United States District Court, E.D. New York
December 20, 2004.
ALEKSANDR FURMAN, Plaintiff,
UNITED STATES POSTAL SERVICE, CLARENCE ROBINSON, CITY OF LONG BEACH AND RONALD PAGANINI, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
The claims of the Plaintiff Aleksandr Furman's ("Furman" or the
"Plaintiff") against the United States Postal Service ("USPS"),
Clarence Robinson ("Robinson"), the City of Long Beach ("Long
Beach"), and Ronald L. Paganini ("Paganini") arise out of a
collision that allegedly occurred on July 22, 2002 involving a
motor vehicle owned by Long Beach and a USPS motor vehicle
operated by Robinson.
Presently before the Court is a motion by the USPS and Robinson
pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules
of Civil Procedure ("Fed.R.Civ.P.") to dismiss the complaint
for lack of subject matter jurisdiction and for failure to state
According to the Complaint, on July 22, 2002, Robinson, an
employee of the USPS, while operating a USPS vehicle, collided
with a Long Beach transit bus that was operated by Ronald L.
Paganini. Furman was a passenger in the bus and alleges that as a
result of this accident he suffered serious injuries as defined
by New York Insurance Law § 5102(d) and economic losses.
The Plaintiff, through his attorney Guy R. Vitacco, Esq., filed
an administrative claim with the USPS by submitting a Standard
Form 95 dated September 12, 2002 (the "SF-95"). In the SF-95, the
Plaintiff claimed that he sustained "serious, severe and
permanent injuries" as a result of the July 22, 2002 accident and
requested damages in the amount of $350,000.
By letter dated September 23, 2002, Robert Ural, an
Accident/Claims Investigator for the USPS, acknowledged receipt
of the Plaintiff's claim and advised Vitacco that he must
substantiate his claim in accordance with Paragraph (a) of the
"Instructions" section on the Standard Form 95 ("Paragraph (a)").
Paragraph (a) states:
In support of the claim for personal injury or death,
the claimant should submit a written report by the
attending physician, showing the nature and extent of
injury, the nature and extent of treatment, the
degree of permanent disability, if any, the
prognosis, and th period of hospitalization, or
incapacitation, attaching itemized bills for medical,
hospital, or burial expenses actually incurred.
The September 23, 2002 letter also indicated that "incomplete
or incorrectly submitted forms, bills, etc. will cause delay in
adjudication of the claim. You are therefore advised to exercise
extreme care in completion of said forms." The Plaintiff did not
respond or provide any documentation in response to this letter.
By letters dated May 15, 2003 and June 27, 2003, the USPS
further advised Vitacco of the need to provide medical reports,
itemized medical bills, and wage loss statements. The June 27,
2003 letter also advised the Plaintiff that Paragraph (a) must be
complied with before the claim can be considered for
adjudication. This letter further warned that if the Plaintiff
does not submit the requested materials within 21 days from the
date of the letter, the USPS will be unable to properly evaluate
the claim and will have no recourse but to issue a denial. By
letter dated July 18, 2003, the USPS denied the Plaintiff's claim
because it did not receive the requested information.
On July 28, 2003, the Plaintiff commenced the instant action.
Thereafter, ten months later, on May 24, 2004, Vitacco mailed to
the USPS, by certified mail, return receipt requested, copies of
the Plaintiff's medical records and medical bills regarding the
incident in question. The mailing records indicate that these
documents were received by the USPS on June 4, 2004.
1. Standard of Review for a Motion to Dismiss
a. Rule 12(b)(1)
When considering a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the Court may consider
affidavits and other materials beyond the pleadings to resolve
jurisdictional questions. See Robinson v. Gov't of Malaysia,
269 F.3d 133, 141 n. 6 (2d Cir. 2001). Under Rule 12(b)(1), the
court must accept as true all material factual allegations in the
complain but will not draw inferences favorable to the party
asserting jurisdiction. See Shipping Fin. Servs. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Hearsay statements
contained in the affidavits may not be considered. See Kamen v.
AT&T, 791 F.2d 1006, 1011 (2d Cir. 1986).
The party asserting jurisdiction has the burden of pleading and
proving compliance with the procedural requirements of the FTCA.
