Opinion
1:22-CV-00188-SPB
07-06-2023
KERRY L. SWITZER JR., Plaintiff v. THE UNITED STATES OF AMERICA, Defendant
REPORT AND RECOMMENDATION ON DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS IN RE: ECF NO. 36
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Defendant's Motion to Dismiss Plaintiffs Complaint is before the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). For the reasons discussed herein, it is respectfully recommended that the motion to dismiss be GRANTED.
II. Factual and Procedural Background
Kerry L. Switzer, Jr. (“Switzer”) commenced this action against the United States Postal Service (“USPS”) claiming that unspecified USPS officials had engaged in “obstruction of justice” in violation of 18 U.S.C. §§ 75, 371, and 372 and a conspiracy in violation of 18 U.S.C. §§ 1028, and 1344. See ECF No. 15, p. 3. The allegations of Switzer's Complaint upon which he bases these claims are vague and difficult to decipher. The Complaint refers to “federal post office, stolen bank cards, from Switzerland and Greendot, internal police conduct and standards reports sent certified by mail and to Erie unemployment office” and demands damages in the amount of $300,000.00 for his stolen mail. Id., p. 4. Following service of the Complaint, the Court granted Defendant's motion to substitute the United States of America (“the Government”) in place of the USPS.
The Government then moved to dismiss the Complaint under both Fed.R.Civ.P. 12(b)(1), arguing that this Court lacks subject-matter jurisdiction over Switzer's claims and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See ECF No. 36. Switzer was directed to respond to the motion by March 6,2023. ECF No. 38. When no response was received by that deadline, Switzer was ordered to show cause by June 9, 2023, for his failure to file a response. ECF No. 39. He was warned that his failure to comply may result in this matter being dismissed for a failure to prosecute. Id. On June 16, 2023, Switzer filed a response to the show cause order in which he stated only that: “Due to the contradicting judicial orders made by Susan Baxter and Lanzillo, on the subject of this pro se lawsuit and the theft of mail in attempts to file motions etc., any and all further matters will be held by a group of lawyers in an alternative courtroom, including any and all lawsuits previous or pending per their motions and filings.” ECF No. 40. Switzer does not identify the “group of lawyers” or the alternative forum where the “further matters” are to be litigated. See id.
While the Government has properly challenged the Court's subject matter jurisdiction by motion pursuant to Rule 12(b)(1), even in the absence of such a challenge, the Court has an obligation to examine its own jurisdiction and address questions of subject matter jurisdiction sua sponte. See Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir. 2003). See also Fed. R. Civ. Pro. 12(h)(3).
The Government's motion is ripe for disposition.
III. Standards of Decision
A. Rule 12(b)(1) Motions
“At issue in a Rule 12(b)(1) motion is the court's ‘very power to hear the case.'” Judkins v. HT Window Fashions Corp., 514 F.Supp.2d 753, 759 (W.D. Pa. 2007) (quoting Mortensen v. First Fed. Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). As the party invoking the jurisdiction of the court, a plaintiff bears the burden of showing that her claims are properly before the court. Brown v. Tucci, 960 F.Supp.2d 544, 561-62 (W.D. Pa. 2013) (citing Dev. Fin. Corp. v. Alpha Hous. & Health Care, 54 F.3d 156,158 (3d Cir. 1995)). A Rule 12(b)(1) challenge can be either to the face of the complaint or to the facts upon which the invocation of subject matter jurisdiction is based. Petruska v. Gannon Univ., 462 F.3d 294, 302, n.3 (3d Cir. 2006). In reviewing a Rule 12(b)(1) motion, a court must determine whether it is asserting a facial attack or a factual attack. Id. A facial attack challenges jurisdiction based on the sufficiency of the plaintiffs pleading. When considering a facial attack, a court must accept the allegations contained in the plaintiffs complaint as true. Id. In contrast, where the motion presents a factual attack on the court's jurisdiction, the court does not attach a presumption of truthfulness to the plaintiffs allegations and may decide whether it has jurisdiction over the plaintiffs claims despite the existence of disputed material facts. Mortensen, 549 F.2d at 891. On a factual attack, the plaintiff bears “the burden of proof that jurisdiction does in fact exist.” Id. See also Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska, 462 F.3d at 302 n.3).
