United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
FISH Senior United States District Judge
the court is the motion to dismiss of the defendant United
States of America (“the government”) pursuant to
Fed.R.Civ.P. 12(b)(1) or, alternatively, for summary judgment
(docket entry 10). For the reasons stated below, the motion
February 14, 2015, United States Postal Service
(“USPS”) employee Hien Dinh Le (“Le”)
was involved in a collision with a car driven by the
plaintiff Dell Hester (“Hester”). Brief in
Support of Defendant's Motion to Dismiss or
Alternatively, for Summary Judgment (“Motion”) at
2 (docket entry 11). At the time of the accident, Le was
driving a USPS vehicle within the scope of his employment.
12, 2015, Hester timely submitted an administrative claim to
the USPS. Id. In a letter dated January 26, 2016
sent via certified mail, the USPS formally denied
Hester's claim because the parties could not reach a
mutually satisfactory settlement agreement. Id. at
3; Appendix in Support of Defendant's Brief in Support of
Defendant's Motion to Dismiss (“App'x”)
at 008-009 (docket entry 12). Hester's attorney received
the letter on February 2, 2016. See App'x at
letter read in pertinent part as follows.
In accordance with 28 U.S.C. § 2401(b) and 39 C.F.R.
912.9(a), if dissatisfied with the Postal Service's final
denial of an administrative claim, a claimant may file suit
in a United States District Court no later than six (6)
months after the date the Postal Service mails the
notice of that final action. Accordingly, any suit filed in
regards to this denial must be filed no later than six (6)
months from the date of the mailing of this letter, which is
the date shown above. Further, note the United States of
America is the only proper defendant in a civil action
brought pursuant to the Federal Tort Claims Act and such suit
may be heard only by a federal district court.
Alternatively, and in accordance with the regulations set out
at 39 C.F.R. 912.9(b), prior to the commencement of suit and
prior to the expiration of the six (6) month period provided
in 28 U.S.C. § 2401(b), a claimant, his duly authorized
agent, or legal representative, may file a written request
for reconsideration with the postal official who issued the
final denial of the claim. Upon the timely filing of a
request for reconsideration, the Postal Service shall have
six (6) months from the date of filing in which to make a
disposition of the claim and the claimant's option under
28 U.S.C. § 2675(a) shall not accrue until six (6)
months after the filing of the request for reconsideration.
App'x at 008-009 (emphasis in the original).
USPS never received a request for reconsideration from
Hester. Motion at 4. However, on January 20, 2017, almost one
year after the denial of Hester's administrative claim,
he filed suit against the government and Le in the 116th
Judicial District Court in Dallas County, Texas. Motion at 4;
see also Appendix to Notice of Removal at App'x
0006-0015 (docket entry 3). On May 26, 2017, Le timely
removed this action pursuant to 28 U.S.C. §§
1346(b)(1), 1442, and 2679. Notice of Removal ¶ 2
(docket entry 1). On June 12, 2017, the government moved to
dismiss this action under Fed.R.Civ.P. 12(b)(1) or 56(c)
because Hester failed to file this action within six months
of the denial of his administrative claim by USPS as required
under 28 U.S.C. § 2401(b). See generally
Motion. Hester failed to respond to the motion.
Standard for Rule 12(b)(1) Motion to Dismiss
courts are courts of limited jurisdiction. See Kokkonen
v. Guardian Life Insurance Company of America, 511 U.S.
375, 377 (1994); Owen Equipment and Erection Company v.
Kroger, 437 U.S. 365, 374 (1978). A federal court may
exercise jurisdiction over cases only as expressly provided
by the Constitution and laws of the United States.
See U.S. Const. art. III §§ 1-2; see also
Kokkonen, 511 U.S. at 377. Federal law gives the
federal district courts original jurisdiction over “all
civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
Moreover, a party seeking relief in a federal district court
bears the burden of establishing the subject matter
jurisdiction of that court. United States v. Hays,
515 U.S. 737, 743 (1995); McNutt v. General Motors
Acceptance Corporation of Indiana, Inc., 298 U.S. 178,
189 (1936); Langley v. Jackson State University, 14
F.3d 1070, 1073 (5th Cir.), cert. denied, 513 U.S.
12(b)(1) of the Federal Rules of Civil Procedure authorizes
the dismissal of a case for lack of jurisdiction over the
subject matter. See Fed. R. Civ. P. 12(b)(1). A
motion to dismiss pursuant to Rule 12(b)(1) for lack of
subject matter jurisdiction must be considered by the court
before any other challenge because “the court must find
jurisdiction before determining the validity of a
claim.” Moran v. Kingdom of Saudi Arabia, 27
F.3d 169, 172 (5th Cir. 1994) (internal citation omitted);
see also Ruhrgas AG v. Marathon Oil Company, 526
U.S. 574, 577 (1999) (“The requirement that
jurisdiction be established as a threshold matter . . . is
inflexible and without exception”) (citation and
internal quotation marks omitted). On a Rule 12(b)(1) motion,
which “concerns the court's ‘very power to
hear the case . . . [, ] the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power
to hear the case.'” MDPhysicians &
Associates, Inc. v. State Board of Insurance, 957 F.2d
178, 181 (5th Cir.) (quoting Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S.
897 (1981)), cert. denied, 506 U.S. 861 (1992). In
ruling on a motion to dismiss under Rule 12(b)(1), the court
may rely on: “1) the complaint alone; 2) the complaint
supplemented by undisputed facts; or 3) the complaint
supplemented by undisputed facts and the court's
resolution of disputed facts.” MCG, Inc. v. Great
Western Energy Corporation, 896 F.2d 170, 176 (5th Cir.
1990) (citing Williamson, 645 F.2d at 413). Once