In re Agent Orange Product Liability Litigation, 818 F.2d 210,
214 (2d Cir. 1987). Absent sufficient proof by the asserting
party, the court lacks jurisdiction over the matter. Id.
b. Rule 12(b)(6)
In deciding a motion to dismiss under Rule 12(b)(6), a district
court must "accept all of the plaintiff's factual allegations in
the complaint as true and draw inferences from those allegations
in the light most favorable to the plaintiff." Desiderio v.
National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.
1999). The Court should dismiss the complaint pursuant to Rule
12(b)(6) only if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his complaint which would
entitle him to relief. King v. Simpson, 189 F.3d 284, 287 (2d
Cir. 1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).
2. The Federal Tort Claims Act
a. The United States is the Proper Party Defendant
The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et
seq., 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."
28 U.S.C. § 2679(b)(1); McHugh v. University of Vermont, 966 F.2d 67, 70
(2d Cir. 1992) ("[T]he 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."). Accordingly, pursuant to
28 U.S.C. § 2679(d)(1):
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
office or employment at the time of the incident out
of which the claim arose, any civil action or
proceeding commenced upon such claim in a United
States district court shall be deemed an action
against the United States under the provisions of
this title . . . and the United States shall be
substituted as the party defendant.
Here, Assistant United States Attorney Laura D. Mantell
certified that Robinson "was acting within the course and scope
of his employment as an employee of the United States of America
in connection with all of the allegations in this matter." Laura
D. Mantell Certification attached to Stuart James Decl. Thus, the
United States is the proper defendant and is substituted as the
defendant in the place of the USPS and Robinson. See Rodriguez
v. United States, et al., No. 02 Civ. 6947, 2003 U.S. Dist.
LEXIS 14241, at *4-5 (S.D.N.Y. Aug. 14, 2003).
b. The Plaintiff Failed to Exhaust Administrative Remedies
28 U.S.C. § 2675(a) provides, in relevant part:
An action shall not be instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or employment,
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 . . .
Compliance with Section 2675 "is strictly construed." Romulus
v. United States, 983 F. Supp. 336, 338 (E.D.N.Y. 1997),
aff'd, 160 F.3d 131
(2d Cir. 1998). Without this administrative
exhaustion, courts lack subject matter jurisdiction over the
claim. See McNeil v. United States, 508 U.S. 106, 112,
113 S. Ct. 1980, 1983; 124 L. Ed. 2d 21, 28 (1993) (Holding that an FTCA
action may not be maintained where claimant failed to exhaust his
administrative remedies prior to filing suit, even though
claimant sought to exhaust his administrative remedies after
filing.); see also Johnson v. The Smithsonian Institution,
189 F.3d 180
, 190 (2d Cir. 1999); Romulus, 160 F.3d at 132 (2d Cir.
The purpose of the exhaustion requirement is to allow the
government to "investigate, evaluate and consider settlement of a
claim," in order to "`ease court congestion and avoid
unnecessary litigation, while making it possible for the
Government to expedite the fair settlement of tort claims
asserted against the United States.'" State Farm Ins. Co., v.
United States, No. 02 Civ. 3888, 2004 U.S. Dist. LEXIS 14427, at
*5 (E.D.N.Y. July 23, 2004) (quoting S. Rep. No. 89-1327, at 2516
(1966)); see also Robinson v. United States Navy, 342 F. Supp. 381,
383 (E.D. Penn 1972) ("The purpose of
28 U.S.C. § 2675(a) is to spare the Court the burden of
trying cases when the administrative agency can settled the case without
litigation."). Furthermore, the agency whose employee allegedly caused
the damage at issue in the claim will most likely be in the best
position make determinations as to liability and to settle
meritorious claims quickly and efficiently, thereby avoiding
expensive and time-consuming litigation when possible. McNeil,
28 U.S. at 112.
Under the FTCA, a claim must be presented to an agency within
two years of the date on which the action accrued.
28 U.S.C. § 2401(b). In Romulus, the Second Circuit explained how a claim
is properly "presented" an agency:
In this Circuit, a Notice of Claim filed pursuant to
the FTCA must provide enough information to permit
the agency to conduct an investigation and to
estimate the claim's worth. A claim must be specific
enough to serve the purpose of the FTCA to enable the
federal government to expedite the fair settlement of
tort claims . . . [T]he mere act of filing a SF 95
does not necessarily fulfill the presentment
requirement of § 2675(a). A claimant must provide
more than conclusory statements which afford the
agency involved no reasonable opportunity to
investigate. In the instant case, the plaintiffs
failed to provide adequate information to permit the
USPS to investigate their claims.