B. Motions Pursuant to Rule 12(b)(6)
The Government has also moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Switzer's Complaint for failure to state a claim. See ECF No. 37, p. 12. A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176,183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). A complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and view them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See Cal. Pub. Emp. Ret. Sys. v. Chubb Corp., 394 F.3d 126,143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286)). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Burtch v. Milb erg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. See also Bond, 2019 WL 1493698, at *3-1.
Because Switzer proceeds pro se, his Complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Bond v. State Farm Ins. Co., 2019 WL 1493698, at *2 (W.D. Pa. Apr. 4, 2019) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (other citations omitted)). This liberal construction of pro se complaints does not, however, absolve a pro se plaintiff of the need to adhere to the Federal Rules of Civil Procedure. See, e.g., Fantone v. Latini, 780 F.3d 184,193 (3d Cir. 2015) (“a pro se complaint... must be held to Tess stringent standards than formal pleadings drafted by lawyers;' ... but we nonetheless review the pleading to ensure that it has ‘sufficient factual matter; accepted as true; to state a claim to relief that is plausible on [its] face.' ”); Badger v. City of Phila. Office of Prop. Assessment, 563 Fed.Appx. 152, 154 (3d Cir. 2014) (“Complaints filed pro se are construed liberally, but even a pro se complaint must state a plausible claim for relief.”).
IV. Discussion and Analysis
A. This action is subject to dismissal based on Switzer's failure to prosecute.
Before turning to the merits of the Government's motion, the Court will address conduct by Switzer that raises questions about his intention to prosecute this action. Switzer simply ignored the Court's original Order to file a response to the Government's motion. In his response to the Court's subsequent show cause Order, Switzer again opted not to address the Government's arguments but instead stated that “all further matters,” including “theft of mail,” will be handled by “a group of lawyers in an alternate courtroom.” See ECF No. 40, p. 1. Switzer's belated and non-substantive response can reasonably be read to express his intention to abandon his claims before this Court and pursue them in a different forum. By repeatedly declining to file a response addressing the arguments asserted in the Government's motion as ordered by the Court, Switzer has failed to prosecute his action. See, e.g, Adams v. Dep't Corr., 2023 WL 3740706, at *2 (W.D. Pa. May 31,2023) (plaintiffs failure to file a response to defendant's motion to dismiss informed a dismissal for failure to prosecute). Switzer's latest filing provides no indication that he intends to respond substantively to the Government's motion and indicates that he no longer wishes to advance his claims before this Court. Based on this, the Court may sua sponte dismiss this case for failure to prosecute. See Shipman v. Delaware, 381 Fed.Appx. 162, 164 (3d Cir. 2010) (citing Link v. Wabash R.R. Co., 310 U.S. 626, 630-31 (1962)).
Although Switzer's statements can be interpreted as abandoning his case, a dismissal for failure to prosecute is still considered a sanction subject to the six-factor balancing test set forth by the Court of Appeals for the Third Circuit in Poults v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). The six factors are: “(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party ... was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim.” Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). Not all of these factors must be satisfied in order to justify dismissal, Ware v. Rodale Press, Inc., 322 F.3d 218,221 (3d Cir. 2003), and no single factor is determinative, see Hicks v. Feeney, 850 F.2d 152,156 (3d Cir. 1988). The Court of Appeals has cautioned, however, that a dismissal in such circumstances is appropriate only in limited circumstances and that doubts should be resolved in favor of reaching a decision on the merits. Dickens v. Danberg, 700 Fed.Appx. 116,117-18 (3d Cir. June 28, 2017) (citing Emerson v. Thiel Coll., 296 F.3d 184,190 (3d Cir. 2002)).
