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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_______________________________ 

:

DAMIAN MEJIA PONCEANO, :

:

Plaintiff, : Civil Action No. 11-01305 (JAP)

:

v. : OPINION

:

THE UNITED STATES :

POSTAL SERVICE, et al., :

: 

:

Defendants. :

 :

PISANO, District Judge.

This is an action brought by Damian Mejia Ponceano ("Plaintiff") against the United 

States Postal Service (the "Postal Service") and James J. Quaranta ("Quaranta"). Presently 

before the Court is a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal 

Rule of Civil Procedure 12(b)(1) by the Postal Service and Quaranta (together, "Defendants"). 

Plaintiff opposes the motion. The Court decides the matter without oral argument pursuant to 

Federal Rule of Civil Procedure 78. The Court has carefully considered the submissions of the 

parties and, for the reasons below, Defendants' motion to dismiss is granted.

I. Factual and Procedural History

On December 24, 2009, Plaintiff was involved in a car accident with a Postal Service 

vehicle driven by Quaranta. Plaintiff claims that he spoke with various Postal Service employees 

about the accident and about the status of his claim for damages on several occasions following 

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the accident, both in person and on the telephone. Plaintiff has not filed an administrative claim 

in writing with the Postal Service. Plaintiff filed this action on February 18, 2011, in New Jersey 

Superior Court, Small Claims Division, seeking a judgment of $2,723.23 for property damage. 

Defendants removed this matter to this Court on March 8, 2011, and filed a Certificate of Scope 

certifying that Quaranta was acting in the scope of his employment at the time of the accident. 

Defendants then filed the instant motion asking the Court to dismiss this action based on lack of 

subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). 

II. Legal Standard

A party may assert a jurisdictional challenge to a claim filed in district court under Rule 

12(b)(1) by attacking the complaint on its face or by making a factual challenge separate from 

any pleading. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). 

In considering a facial challenge to subject matter jurisdiction, the Court may consider only the 

allegations contained in the complaint and must do so in the light most favorable to the plaintiff. 

Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). A factual challenge to 

subject matter jurisdiction under Rule 12(b)(1) attacks "the existence of subject matter 

jurisdiction in fact, quite apart from any pleadings." Mortensen, 549 F.2d at 891. When

considering such a challenge, the Court need not attach "presumptive truthfulness" to the 

allegations of the non-moving party, and "the existence of disputed material facts will not 

preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. In 

adjudicating a factual 12(b)(1) challenge, a court may consider affidavits, depositions, and 

testimony to resolve factual issues, and weigh the evidence to satisfy itself as to the existence of 

its power to hear the case. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438 (D.N.J. 1999)

(citing Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997)). 

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III. Legal Discussion

The general rule is that the United States and its agencies are protected from lawsuits by 

sovereign immunity. Loeffler v. Frank, 486 U.S. 549, 554, 108 S.Ct. 1965, 1968, 100 L.Ed.2d 

549 (1988); Federal Housing Administration v. Burr, 309 U.S. 242, 244, 60 S.Ct. 488, 490, 84 

L.Ed. 724 (1940). However, the Federal Tort Claims Act (the "FTCA") waives sovereign 

immunity and grants district courts jurisdiction over certain claims against the United States, 

including those for money damages for negligence. See 28. U.S.C. §§ 1346(b), 2674. The

United States can be held liable "for injury or loss of property ... 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." 28 U.S.C.A. § 1346(b)(1). 

Defendants argue that this Court lacks subject matter jurisdiction over Plaintiff's

complaint because he failed to file an administrative claim with the Postal Service prior to 

bringing this action in federal court. Pursuant to the FTCA, the United States may only be sued 

after a claimant has presented his administrative claim to the relevant federal agency and that

agency has had the opportunity to make a final determination on such claim. 28 U.S.C. §

2675(a); Lightfoot v. United States, 564 F.3d 625, 626 - 627 (3d Cir. 2009). The Third Circuit 

requires that the administrative claim be presented to the applicable federal agency by submitting 

a "written notification of an incident accompanied by a claim for money damages in a sum 

certain for injury." Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971). This 

requirement is "jurisdictional and cannot be waived." Id. Plaintiff asserts that he spoke with 

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various postal employees on several occasions about the accident and the status of his claim. 

However, Plaintiff has failed to submit an administrative claim in writing to the Postal Service. 

Therefore, the Court is constrained to grant Defendants' motion to dismiss for lack of subject 

matter jurisdiction. 

The Court notes that, pursuant to the FTCA, a claimant has two years to submit a written 

claim to the Postal Service from the date of the incident. 28 U.S.C. § 2401(b). Therefore, 

Plaintiff has until December of 2011 to submit his written administrative claim with the Postal 

Service. The Court also notes that Defendants have provided Plaintiff with a form he may use to 

submit his written administrative claim and the address to which he should send the complete 

form. 

IV. Conclusion

For the reasons set forth above, Defendants' motion to dismiss is granted. An appropriate 

Order accompanies this Opinion.

/s/ JOEL A. PISANO 

United States District Judge

Dated: June 22, 2011

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