The opinion of the court was delivered by: Sidney Stein, District Judge
Wilfredo Rodriguez and his wife, Felicita Aponte, have sued the United States and Anthony B. Dennis, an employee of the United States Postal Service ("USPS"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., for personal injuries Rodriguez sustained in a car accident. Rodriguez seeks damages for his injuries and Aponte seeks damages for loss of consortium. The United States has now moved to substitute itself as the sole defendant and to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Because plaintiffs have failed to comply strictly with the procedures set forth in the FTCA, the government's motion is granted in full.
Rodriguez alleges that on June 23, 2001, he was injured in a car accident in the Bronx, New York when Dennis, a USPS employee driving a USPS vehicle, collided with the vehicle that Rodriguez was driving. Approximately three weeks later — on July 18, 2001 — plaintiffs' attorney sent a letter to the USPS notifying it of the accident and requesting a file number and insurance information from the USPS. The USPS responded by letter dated August 8, 2001, informing [ Page 2]
plaintiffs' attorney that his prior correspondence had been sent to the wrong department of the postal service and indicating the proper department to which future correspondence was to be sent.
Approximately ten months later, on June 13, 2002, plaintiffs' attorney forwarded to the USPS an authorization for Rodriguez's insurance company to release to the USPS records concerning his accident and various medical records. The next week, the USPS responded with a letter to plaintiffs' attorney requesting that Rodriguez complete a "Form 95," the "prescribed form necessary for the presentation of claims for Damage, Injury, or Death".
Plaintiffs claim that they then returned a completed Form 95 along with a cover letter to the USPS on July 8, 2002, although that is denied by the government. On September 3, 2002, plaintiffs filed this complaint.
An action will be dismissed for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) when the trial court lacks the power to adjudicate the case. When deciding a motion to dismiss for lack of subject matter jurisdiction, a court must "accept as true all material factual allegations in the complaint," but should not draw "argumentative inferences favorable to the party asserting jurisdiction." Atlantic Mut. Ins. Co. v. Balfour MacLaine Int'l. Ltd., 968 F.2d 196, 198 (2d Cir. 1992). The Court may also consider evidence outside the pleadings, such as affidavits and other documents that are relevant to the issue of subject matter jurisdiction. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Ultimately, "[the party] asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id.; Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996).
B. The United States is the Sole Proper Defendant [ Page 3]
The claims of both plaintiffs are tort claims and are therefore governed by the FTCA. Plaintiffs have named the United States and Anthony B. Dennis as defendants. The FTCA expressly provides that "the remedy against the United States . . . for tortious acts committed by employees acting within the scope of employment is exclusive of any other civil action or proceeding against the employee." McHugh v. University of Vermont, 966 F.2d 67, 70 (2d Cir. 1992); 28 U.S.C. § 2679(b)(1). Consequently, if the Attorney General of the United States certifies that an employee of a federal agency who is named as a defendant was "acting within the scope of [his] office or employment at the time of the incident out of which the claim arose," then the action "shall be deemed an action . . . against the United States, . . . and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(1).
In this case, the United States Attorney for the Southern District of New York, on behalf of the Attorney General, has certified that Dennis "was acting within the scope of his employment as an employee of the United States of America at the time of the incident alleged in plaintiffs' complaint." (James B. Comey Certification, attached to James Decl.); see also C.F.R. § 15.3 (U.S. Attorneys are authorized to issue certifications pursuant to ...