Here, a balancing of the Poulis factors favors dismissal. First, the responsibility for Switzer's failure to participate in this litigation (by neglecting to file a response in opposition to the motion to dismiss) falls on him, as he proceeds pro se. See, e.g, Briscoe v. Klaus, 538 F.3d 252, 258-59 (3d Cir. 2008) (“[I]t is logical to hold a pro se plaintiff personally responsible for delays in his case because a pro se plaintiff is solely responsible for the progress of his case ....”). Thus, the first factor favors dismissal. The second factor, prejudice to the defendants, favors dismissal as well, given that Switzer's failure to meet scheduling orders and to timely respond to motions frustrated the Government's ability to prepare a defense. See, e.g., Ware v. Rodale Press Inc., 322 F.3d 218, 222 (3d Cir. 2003). Third, Switzer has a history of dilatoriness, as demonstrated by his failure to respond to the Government's motion coupled with his non-responsive filing after the issuance of a show cause order approximately six months after the filing of the motion to dismiss. Fourth, Switzer's failure to prosecute this matter was willful because only he can prosecute this case. See, e.g., Dickens, 700 Fed.Appx. at 118. The fifth factor also favors dismissal. Inasmuch as Switzer is proceeding pro se, monetary sanctions do not provide an alternative to dismissal. Finally, the vague and confused nature of Switzer's allegations make it difficult to evaluate the potential merit of his claim but, as discussed below, multiple grounds for dismissal as a matter of law are apparent on the face of the Complaint.
Thus, application of the Poulis factors warrants dismissal of Switzer's claims pursuant to Fed.R.Civ.P. 41(b). The basis for dismissal is even stronger when Switzer's statements in his Response to the show cause order are considered. Despite this, the Court will examine and address each of the substantive grounds for dismissal raised in the Government's motion. Each provides an alternative ground for dismissal of this action
B. The Government is immune from Switzer's claims.
The Government first argues that this case should be dismissed under Rule 12(b)(1) because it is protected by sovereign immunity. See ECF No. 37, p. 5. Because this argument is based on the pleadings, it is a facial attack on the Court's jurisdiction. See, e.g, DeMolick v. United States, 2023 WL 3562979, at *2 n.9 (3d Cir. May 19,2023) (a facial attack on jurisdiction is based solely on the allegations in the complaint) (citations omitted). Accordingly, the Court “must consider the allegations of the complaint as true,” similar to a Rule 12(b)(6) motion to dismiss. See Petruska, 462 F.3d at 302.
The Government's sovereign immunity challenge in this case begins with the proposition that a suit against the USPS is a suit against the United States. See Jackson v. Southeastern Penna., Transp. Auth., 727 F.Supp. 965, 968 (E.D. Pa. 1998) (holding that in suit against the USPS, plaintiffs only remedy is a suit against the United States). Indeed, the Court previously granted the defense motion to substitute the Government for the USPS. It is well established that the federal government is protected by sovereign immunity absent an explicit waiver. See Fed. Aviation Admin., v. Cooper, 566 U.S. 284,290 (2012); United States v. Mitchell, 463 U.S. 206, 212 (1983) (holding that the federal government “may not be sued without its consent,” as “the existence of consent... is a prerequisite for jurisdiction”). Moreover, the federal government “waives only so much of its sovereign immunity as it has chosen to waive in clear and express language.” FMC Corp. v. United States Dep't of Commerce, 29 F.3d 833, 846 (3d Cir. 1994) (citing United States v. Testan, 424 U.S. 392, 399 (1976)). Switzer named the USPS as the sole defendant in this case, and the Government has properly been substituted for it. As both are absolutely immune from suit, this matter should be dismissed absent a waiver. See, e.g., Dolan v. United States Postal Serv., 546 U.S. 481, 485 (2006); United States Postal Serv. v. Flamingo Indus., 540 U.S. 736, 744 (2004); Juste v. United States Postal Servs., 2023 WL 2599229, at *1 (USPS is absolutely immune from suit).
