McNiff v. Asset Management Specialists, Inc.

• Decision Date: 30 September 2004
• Docket Number: No. CIV.A. 03-CV-04743.,CIV.A. 03-CV-04743.
• Citation: 337 F.Supp.2d 685
• Parties: William McNIFF and Eileen McNiff, Plaintiffs v. ASSET MANAGEMENT SPECIALISTS, INC.; Asset Management Specialists; United States Department of Housing and Urban Development; United States Department of Housing and Urban Development, Office of Housing; and United States of America, Defendants
• Court: U.S. District Court — Eastern District of Pennsylvania

337 F.Supp.2d 685

William McNIFF and Eileen McNiff, Plaintiffs v. ASSET MANAGEMENT SPECIALISTS, INC.; Asset Management Specialists; United States Department of Housing and Urban Development; United States Department of Housing and Urban Development, Office of Housing; and United States of America, Defendants

No. CIV.A. 03-CV-04743.

United States District Court, E.D. Pennsylvania.

September 30, 2004.

COPYRIGHT MATERIAL OMITTED

William E. Haggerty, Esquire, Lancaster, PA, for Plaintiffs.

Richard Mentzinger, Esquire, Assistant United States Attorney, Philadelphia, PA, for Defendants United States Department of Housing and Urban Development; United States Department of Housing and Urban Development, Office of Housing; and United States of America.

OPINION

GARDNER, District Judge.

INTRODUCTION

This matter is before the court on the Federal Defendant's Motion to Dismiss, which motion was filed October 3, 2003.¹ This matter is also before the court on Federal Defendants' Motion to Dismiss Crossclaim, which motion was filed December 23, 2003.² For the reasons expressed below, we grant both of the federal defendants'³ motions to dismiss.

Specifically, we grant the Federal Defendant's Motion to Dismiss for lack of subject matter jurisdiction regarding Counts VII through XII of plaintiffs' Amended Complaint because the United States Department of Housing and Urban Development and United States Department of Housing and Urban Development, Office of Housing are not proper parties in this action. In addition, we dismiss Counts XIII through XV of Plaintiffs' Amended Complaint for lack of subject matter jurisdiction because plaintiffs did not file an administrative claim in this matter. Finally, because we do not have either federal question or diversity jurisdiction, we decline to exercise supplemental jurisdiction and dismiss plaintiffs' remaining state law claims.

BACKGROUND

On August 18, 2003 plaintiffs William and Eileen McNiff filed their original Complaint. The next day, August 19, 2003, plaintiffs filed an Amended Complaint. Plaintiffs' Amended Complaint contains eighteen counts against the various defendants asserting claims of negligence⁴ and breach of warranty⁵ on behalf of plaintiff William McNiff and loss of consortium⁶ claims on behalf of plaintiff Eileen McNiff.

On October 24, 2003 plaintiffs filed a Notice of Voluntary Dismissal of Defendant Fannie Mae. The dismissal of Fannie Mae related to Counts XVI through XVIII of the Amended Complaint.

On October 28, 2003 the Answer and Affirmative Defenses to Amended Complaint by Defendants Asset Management Specialists, and Asset Management Specialists, Inc., was filed.

FACTS

Based upon the allegations of plaintiffs' Amended Complaint and Exhibit A attached to plaintiffs' response to the motion to dismiss, the operative facts are as follows. At all pertinent times, plaintiff William McNiff was employed by Golden Feather Realty Services, Inc. as an inspector of residential real estate. Golden Feather Real Estate entered into an agreement with one or all of the defendants who were in possession of certain properties to correct, fix and rehabilitate the properties to make them safe and marketable.

On August 20, 2001 William McNiff went to a property located at 449 North 11th street, Reading, Berks County, Pennsylvania to conduct an inspection of the property. While descending a wooden staircase at the front of the premises, Mr. McNiff used the hand railing on his right in order to safely descend the wooden stairway. When Mr. McNiff grasped the hand railing with his right hand, the hand railing came loose, causing Mr. McNiff to lose his balance and fall to the ground and allegedly causing plaintiff's physical injuries.

