United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge John
Larkins's Final Report and Recommendation 
(“Final R&R) recommending granting Defendants Star
Freight, LLC, Mr. Charlie Johnson, Mr. Brendan Smith, and Ms.
Laura Reed's (collectively, “Defendants”)
Motion to Dismiss  (the “Motion”).
February 6, 2018, Plaintiff Quantuse Jace Johnson
(“Plaintiff”) filed this action using the
Court's pro se Employment Discrimination
Complaint  against Defendants indicating he was alleging a
claim for employment discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e, et
seq. ( at 1). In the area of the form that instructs
the plaintiff to identify the protected classification on
which he was discriminated, however, Plaintiff selected
“other” and specified he believes he was
discriminated because he refused to perform a task that was
unsafe under the Federal Motor Carrier Safety Administration
Rules. (Id. at 6). Plaintiff does not allege any
facts to suggest that his race, religion, gender, national
origin, age, disability, or that his engagement in a
protected activity, prompted the alleged discrimination.
February 26, 2018, Defendants filed the Motion arguing
Plaintiff's Complaint fails for lack of subject matter
jurisdiction. (). Defendants argue that Plaintiff's
only recourse is with the United States Department of Labor
(“DOL”) because the grounds he alleges for his
termination arise only from his refusal to perform unsafe
tasks under the DOL's commercial motor vehicle safety
regulations. Defendants point to the Surface Transportation
Assistance Act (“STAA”) as the source setting out
an administrative procedure for aggrieved drivers of
commercial motor vehicles like Plaintiff to challenge adverse
employment actions based on the driver's refusal to
operate a vehicle in violation of regulations. ([4.1] at 3-5;
see also 49 U.S.C. § 31105(a)). Plaintiff
argues, in response, that the Court does have subject matter
jurisdiction because the STAA gives the employee the option
of filing a complaint with the Secretary of Labor or the
court. Plaintiff cites 49 U.S.C. § 31105(b), which
provides that an employee “my file a complaint with the
Secretary of Labor.” ( at 3-4). Plaintiff argues, in
the alternative, that the Court has diversity jurisdiction.
(Id. at 4).
April 26, 2018, the Magistrate Judge issued his Final R&R
recommending that Defendant's Motion to Dismiss for lack
of subject matter jurisdiction with leave to file an amended
complaint asserting his state law claims and alleging the
citizenship of all the parties in the action. No. objections
to the Final R&R were filed.
Review of Magistrate Judge Report and Recommendation
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982), cert. denied, 459
U.S. 1112 (1983). Because no objections to the Final R&R
have been filed, the Court reviews the R&R for plain
error. United States v. Slay, 714 F.2d 1093, 1095
(11th Cir. 1983), cert. denied, 464 U.S. 1050
Motion to Dismiss
complaint should be dismissed under Rule 12(b)(1) only where
the court lacks jurisdiction over the subject matter of the
dispute. Fed.R.Civ.P. 12(b)(1). “A motion to dismiss
for lack of subject matter jurisdiction under [Federal Rule
of Civil Procedure] 12(b)(1) can be made in one of two ways:
a facial attack or a factual attack.” IVC US, Inc.
v. Linden Bulk Transportation SW, LLC, No.
4:15-CV-0120-HLM, 2015 WL 13640506, at *4 (N.D.Ga. Nov. 6,
2015) (quoting Taylor v. Gazolio, Inc., No.
12-61151-Civ., 2012 WL 3683517, at *1 (S.D. Fla. Aug. 24,
2012)). “‘Facial attacks' on the complaint
‘require[ ] the court merely to look and see if [the]
plaintiff has sufficiently alleged a basis of subject matter
jurisdiction, and the allegations in [the] complaint are
taken as true for the purposes of the motion.'”
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990) (first and second alterations in original) (quoting
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511
(5th Cir. 1980)). On a facial attack, a district court may
properly consider extrinsic evidence, such as deposition
testimony and affidavits, and make findings of fact.
Id. “‘Factual attacks, ' on the
other hand, challenge ‘the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and
matters outside the pleadings, such as testimony and
affidavits, are considered.'” Id. (quoting
Menchaca, 613 F.2d at 511). Here, the Magistrate
Judge concluded, and then evaluated, Defendants' Motion
as a facial attack. ( at 6). The Court finds no plain
error in this finding.
Magistrate Judge first concluded that, “even though
Plaintiff indicated on [his] pro se complaint form
that he is asserting a claim under Title VII, his claim does
not involve alleged discrimination based on any protected
class or retaliation for engaging in protected
activity.” ( at 6-7). The Magistrate Judge thus
found that “Title VII-the only federal statute Johnson
relies on in the complaint-is wholly inapplicable to this
case.” (Id. at 7). The Magistrate Judge also
found that, to the extent Plaintiff alleges a claim based on
his unlawful termination because of his refusal to operate a
truck under unsafe conditions, Plaintiff was required to
first pursue his claim administratively with the DOL.
(Id.). The STAA provides a detailed, comprehensive
administrative scheme under which claims such as
Plaintiff's must be processed. 49 U.S.C. §
31105(b)(1). Only after various steps are followed, does the
STAA allow an employee to bring an original action for de
novo review in a federal district court. Id.
§ 31005(c). The Magistrate Judge ultimately concluded