Switzer's claim may only proceed if he meets his burden of proving that “sovereign immunity has been clearly, expressly, and unambiguously waived.” See Washington v. DeJoy, 2022 WL 16553378, at *7 (E.D. Pa. Oct. 31, 2022) (citing Dickson v. U.S. Postal Serv., 2010 WL 4614561, at *2-3 (W.D. Pa. Nov. 5, 2010)). He has not met his burden. Tort actions against USPS are subject to the provisions of the Federal Tort Claims Act (“FTCA”). See 39 U.S.C. § 409(c); 39 U.S.C. § 401(1); see also Loeffler v. Frank, 486 U.S. 549, 555-56 (1988). The FTCA preserves sovereign immunity against claims-like those alleged here-“arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b); see also Hooker v. U.S. Post Office, 255 Fed.Appx. 658 (2007) (customer's allegations that the USPS negligently allowed his mail to be forwarded to the wrong address fell squarely within the postal exception to the FTCA); Washington v. DeJoy, 2022 WL 16553378, at *7 (E.D. Pa. Oct. 31, 2022). The USPS also has not waived immunity for claims of “stolen” mail. See, e.g., Levasseur v. U.S. Postal Serv., 543 F.3d 23, 24 (1st Cir. 2008); Adams v. Security Jewelers, Inc., 2022 WL 16578441, at *2 (D. Minn. Nov. 1,2022) (claim that USPS stole package is barred by sovereign immunity); Watkins v. United States, 2003 WL 1906186 (N.D. Ill. Apr. 17,2023). Thus, to the extent Switzer's complaint alleges that the USPS committed an intentional tort of stealing his “bank cards,” the Government retains its sovereign immunity. The Government's motion to dismiss therefore should be granted based on sovereign immunity.
C. Switzer's Complaint is subject to dismissal because he failed to exhaust his administrative remedies under the Federal Tort Claims Act.
The Government has included with their motion the declaration of Kimberly A. Herbst, Manager of the USPS' Tort Program Adjudication Office, claiming that Switzer has not complied with the exhaustion requirements of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80. Thus, the motion can also be considered as raising an alternative factual attack on this Court's subject matter jurisdiction. See Int'l Ass 'n of Machinists &Aerospace Workers v. N.W. Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1983) (“[Defendant's] motion was supported by a sworn statement of facts. It therefore must be construed as a factual, rather than a facial attack on the court's subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).”). The Court may therefore “inquire by affidavits or otherwise into the facts as they exist.” Goodwin v. Miller, 2019 WL 1416885, at *4 (W.D. Pa. Mar. 29, 2019) (quoting Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)). Put another way, in reviewing a factual attack on subject matter jurisdiction, the Court “is free to weigh the evidence and satisfy itself of its power to hear the case.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (cleaned up).
Before a plaintiff can sue under the FTC A, he must exhaust administrative remedies by filing a claim with the governmental agency responsible for the alleged tort; here, the USPS. See Lauzara v. Directorate of Whistleblower Prot. Programs (OSHA), 2023 WL 3646683, at *8 (W.D. Pa. Mar. 21, 2023). Such administrative exhaustion is an absolute requirement under the FTCA. See McNeil v. United States, 508 U.S. 106,113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies. Because petitioner failed to heed that clear statutory command, the District Court properly dismissed his suit.”). In her declaration, Herbst states there is no record of any claim made by or on behalf of Kerry L. Switzer. ECF No. 37-1, p. 3. Switzer has not presented any evidence that he filed an appropriate administrative claim against the USPS prior to initiating this action or otherwise contested the substance of Herbst's declaration. Given this failure, the defense of failure to exhaust administrative remedies provides an additional alternative ground for dismissal of this action.
D. Switzer's Complaint also fails to allege facts to state a claim.
Finally, Switzer's Complaint is also subject to dismissal pursuant to Fed.R.Civ.P. 12(b)(6) based on its failure to allege facts to support any cause of action. Switzer's Complaint vaguely alleges the theft of unspecified bank cards “from Switzerland and Greendot,” apparently involving unidentified police officers and federal officials, and invokes various federal statutes. See, e.g, ECF No. 15, pp. 3-4. These allegations are insufficient to state a claim. See Ashcroft, 556 U.S. at 678. Although Fed.R.Civ.P. 8 does not require detailed factual allegations, it does mandate “more than unadorned, the-defendant-unlawfully-harmed-me accusation.” Here, Switzer's Complaint merely “tenders ‘naked assertions' devoid of ‘further factual enhancement,”' which the Supreme Court has held inadequate to state a claim. Id. (quoting Twombly, 550 U.S. at 555-57).
V. Conclusion
For the foregoing reasons, it is respectfully recommended that the Government's motion to dismiss (ECF No 36) be granted.
VI. Notice to Parties Concerning Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72((b)(2), and Local Rule 72(D)(2), the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72(D)(2).