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JENSSEN v. USPS

April 23, 1991

DEBORAH K. JENSSEN and HERBERT JENSSEN, Plaintiffs,
v.
UNITED STATES POSTAL SERVICE and LISA DIAMOND, individually, Defendants


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Plaintiffs Deborah K. and Herbert Jenssen filed this action under 28 U.S.C.A. § 1346(a)(2) (Supp. 1990) and 39 U.S.C. § 409 (1988) against Lisa Diamond and the United States Postal Service alleging that Diamond negligently operated a Postal Service vehicle so as to cause personal injury to Deborah Jenssen and property damage to Herbert Jenssen's vehicle. The defendants have now moved to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. *fn1" We grant the motion.

 I. Dismissal Standard

 A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); see also Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as all reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n. 1 (N.D. Ill. 1988) (citing Ellsworth).

 II. Background

 On July 24, 1987, Deborah Jenssen was driving north on Oltendorf Street at or near its intersection with Dorman Street in Streamwood, Illinois. At the same time, Lisa Diamond, a Postal Service employee, was driving a Postal Service vehicle south on Oltendorf. When Diamond reached the Dorman Street intersection she turned left, causing a collision with the 1973 Ford Torino driven by Mrs. Jenssen.

 In July 1989, Mrs. Jenssen filed a "Claim for Damage, Injury, or Death" with the Postal Service for $ 151,000. That figure included $ 150,000 in personal injury to herself and $ 1000 of property damage to the car she was driving, which was owned by Mr. Jenssen. *fn2" On April 30, 1990, the Postal Service issued a final denial of Mrs. Jenssen's claim. The denial explained that if she was "dissatisfied with the final action on her claim, she may file suit against the United States of America in an appropriate United States District Court not later than six months from the date of mailing this letter . . . ." Complaint, Exh. B (emphasis added).

 III. Jurisdiction Under 28 U.S.C.A. § 1346(a)(2) and 39 U.S.C. § 409

 The defendants' motion alleges that this court lacks jurisdiction under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. §§ 1346(b)(1), 2671 (Supp. 1990). While this argument will be important later in this opinion, it is not initially relevant because it is not directed to the statutes upon which the plaintiffs stake their jurisdictional tent. Defendants' failure to make any argument as to why the plaintiffs lack jurisdiction under 28 U.S.C.A. § 1346(a)(2) and 39 U.S.C. § 409 is not fatal to their motion to dismiss. The party seeking to invoke the court's jurisdiction has the burden of showing that jurisdiction is proper. See Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987); Westwood Promotions, Inc. v. United States Postal Serv., 718 F. Supp. 690, 692 (N.D. Ill. 1989); Marks v. Turnage, 680 F. Supp. 1241, 1243 (N.D. Ill. 1988).

 One of the statutes upon which the plaintiffs rely is 39 U.S.C. § 409, "suits by and against the Postal Service." Section 409(a) provides that the "United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service." 39 U.S.C. § 409(a). However, § 409(c) clearly states that the "provisions of title 28 relating to tort claims [the FTCA] shall apply to tort claims arising out of activities of the Postal Service." Id. at § 409(c). This suit is about a traffic accident involving Mrs. Jenssen and Diamond while Diamond was working for the Postal Service. A suit involving a traffic accident is certainly a tort claim. Accordingly, we find that 39 U.S.C. § 409 does not in and of itself allow for the Postal Service to be sued in its own name under the circumstances alleged in the plaintiffs' complaint.

 Plaintiffs' other claimed jurisdictional basis, 28 U.S.C.A. § 1346(a)(2), fails to confer jurisdiction for several reasons, all of which are obvious from the wording of the statute. Section 1346(a)(2) states that:

 
(a) The district courts shall have original jurisdiction, concurrent with the United ...

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