                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"Zschiegner v. USA" (2005). 2005 Decisions. Paper 695.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/695


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                                                              NOT PRECEDENTIAL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.
