United States District Court, D. Minnesota
Dean Benter, General Delivery, Bemidji, MN 56601-9999, pro se.
Ann M. Bildtsen, United States Attorney's Office, Minneapolis, MN.
REPORT AND RECOMMENDATION
HILDY BOWBEER, Magistrate Judge.
This matter is before the Court on Defendants' Motion to Dismiss [Doc. No. 3]. The case has been referred to this Court pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1 for the issuance of a Report and Recommendation. For the reasons set forth below, the Court recommends that the motion be granted and the case be dismissed, without prejudice, for lack of subject matter jurisdiction.
Plaintiff Dean Benter initiated this action against Defendants U.S. Social Security Administration Field Office-Bemidji and U.S. Social Security Field Office-Rochester in the Conciliation Court for the Ninth Judicial District, Beltrami County, Minnesota, on March 5, 2014. (Notice of Removal ¶¶ 1, 2 & Ex. A at 1 (Statement of Claim and Summons, Benter v. Social Security of Bemidji, Case No. 04-CO-14-47 (Minn. Conciliation Court) [Doc. No. 1].) Plaintiff alleged that Defendants reduced and ceased his Supplemental Security Income ("SSI") payments without giving him adequate prior notice. ( Id. Ex. A at 1.) Plaintiff further alleged that Defendants' representatives harassed him by calling him repeatedly on the telephone, abruptly terminating telephone calls, and chasing him out of a Social Security Administration ("SSA") building. ( Id. ) Plaintiff asked for monetary relief in the amount of $5, 000.00. ( Id. )
The Acting Commissioner of Social Security, Carolyn W. Colvin, ("Commissioner") removed the action to the United States District Court for the District of Minnesota on April 10, 2014. (Notice of Removal ¶ 4.) The basis for removal was that the action was commenced in state court against an agency of the United States. ( Id. ¶ 5); see 28 U.S.C. § 1442(a)(1).
On April 10, 2014, the Commissioner sent the Notice of Removal to Plaintiff at his last known address: a general delivery address at the Bemidji, Minnesota, post office. (Notice of Removal ¶ 8; Notice of Filing of Notice of Removal [Doc. No. 1-2].) This was the only valid address the SSA had on file for Plaintiff, and before commencing suit, Plaintiff received all his SSA mail there. (Notice of Removal ¶ 8.)
On April 17, 2014, Defendants filed a motion to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants argue that (1) judicial review is not available because there has been no final decision by the Commissioner; (2) Plaintiff's challenge to the reduction and suspension of his SSI payments is moot because the payments were resumed and his benefits are now paid in full; and (3) sovereign immunity bars Plaintiff's harassment claim.
The Court issued an Order the following day, instructing Plaintiff to file a response to the motion to dismiss by May 16, 2014. [Order at 1, Apr. 18, 2014 [Doc. No. 8].) The Order was mailed to Plaintiff at his general delivery address in Bemidji and, according to the Court's docket, was not returned as undeliverable. Nonetheless, Plaintiff did not respond to the motion, and has not made an appearance in the case since he filed the suit in conciliation court. In Defendants' reply memorandum filed on May 30, 2014 [Doc. No. 9], Defendants note that their attempt to serve the motion to dismiss on Plaintiff by mail was unsuccessful, and attempts to locate him have failed. The Court's most recent communication mailed to Plaintiff at the general delivery address in Bemidji-a Notice of Reassignment sent on August 6, 2014-was returned as undeliverable. [ See Doc. No. 12.]
Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a court's subject matter jurisdiction by motion. The party asserting jurisdiction bears the burden to establish it. See VS Ltd. P'ship v. Dep't of Housing & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). Jurisdiction is a threshold issue, and "judicial economy demands that the issue be decided at the outset" of the case. Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990).
A party may raise a facial attack or a factual attack on subject matter jurisdiction. Id. at 729 n.6. Defendants raise a factual attack here. When presented with a motion raising a factual challenge to subject matter jurisdiction, the Court may consider matters outside the pleadings. Id. at 728 n.4. Because the Court's "very power to hear the case" is at issue, the Court "is free to weigh the evidence and satisfy itself as to the existence of its power." Id. at 730 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Accordingly, "no presumptive truthfulness attaches to the plaintiff's allegations, and the existence ...