STANDARD OF REVIEW

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides in pertinent part:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter....

There are two types of challenges to subject matter jurisdiction pursuant to Rule 12(b)(1): (1) to the Complaint on its face; and (2) to the existence of subject matter jurisdiction in fact. Daliessio v. DePuy, Inc., No. Civ.A. 96-5295, 1998 WL 24330 at *2 (E.D.Pa. Jan. 23, 1998).

When a defendant attacks subject matter jurisdiction "in fact," as opposed to an attack on the allegations on the face of the complaint, the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). In such a situation, "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." Id. In addition, the burden of proving the existence of subject matter jurisdiction lies with the plaintiff. Id.

Carpet Group International v. Oriental Rug Importers Association, 227 F.3d 62, 69 (3d Cir.2000).

DISCUSSION

The federal defendants assert three bases for their motion to dismiss. Initially, defendants contend that the United States Department of Housing and Urban Development and United States Department of Housing and Urban Development, Office of Housing are not proper parties in this action because plaintiffs may not bring suit against the specific federal government agencies which are allegedly responsible for plaintiffs' injuries. Rather, the only proper party is the United States of America. Thus, defendants argue that Counts VII through XII must be dismissed on that basis.

Next, the federal defendants contend that the claims against the United States of America contained in Counts XIII through XV must be dismissed because plaintiffs have not filed an administrative claim as required by the Federal Tort Claims Act.⁷

Finally, the federal defendants assert that plaintiff William McNiff's claims for breach of warranty (Counts VIII, XI and XIV) are not contract claims as asserted by plaintiffs in their response to the motion to dismiss. Rather, the federal defendants contend that plaintiffs' claims are actions sounding in tort. In the alternative, defendants allege that even if the court determines that the breach of warranty claims are contract actions, subject matter jurisdiction is still lacking because any contract in this matter is an implied contract in law, as opposed to one implied in fact, and this court lacks subject matter jurisdiction over any such claim.

In their response to the federal defendants' motion to dismiss, plaintiffs by implication admit that defendant United States of America is the proper party in this case. However, plaintiffs assert that the breach of warranty claims contained Counts VIII and XI allege state law claims which are contractual in nature. Thus, plaintiffs contend that these claims are not subject to the limitations of the Federal Tort Claims Act.

Finally, plaintiffs contend that they have complied with the requirement for filing an administrative claim. Specifically, plaintiffs contend that by letter dated June 28, 2002 (Exhibit A to plaintiffs' response) they notified the United States Department of Housing and Urban Development, Office of Housing that William McNiff sustained serious and chronic injuries on August 20, 2001 when he fell because of a dangerous and defective condition of, and on, the real estate located at 449 North 11th Street, Reading, Pennsylvania, a property plaintiff alleges was owned by the United States Department of Housing and Urban Development.

For the reasons expressed below, we agree with the federal defendants, disagree with plaintiffs and dismiss Counts VII through XV of plaintiffs' Amended Complaint.

Suits Against the United States of America and its Agencies

It is well settled that the United States of America, as sovereign, is immune from suit except as it consents to be sued. The terms of its consent to be sued in any court define that court's jurisdiction to entertain that suit. United States of America v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227 (3d Cir.1976).

Sovereign immunity may only be waived to the extent that Congress, by statute, has explicitly consented to waiver of sovereign immunity. United States of America v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). Furthermore, any waiver of sovereign immunity must be strictly construed in favor of the United States. Ardestani v. Immigration and Naturalization Service, 502 U.S. 129, 137, 112 S.Ct. 515, 520, 116 L.Ed.2d 496, 506 (1991).

The Federal Tort Claims Act "is the exclusive waiver of sovereign immunity for actions sounding in tort against the United States, its agencies and/or officers acting within their official capacity." J.D. Pflaumer v. United States Department of Justice, 450 F.Supp. 1125, 1132 n. 11 (E.D.Pa.1978). Pursuant to the Federal Tort Claims Act:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as...