Filed: Aug. 16, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 8-16-2005 Zschiegner v. USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-3385 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Zschiegner v. USA" (2005). 2005 Decisions. Paper 695. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/695 This decision is brought to you for free and open access by the Opinions of the Unite
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 8-16-2005 Zschiegner v. USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-3385 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Zschiegner v. USA" (2005). 2005 Decisions. Paper 695. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/695 This decision is brought to you for free and open access by the Opinions of the United..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-16-2005
Zschiegner v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3385
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Zschiegner v. USA" (2005). 2005 Decisions. Paper 695.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/695
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3385
________________
HERBERT ZSCHIEGNER,
Appellant
v.
UNITED STATES OF AMERICA; STAN MCDONALD;
GUARDIAN ENVIRONMENTAL
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 03-cv-00989)
District Judge: Mary L. Cooper
__________________________
Submitted Under Third Circuit LAR 34.1(a)
February 22, 2005
Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES
(Filed August 16, 2005 )
_________________
OPINION
_________________
PER CURIAM
Appellant, Herbert Zschiegner, appeals from the District Court’s order granting
appellee’s motion to dismiss his amended complaint. Zschiegner filed an amended
complaint in the United States District Court for the District of New Jersey seeking
compensatory damages against the United States of America (“United States”) for its
alleged misrepresentation to the Canadian courts “of the substantive and procedural laws
of the United States” during an execution action against his property. The United States
filed a motion to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(1) for
lack of subject matter jurisdiction. After concluding that the government’s immunity was
not waived under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et
seq., for a claim arising out of an alleged misrepresentation, the District Court granted
appellee’s motion and dismissed the amended complaint. The court further concluded
that Zschiegner could not properly assert a claim for recoupment, since such a claim may
only be brought as a counterclaim. This timely appeal followed.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary
review over a District Court’s order dismissing a complaint under Fed. R. Civ. P. 12(b)(1)
for lack of subject matter jurisdiction. See In re Cybergenics Corp.,
226 F.3d 237, 239
(3d Cir. 2000). After careful scrutiny of appellant’s amended complaint and the parties’
submissions on appeal, we agree that the District Court lacked subject jurisdiction over
Zschiegner’s claim for compensatory damages against the United States for its alleged
misrepresentation to the Canadian courts, see 28 U.S.C. § 2680(h), and that appellant’s
purported claim of recoupment was improper. See Livera v. First Nat’l State Bank,
879
F.2d 1186, 1195-96 (3d Cir. 1989); see also United States v. American Color and Chem.
Corp.,
858 F. Supp. 445, 451 (M.D.Pa.1994) (“A recoupment claim can be asserted only
2
when the plaintiff is seeking damages for a defendant’s actions and the defendant
counterclaims seeking to reduce any potential damage award because of the plaintiff’s
actions.”). Accordingly, while we grant Zschiegner’s motion for leave to file a
supplemental brief, we will affirm the District Court’s final order dismissing his amended
complaint for lack of subject matter jurisdiction.