Romulus, 160 F.3d at 132 (internal citations omitted); see
also 28 C.F.R. § 14.2(a). Thus, "[a] formal claim is not filed
for purposes of [the FTCA] until a Federal agency receives from a
claimant written notification of an incident `accompanied by a
claim for money damages in a sum certain for injury to or loss of
property . . . and is accompanied by evidence of his authority to
present [the] claim." Johnson, 189 F.3d at 190 (citing
28 C.F.R. 14.2(a)). This information is used to "permit an
investigation and estimate the claim's worth." Keene Corp. v.
United States, 700 F.2d 836
(2d Cir. 1983).
Here, the Plaintiff's SF-95 contains a brief description of the
incident and the alleged injuries in question. In the Court's
view, the information provided on this form was not "specific
enough to serve the purpose of the FTCA to enable the federal
government to expedite the fair settlement of tort claims."
Romulus, 160 F.3d at 132 (citations omitted) (finding that the
Standard Form 95 that was filed with the USPS did not include
sufficient information to allow the agency to satisfactorily
investigate the claims.").
In addition, despite the language contained in Paragraph (a) of
the "Instructions" section on the Form 95 advising the claimant
to submit, among other things, a written report from his
attending physician; numerous letters from the USPS advising
Vitacco that more information is necessary to substantiate the
claim; and the cautionary language contained in Paragraph (d)
that "failure . . . to supply the requested material within two
years from the date the allegations accrued may render your claim
`invalid,'" the Plaintiff did not timely submit supporting
documentation. As such, his claim was denied on July 18, 2003
because of the Plaintiff's "failure to submit competent evidence
of injury as is required." Letter from USPS to Vitacco dated July
Even though the Plaintiff commenced this action within six
months after his claim was denied by the USPS, a denial for
improper presentment, such as in this case, is "not to be
construed as a `final denial' within the meaning of the [FTCA]."
Romulus, 983 F. Supp. at 343. If claimants were allowed to
proceed in federal court without properly presenting their claim
to the relevant agency, it would "in essence give a claimant who
improperly presented her claim a `pass' into Federal court."
The Plaintiff requests that the Court deem the medical records
that were received by the USPS on June 4, 2004 "to have been
filed nunc pro tunc" because they were filed with the agency
within the two year statute of limitations. Vitacco Decl. ¶ 8.
The Court denies this request because the medical records were
received after the claim had already been denied by the USPS and
after this lawsuit was filed. Thus, because the Plaintiff's
administrative claim was improperly presented to the USPS, the
USPS never had the opportunity to investigate and attempt to
resolve the Plaintiff's claims prior to his commencement of this
action which are prerequisites to filing a claim under the FTCA.
See 28 U.S.C. § 2675(a)
Finally, with regard to the Plaintiff's statement that the
Government would not be prejudiced by the denial of its motion,
the Court notes that
Every premature filing of an action under the FTCA
imposes some burden on the judicial system and on the
Department of Justice which much assume the defense
of such actions. Although the burden may be slight in
an individual case, the statute governs the
processing of a vast multitude of claims."
O'Connor, 2000 WL 375238, at *3 (quoting McNeil,
509 U.S. at 112).
or the reasons stated above, the Court has no subject matter
jurisdiction over this matter. Accordingly, the motion to dismiss
by the USPS and Robinson is granted. See Id. (dismissing case
for lack of subject matter jurisdiction because USPS was not able
to investigate claim due to the Plaintiff's failure to provide
agency with substantiating documentation despite two requests.);
see also O'Connor v. United States, No. 99 Civ. 0117, 2000 WL
375238, at *2 (S.D.N.Y. April 12, 2000) (Dismissing complaint
pursuant to Rule 12(b)(1) for failure to comply with the
presentment requirement of Section 2675(a) where plaintiff failed
to respond to three requests by the agency for additional
Based on the foregoing, it is hereby
ORDERED, the United States is substituted for the Defendants
the USPS and Robinson and the United States is thus the sole
defendant; and it is further
ORDERED, that the motion of the United States to dismiss the
complaint for lack of subject matter jurisdiction is GRANTED;
and it is further
ORDERED, that the Clerk of the Court is directed to amend the
caption as follows:
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