United States also argues that the court lacks subject matter jurisdiction, because Gibson has sued the wrong entity. (Id. at 7-10). In that regard, Defendants point out that the Federal Tort Claims Act provides a limited waiver of sovereign immunity for tort actions brought against the United States of America only, and does not allow a similar waiver for claims alleged against federal agencies or its employees. (Id. at 8-9). Finally, Defendants insist that Plaintiff's suit must be dismissed, because he has not complied with the Rule 4 requirement that the U.S. Attorney General be served within 120 days of the filing a complaint against the United States. (Id. at 10-12). Having reviewed the pleadings, the evidence, and the applicable law, the court orders that Defendants' motion to dismiss for lack of subject matter jurisdiction is granted under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and that Plaintiff's claims are dismissed.
Federal Rule of Civil Procedure 12(b)(1) authorizes the dismissal of an action if the court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (quoting Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998))."The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction." Alfonso v. United States, 752 F.3d 622, 625 (5th Cir. 2014) (quoting In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011)). In reviewing a Rule 12(b)(1) motion, the court may rely on any of the following to decide the matter: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Here, the court has considered the complaint, as well as the uncontested facts set out in the record.
If a Rule 12(b)(1) motion is filed with other Rule 12 motions, as in this case, the court should consider the jurisdictional attack, before addressing any challenge on the merits of the case. Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). This practice prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits, and does not prevent the plaintiff from pursuing the claim in a court with proper jurisdiction. Id.
A Rule 12(b)(1) motion to dismiss is characterized as either a "facial" attack, that is, the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a "factual" attack, that is, the facts in the complaint supporting subject matter jurisdiction are questioned. Turner Indus. Group, LLC v. Int'l Union Operating Eng'rs, 8 F. Supp.3d 875, 883 (S.D. Tex. 2014). If, as in the present case, a defendant raises a "factual attack" on the court's subject matter jurisdiction, the court may consider any evidence submitted by the parties that is relevant to the issue of jurisdiction. Gilkerson v. Chasewood Bank, 1 F. Supp. 3d 570, 578 (S.D. Tex. 2014) (citing Irwin v. Veterans Admin, 874 F.2d 1092, 1096 (5th Cir. 1989)); see Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981); see also Williamson, 645 F.2d at 412-13. A defendant making a factual attack on a complaint may provide supporting affidavits, testimony, or other admissible evidence. Id. To satisfy his burden of proof, the plaintiff may also submit documentation to show, by a preponderance of the evidence, that subject matter jurisdiction is present. Id. "The court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Turner, 8 F. Supp. 3d, 884. In resolving a factual attack, the "court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Gilkerson, 1 F. Supp. 3d at 578 (quoting Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981)). Further, "no presumptive truthfulness attaches to the 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." In re The Complaint of RLB Contracting, Inc., 2014 WL 6865875 at *3, n.7 (5th Cir. 2014) (quoting Williamson, 645 F.2d at 413).
In this case, Defendants have made a "factual attack" on the court's subject matter jurisdiction, by submitting evidence in support of the Rule 12(b)(1) motion. That evidence consists of a picture of the government vehicle that Smith was driving at the time of the accident; Plaintiff's correspondence with the United States Postal Service National Tort Center; and an affidavit from Ms. Kimberly Herbst, a Supervisor and...
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