United States District Court, S.D. Florida
Peter T. Ripich, Plaintiff,
United States of America and others, Defendants.
ORDER GRANTING MOTION TO DISMISS
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant United States of
America's Motion to Dismiss (ECF No. 43). Plaintiff Peter
Ripich filed an untimely response (ECF No. 51) and the United
States replied (ECF No. 52). After reviewing the parties'
submissions, the record, and the applicable law, the Court
grants the Defendant's motion
(ECF No. 43).
Amended Complaint alleges that on June 27, 2015, he bought a
2015 Land Rover 4 in Miami, Florida. (ECF No. 29 at ¶
18.) Shortly thereafter, Ripich placed the car for sale with
Miami Mastercar, LLC. (Id. at ¶ 20.) On July I,
2015, Damien Berry purchased the car for $66, 640 using a bad
check. (Id. at ¶ 21.) The Plaintiff never
received the purchase price for the vehicle. Berry then sent
the car to New Jersey to be shipped to China. (Id.
at ¶ 25.) The Plaintiff sued the United States, among
others, because U.S. Customs and Border Patrol allowed the
car to be exported without any evidence of title and while
the vehicle had an outstanding lien upon its title, in
violation of federal regulations. (Id. at ¶
29.) The Plaintiff asserts three causes of action against the
United States: negligence, negligence per se under 19 U.S.C.
§§ 1624, 1627(a), and negligence per se under
Florida law. (ECF No. 29 at 5-8.)
motion to dismiss for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) can be made in one of two ways: a
facial attack or a factual attack.
On a facial attack, a plaintiff is afforded safeguards
similar to those provided in opposing a Rule 12(b)(6) motion
- the court must consider the allegations of the complaint to
be true. But when the attack is factual, ‘the trial
court may proceed as it never could under 12(b)(6) or
Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1)
motion is 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. In short,
no presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990). The attack in this case is factual.
United States moves to dismiss the complaint on the grounds
that this Court lacks subject matter jurisdiction because the
United States is immune from suit. (ECF No. 43.) Under the
doctrine of sovereign immunity, the United States is
generally immune from suit. There are, however, exceptions to
this rule. For example, under the Federal Tort Claims Act,
the United States may be held liable for negligence claims
based on allegations that federal employees failed to perform
duties imposed by federal law. See Scheib v. Florida
Sanitarium and Benev. Ass'n, 759 F.2d 859, 864 (11th
Cir. 1985). This limited waiver of sovereign
immunity is “expressly limited to those instances where
the United States would be liable if a private person under
like circumstances would be liable in accordance with the law
of the place where the act or omission occurred.”
Id. (internal citations and quotations omitted).
Here, the United States argues that the Plaintiff has not
identified a corresponding state law duty and breach thereof
that would impose tort liability if undertaken by a private
person in similar circumstances. (ECF No. 43 at 6.)
Plaintiff responds to the United States' argument by
repeating his position that U.S. Customs and Border Patrol
officials failed to stop the deportation of a vehicle without
proper documentation in violation of federal regulations.
(ECF No. 51 at 5-6.) As an initial matter, the Court notes
that the Plaintiff's response was filed almost two months
after the Defendant's motion. (See ECF No. 51.)
Under Local Rule 7.1(c), “each party opposing a motion
shall serve an opposing memorandum of law no later than
fourteen (14) days after service of the motion. Failure to do
so may be deemed sufficient cause for granting the motion by
default.” Although it is within the Court's
discretion to grant the Defendant's motion by default,
the Court will consider the merits of the parties'
Court agrees with the United States. All three counts
asserted against the United States allege violations of
federal regulations. (ECF No. 29 at 5-8.) The Plaintiff is
unable to put forth an equivalent state law tort that would
waive the United States' sovereign immunity. Instead, the
Plaintiff simply reiterates that the United States
“owed a duty to the Plaintiff and other vehicle owners
to block the exportation of vehicles without proper
documentation [and] United States Customs and Border Patrol
breached that duty. . . .” (ECF No. 51 at 6.) Even
Count IIII, titled “Negligence Per Se - Florida Law,
” alleges that the U.S. Customs and Border Patrol
“owed a duty to the Plaintiff as a result of the
enactment of 19 C.F.R. 192.2(b), which was enacted pursuant
to 19 U.S.C. §§ 1624, 1627(a).” (ECF No. 29
at 8.) Accordingly, the United States is immune from suit and
the Court lacks subject matter jurisdiction over the
on the foregoing, the Court grants the
Defendant's motion to dismiss. (ECF No.
43.) The Clerk is directed to close