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James v. Bleigh Construction Co.

United States District Court, E.D. Missouri, Eastern Division

December 18, 2019

SHARON JAMES, Plaintiff,
v.
BLEIGH CONSTRUCTION COMPANY, Defendant and Third-Party Plaintiff,
v.
UNITED STATES OF AMERICA Third-Party Defendant

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Third-Party Defendant United States of America's (the “Government”) Motion to Dismiss Third-Party Plaintiff Bleigh Construction Company's (“Bleigh”) complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Doc. 22). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 10). For the following reasons, the motion will be granted, Bleigh's claims against the United States of America will be dismissed, and Plaintiff Sharon James' (“Plaintiff” or “James”) 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.

         I. Background

         On February 24, 2016, Plaintiff Sharon James fell and was injured while walking through a parking lot, which was under construction, located in the Huck Finn Shopping Center in Hannibal, Missouri. Plaintiff alleged that she was walking through the parking lot in order to reach a United States mailbox, which was located within the perimeter of the construction zone. The construction zone was managed by Bleigh Construction Company. Bleigh alleges that prior to the date of Plaintiff's injury, it had contacted the United States Postal Office in Hannibal to request that the mailbox be relocated for the duration of the construction. Bleigh further alleges that a United States Postal Service (“USPS”) employee refused to relocate the mailbox or cause it to be out of service while construction was ongoing.

         James filed a negligence lawsuit against Bleigh in the Circuit Court of Marion County, Missouri, in which she alleged that Bleigh failed to warn her that the property was not reasonably safe and failed to use ordinary care to remove the dangerous conditions on the property. Bleigh subsequently filed a third-party complaint in state court against the Government, arguing that the Government was contributorily negligent in its alleged failure to relocate the mailbox. The Government then removed the action to federal court pursuant to 28 U.S.C. § 1442(a)(1), which states in pertinent part that a civil action against the United States or “any agency thereof or any officer . . . of the United States or of any agency thereof, sued in an individual capacity for any act under color of such office . . .” may be removed to “the district court of the United States for the district and division embracing the place wherein it is pending.”

         In the instant motion, Defendant United States of America moves to dismiss the claim against it for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1) and the doctrine of sovereign immunity.

         I. Legal Standard

         Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action based on lack of subject matter jurisdiction. Dismissal under Rule 12(b)(1) is appropriate when subject matter jurisdiction is successfully challenged on the face of the complaint or on the facts. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). Because a Rule 12(b)(1) motion addresses “the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). 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)). A distinction, “often overlooked, [exists] 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.” Walls v. Bd. of Regents of Se. Mo. State Univ., No. 1:09 CV 35 RWS, 2009 WL 2170176, at *1, (E.D. Mo. July 20, 2009), (emphasis added) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). “In the first instance, 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).” Osborn, 918 F.2d at 729. Under a factual attack, however, “no presumptive truthfulness attaches to the plaintiff's allegations, ” and the non-moving party does not have the benefit of Rule 12(b)(6) safeguards. Id. at 730. Considering evidence beyond the complaint does not convert a Rule 12(b)(1) motion to a Rule 56 motion for summary judgment. Id. at 729. As the parties have attached and referenced materials which are outside of the pleadings, the Court will treat Defendant's motion as a factual attack.

         To 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).

         II. Discussion

         A. Defendant United States' Motion to Dismiss the Claim Against It

         In the instant motion, Defendant United States argues that this Court lacks subject matter jurisdiction over it under the doctrine of sovereign immunity. More specifically, Defendant United States argues that the Federal Tort Claims Act's discretionary function exception applies to Bleigh's claim against the United States.

         Under the doctrine of sovereign immunity, the United States and its agencies are immune from suit unless sovereign immunity has been waived. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). “Sovereign immunity is jurisdictional in nature.” Id. “‘Congress waived the sovereign immunity of the United States by enacting the [Federal Tort Claims Act], under which the federal government is liable for certain torts its agents commit in the course of their employment.” Riley v. United States, 486 F.3d 1030, 1032 (8th Cir. 2007) (quoting C.R.S. by D.B.S. v. United States, 11 F.3d 791, 795 (8th Cir. 1993); 28 U.S.C. § 2674; & 28 U.S.C. § 1346(b)). See also Croyle v. United States, 908 F.3d 377, 381 (8th Cir. 2018) (“The FTCA waives the Government's sovereign immunity for some tort claims, authorizing private suits for negligence of Government agents.”). Under the FTCA, "[t]he United States [is] liable . . . in the same manner and to the same extent as a private individual under like circumstances, but [is not] liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. See also 28 U.S.C. § 1346(b)(1) (“Subject to the provisions of chapter 171 of this title, the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”).

         The waiver of sovereign immunity provided in the FTCA is subject to several exceptions. Croyle, 908 F.3d at 381. Defendant United States contends that the “discretionary function exception” described in 28 U.S.C. § 2680(a) applies to Bleigh's claim against it in this case, such that sovereign immunity has not ...


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