United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENS AH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant United States of
America's Motion to Dismiss. (Doc. 20). All parties who
have been served have consented to the jurisdiction of the
undersigned magistrate judge pursuant to 28 U.S.C. §
636(c). For the following reasons, the motion will
be granted, Plaintiff's claims against the United States
of America will be dismissed, and Plaintiff's remaining
state-law claims will be remanded to state court pursuant to
28 U.S.C. § 1367(c)(3) because the Court declines to
exercise supplemental jurisdiction over those claims.
action was originally filed in the Circuit Court of St.
Charles County, Missouri, by Plaintiff Eric Hoofman. The
defendants named in the First Amended Petition are Country
Club Place LLC; Country Place, LLC; Highway 94 Apartment
Management, LLC (collectively, the “Apartment
Defendants”); Jose Steers, an employee of the Apartment
Defendants; and the United States of America. The case was
removed to this Court on December 10, 2018, pursuant to 28
U.S.C. § 1442(a), based on the presence of the United
States as a defendant. (Doc. 1-3).
First Amended Petition, Plaintiff Eric Hoofman alleges the
following. The Country Club Place Apartments (the
“Apartments”) consist of 40 or more multi-unit
buildings set on 40 acres of land in St. Charles. At the
times relevant to this lawsuit, Plaintiff rented a unit in
the Apartments (“Plaintiff's Unit”), located
on Cherry Hills Lane. Defendant Country Club Place, LLC and
Defendant Country Place, LLC own and/or operate the
Apartments. Defendant Highway 94 Apartment Management, LLC
manages the Apartments, including the grounds and roads
therein. In order to get to Plaintiff's Unit, one would
travel from Burning Tree Lane to Pleasant Valley Drive to
Cherry Hills Lane.
mailbox is located just off of Pleasant Valley Drive, in an
area containing mailboxes for more than 250 individual units
at the Apartments (the “Pleasant Valley
Mailboxes.”). Prior to 2015, individual mailboxes at
the Apartments were located in breezeways within each
individual building at the Apartments. In 2015, the mailboxes
were moved to their Pleasant Valley location, either through
a decision of the United States or a decision of the
Apartment Defendants. There are no sidewalks on either Cherry
Hills Lane or Pleasant Valley Drive. The public can freely
travel on Pleasant Valley Drive, and there are no signs
warning or mentioning that the road is shared with
pedestrians. In order to get to Plaintiff's mailbox on
foot, Plaintiff must walk in the street.
about January 21, 2016, Plaintiff left his apartment to get
his mail. There was snow on the grass, but the roads were
clear. While walking to retrieve his mail, Plaintiff was
struck by a vehicle driven by Jose Steers on Pleasant Valley
Drive. Plaintiff was seriously injured in the accident.
Defendant Steers fled the scene and was eventually arrested
by the police.
alleges that Defendants were responsible for selecting a safe
location for the mailboxes but chose to move the mailboxes to
an unsafe location. Plaintiff alleges that Defendants knew
that the new location increased the risk that a pedestrian
could be struck by a vehicle. Plaintiff also alleges that
that Defendants were responsible for constructing a sidewalk
on Pleasant Valley Drive but chose not to do so.
asserts four claims. In Count I, Plaintiff asserts a
negligence claim against the Apartment Defendants and the
United States, based on these Defendants' failing to
construct a sidewalk on Pleasant Valley Drive; failing to
provide a safe route for Plaintiff to get his mail; failing
to place Plaintiff's mailbox and the Pleasant Valley
Mailboxes in a safe location; moving Plaintiff's mailbox
to an unsafe location; failing to maintain a safe roadway;
and failing to update their facilities to provide safe means
of traveling by foot in the Apartments. In Count II,
Plaintiff asserts a premises liability claim against the
Apartment Defendants and the United States. Plaintiff alleges
that the Apartment Defendants owned the Apartments and
maintained the property, roads, and mailboxes in the
Apartment. In the alternative, Plaintiff alleges that
Defendant United States maintained the location of the
mailboxes and selected their location. Plaintiff further
alleges that due to the lack of a sidewalk or safe route to
the mailboxes, the property was not reasonably safe. In Count
III, Plaintiff asserts a negligence claim against the
Apartment Defendants and Jose Steers, alleging that Defendant
Steers was acting in the course and scope of his employment
and was negligent in his driving. In Count IV,  Plaintiff asserts
a negligent hiring and retention claim against the Apartment
Defendants based on their hiring and retention of Defendant
instant motion, Defendant United States of America moves to
dismiss the claims against it for lack of subject matter
jurisdiction, pursuant to Federal Rule of Civil Procedure
12(b)(1) and the doctrine of sovereign immunity.
Federal Rule of Civil Procedure 12(b)(1), a party may move to
dismiss an action based on lack of subject matter
jurisdiction. The Eighth Circuit has held that “[i]n
deciding a motion under Rule 12(b)(1), the district court
must distinguish between a facial attack-where it looks only
to the face of the pleadings-and a factual attack-where it
may consider matters outside the pleadings.” Croyle
v. United States, 908 F.3d 377, 380 (8th Cir. 2018)
(citing Osborn v. United States, 918 F.2d 724, 729
n. 6 (8th Cir. 1990)). See also Moss v. United
States, 895 F.3d 1091, 1097 (8th Cir. 2018); Titus
v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); C.S.
ex rel. Scott v. Mo. State Bd. of Educ., 656 F.Supp.2d
1007, 1011 (E.D. Mo. 2009). Here, Defendant United
States' motion is based entirely on the face of the
pleadings, so the Court construes it as a facial challenge.
In evaluating a facial challenge, “the court restricts
itself to the face of the pleadings and the non-moving party
receives the same protections as it would defending against a
motion brought under Rule 12(b)(6).” Branson Label,
Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th
Cir. 2015) (quoting Osborn, 918 F.2d at 729 n. 6).
The court must accept as true all of the factual allegations
in the complaint, but it need not accept legal conclusions.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
survive a motion to dismiss for lack of subject matter
jurisdiction, the party asserting jurisdiction has the burden
of establishing that subject matter jurisdiction exists.
V S Ltd. P'ship v. Dep't of Hous. & Urban
Dev., 235 F.3d 1109, 1112 (8th Cir. 2000).