United States District Court, Southern District of New York
August 14, 2003
WILFREDO RODRIGUEZ AND FELICITA APONTE, PLAINTIFFS, AGAINST UNITED STATES OF AMERICA AND ANTHONY B. DENNIS, DEFENDANTS
The opinion of the court was delivered by: Sidney Stein, District Judge
OPINION AND ORDER
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.
A. Legal Standards
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 28 U.S.C. § 2679(d)). Hence, the United States should be substituted as the defendant in the place of Dennis.
C. Felicita Aponte's Claims are Dismissed
It is well settled that Aponte, as Rodriguez's spouse, is also required to file a separate administrative claim with the USPS before bringing a lawsuit against the United States. See Isahack v. United States, No. 00 Civ. 9656, 2001 WL 1456519, *3 (S.D.N.Y. Nov. 15, 2001) (a spouse's loss of consortium claim is barred where no administrative claim had previously been filed); Rispoli v. United States, 576 F. Supp. 1398, 1403 (E.D.N.Y. 1983); see also Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) ("The burden is on the plaintiff to plead and prove compliance with [the FTCA's statutory requirements].") (citing In re Agent Orange Prod. [ Page 4]
Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987)). Although the complaint states that Aponte filed an administrative claim with the USPS on August 8, 2001 for loss of consortium, the government has proffered sworn affidavits stating that searches of the relevant records have been made and the USPS has no record of such a claim ever being filed. (See Jackson Decl. ¶ 3-5, and Stuart Decl. ¶ 4).
Plaintiffs proffer nothing in response. In addition, none of the correspondence annexed to plaintiffs' opposition papers nor the Form 95 itself refers to a claim by Aponte. Aponte has thus failed to prove by a preponderance of the evidence that subject matter jurisdiction exists in this Court. Because the FTCA's "limitations foreclose suit unless the tort claimant has previously presented to the appropriate administrative agency a claim that meets the specific statutory requirements as to its form, content, and timing," Aponte's failure to prove that she filed a claim with the USPS strips this Court of its jurisdiction over her claim. Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998). Accordingly, Aponte's claim should be dismissed for lack of jurisdiction.
D. William Rodriguez's Claims are Dismissed
Defendant contends that Rodriguez also failed to properly file an administrative claim before commencing this action. This Court agrees.
1. The Correspondence Does Not Constitute a Claim
To determine whether or not Rodriguez complied with the procedures for filing an administrative claim as set forth by 28 U.S.C. § 2675, this Court must first consider whether his initial correspondence with the USPS constitutes a claim. For purposes of the provisions of 28 U.S.C. § 2675,
"a claim shall be deemed to have been presented when a
Federal agency receives from a claimant . . . an
executed Standard Form 95 or other written
notification of an incident, accompanied by a claim
for money damages in a sum certain for injury to or
loss of property, personal injury, or death alleged
[ Page 5]
to have occurred by reason of the incident; and the
title or legal capacity of the person signing."
28 C.F.R. § 14.2(a).
"[B]ecause the FTCA constitutes a waiver of sovereign immunity, the procedures set forth in Section 2675 must be adhered to strictly." Keene Corp. v. United States, 700 F.2d 836
, 841 (2d Cir. 1983).
Although the complaint alleges that Rodriguez filed his claim with the USPS on August 8, 2001, plaintiffs have produced no evidence in support. Rather, the only document produced by plaintiffs that corresponds with that date is the letter from the USPS to plaintiffs' attorney informing him that his July 18, 2001 letter regarding Rodriguez's injuries had been sent to the wrong department of the postal service. (See Opposition, Ex. C). Written correspondence may substitute for a Form 95 in filing an administrative claim, but this correspondence must include a sum certain. See Adams v. United States Dep't of Housing & Urban Dev., 807 F.2d 318, 320-1 (2d Cir. 1986) ("[The] requirement that the request for damages in any administrative claim state a sum certain, . . . like other requirements imposed in § 2675, is jurisdictional and cannot be waived."); Mosseri v. F.D.I.C., No. 97 Civ. 969, 1999 WL 694289, *3 (S.D.N.Y. Sept. 9, 1999); 28 C.F.R. § 14.2(a).
Here, neither the July 18, 2001 letter to the USPS nor the June 13, 2002 nor the July 8, 2002 letters produced by plaintiffs include a sum certain. (See Opposition, Exhs. B, D and F). Therefore, Rodriguez's correspondence with the USPS cannot constitute an administrative claim as defined by 28 U.S.C. § 2675. See Johnson, 189 F.3d at 190 (letters sent to an administrative agency did not constitute the filing of a formal administrative claim because they included no sum certain); Finelli v. Drug Enforcement Agency, No. 92 Civ. 3463, 1993 WL 51105, *3 (S.D.N.Y. Feb. 24, 1993).
2. Disputed Receipt of Rodriguez's Form 95
Rodriguez produced a Form 95 dated July 8, 2002, but defendant maintains that Rodriguez failed to file this form with the USPS and denies that the USPS ever received a Form 95 from him. District courts in the Second Circuit are split as to whether proof of mailing is sufficient or whether [ Page 6]
proof of receipt is necessary for a plaintiff to show that he filed an administrative claim in compliance with 28 U.S.C. § 2675. See Payne v. United States, 10 F. Supp.2d 203, 205 (N.D.N.Y. 1998) (letter and attached notice of claim were insufficient to prove strict compliance with the regulations of 28 U.S.C. § 2675, and requiring "evidence of actual receipt.") (internal citations omitted); cf. Cordaro v. Lusardi, 354 F. Supp. 1147, 1149 (S.D.N.Y. 1973) ("Proof of mailing creates a rebuttable presumption of receipt."). There is no need for this Court to weigh in on this issue; assuming arguendo that the Form 95 and cover letter produced by Rodriguez are sufficient to prove that he properly filed a Form 95 with the USPS, this Court still has no jurisdiction over his claim because this action is untimely.
3. Rodriguez Failed to File This Action Timely
28 U.S.C. § 2675(a) provides, in pertinent part, that an action shall not be instituted against the United States for money damages for personal injury,
"unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in
writing and sent by certified or registered mail. The
failure of an agency to make final disposition of a
claim within six months after it is filed shall, at
the option of the claimant any time thereafter, be
deemed a final denial of the claim for purposes of
this section." 28 U.S.C. § 2675(a).
In the complaint, Rodriguez states that the claim he allegedly submitted to the USPS was rejected by that agency (Compl. ¶ 4). However, he provides neither a date on which his claim was denied nor any documentation of a denial. Additionally, the requisite six months had not passed between the date the Form 95 was allegedly filed — July 8, 2002 — and the date Rodriguez commenced this action by filing his complaint in the Southern District of New York — September 3, 2002. In fact, the Form 95 predates the complaint by less than two months. Consequently, because Rodriguez has not strictly complied with the procedures set forth in § 2675(a) for instituting a claim pursuant to the FTCA, this Court does not have jurisdiction over Rodriguez's claim. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993) ("The FTCA bars [ Page 7]
claimants from bringing suit in federal court until they have exhausted their administrative remedies."). Therefore, Rodriguez's claim should also be dismissed for lack of subject matter jurisdiction.
For the reasons set forth above, the United States is substituted for defendant Anthony B. Dennis; the United States is thus the sole defendant, and the motion of the United States to dismiss the complaint for lack of subject matter jurisdiction is granted.*fn1