United States District Court, D. North Dakota
ORDER GRANTING DEFENDANT’S MOTION TO
Charles S. Miller, Jr., Magistrate Judge United States
the court is defendant’s “Motion to Dismiss for
Lack of Jurisdiction” filed on May 4, 2016 See
Docket No. 11. Both parties consented to proceed before a
magistrate judge. For the reasons set forth below,
defendants’ motion to dismiss is granted.
FACTUAL AND PROCEDURAL BACKGROUND
William Vinje (“Vinje”) brought this Federal Tort
Claims Act (“FTCA”) suit against the United
States Postal Service (“USPS”) on February 11,
2016. See Docket No. 1. On March 28, 2016, the court
entered an Order substituting the United States of America
(“United States”) as the proper party defendant.
See Docket No. 10. Vinje alleges that on or about
February II, 2014, he was involved in a motor vehicle
accident in the State of North Dakota while he was in the
scope of his employment with the United States Postal
Service. See Docket No. 1. Specifically, Vinje
alleges that he was rear ended by a Mr. Lucas Johnson.
Id. Vinje seeks damages in the amount of $6, 543.05.
Id. Vinje asserts that because he was in the scope
of his employment during the accident, his employer, the
USPS, is liable for the injuries suffered and expenses
incurred by him. Id.
4, 2016, the United States moved for dismissal of this action
because Vinje failed to exhaust his administrative remedies
under the FTCA before bringing this suit. See Docket
No. 11. On May 31, 2016, the court entered an order allowing
Vinje until June 3, 2016 to file a brief in response to
defendant’s motion. See Docket No. 13.
Plaintiff has not filed a response and the time to do so has
STANDARD OF REVIEW
state courts, a federal district court is a court of limited
jurisdiction. Before the court will consider the substantive
issues raised by the parties, the court must first determine
whether it has jurisdiction over an action.
“‘Subject matter jurisdiction defines the
court’s authority to hear a given type of
case.’” Carlsbad Tech., Inc. v. HIF Bio.
Inc., 129 S.Ct. 1862, 1866 (2009) (quoting United
States v. Morton, 467 U.S. 822, 828 (1984)). It
represents “the extent to which a court can rule on the
conduct of persons or the status of things.”
Carlsbad Tech., 129 S.Ct. at 1866 (quoting
Black’s Law Dictionary 870 (8th ed. 2004)).
United States seeks dismissal for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure. See Docket No.11. Jurisdictional
issues, whether they involve questions of law or fact, are
for the court to decide. Mentz v. United States, 359
F.Supp.2d 856, 858 (D.N.D. 2005). Because jurisdiction is a
threshold question, the district court may consider matters
outside the pleadings when subject matter jurisdiction is
challenged under Rule 12(b)(1). Green Acres Enters., Inc.
v. United States, 418 F.3d 852, 856 (8th Cir. 2005);
Mentz, 359 F.Supp.2d at 858 (quoting Harris v.
P.A.M. Transport, Inc., 339 F.3d 635, 637 n.4 (8th Cir.
2003) (quoting Osborn, 918 F.2d at 728 n.4))
(citations omitted). A district court has the authority to
dismiss an action for lack of subject matter jurisdiction on
any one of three separate bases: “(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.” Johnson v. United States, 534
F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Because
“there is no statutory procedure upon an issue of
jurisdiction, the mode of its determination is left to the
trial court.” Id. at 964 (quoting Land v.
Dollar, 330 U.S. 731, 735 n.4 (1947)).
evaluating a 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction, “no presumptive truthfulness
attaches to the plaintiff’s allegations, and the
existence of undisputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.” Mentz, 359 F.Supp.2d
at 858 (quoting Osborn, 918 F.2d at 730). A court
may make credibility determinations and weigh conflicting
evidence in resolving a motion to dismiss under Rule
12(b)(1). See T.L. ex rel. Ingram v. United States,
443 F.3d 956, 961 (8th Cir. 2006); see also Mentz,
359 F.Supp.2d at 858. The party seeking to establish federal
jurisdiction has the burden of proving that jurisdiction does
in fact exist, and “this burden may not be shifted
to” the other party. Great Rivers Habitat Alliance
v. Fed. Emergency Mgmt. Agency, 2010 WL 3168368, 2 (8th
Cir. 2010) (quoting Newhard, Cook & Co. v. Inspired
Life Ctrs, 895 F.2d 1226, 1228 (8th Cir. 1990));
Mentz, 359 F.Supp.2d at 858 (citing Osborn v.
United States, 918 F.2d 724, 729 (8th Cir. 1990)).
Failure to Exhaust Administrative Remedies
well settled that jurisdiction over any suit against the
United States requires a clear statement from the government
waiving sovereign immunity, together with a claim falling
within the terms of the waiver. United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003)
(citations omitted); see generally Hinsley v. Standing
Rock Child Protective Services, 516 F.3d 668, 671-672
(8th Cir. 2008); Riley v. United States, 486 F.3d
1030, 1032 (8th Cir. 2007). In this case, Vinje brings suit
pursuant to the FTCA, which, if applicable, provides the
requisite waiver of sovereign immunity and authorizes suit
against the United States for damages caused by negligent or
wrongful acts committed by its employees within the scope of
their employment. 28 U.S.C. § 1346(b). However, the Act
An action shall not be instituted upon a claim against the
United States for money damages for ... personal injury ...
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.
28 U.S.C. § 2675(a). Furthermore, the FTCA requires that
an administrative tort claim be submitted to the applicable
federal agency within two years after the claim accrues. 28
U.S.C. § 2401(b). The exhaustion of administrative
remedies requirement is an absolute prerequisite to
maintaining an ...