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X MARIA OTAVALO v. UNITED STATES OF AMERICA

November 30, 2010

X MARIA OTAVALO, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Kiyo A. Matsumoto United States District Judge Eastern District of New York

X KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:

MEMORANDUM & ORDER

Pro se plaintiff, Maria Otavalo ("plaintiff"), brings this action for damages against the United States (the "government") pursuant to the Federal Tort Claims Act ("FTCA"),

28 U.S.C. §§ 1346(b), 2671, et seq., arising from a motor vehicle accident between plaintiff and an employee of the Drug Enforcement Administration ("DEA") of the United States Department of Justice. The government moves to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction for failure to exhaust administrative remedies. (See generally ECF No. 13, Mot. to Dismiss.) Plaintiff opposes the motion. (See generally ECF No. 13, Attach. 4, Aff. in Opp. ("Pl.'s Aff. in Opp.").) Because the plaintiff failed to exhaust the administrative procedures mandated by the FTCA prior to commencing this action, this court lacks subject matter jurisdiction over the action, and accordingly dismisses all claims against the government without prejudice.

BACKGROUND*fn1

On October 6, 2009, plaintiff was involved in a motor vehicle accident (the "Accident") with an automobile driven by Raymond Donovan ("Mr. Donovan"), an employee of the DEA. (Notice of Removal ¶¶ 2-4.) Following the Accident, plaintiff initiated this action by filing a Notice of Claim in Queens County Small Claims Court. (Notice of Removal ¶ 1; Notice of Claim.) Plaintiff alleged that she suffered damages to her automobile as a result of the Accident with Mr. Donovan. (Notice of Removal ¶ 2; Notice of Claim.)

At the time of the Accident, Mr. Donovan was acting within the scope of his employment as an employee of the DEA. to Appear ("Notice of Claim"), which was originally filed in the City of New York, Small Claims Part, Queens County ("Queens County Small Claims Court") and subsequently removed to this court, and the government's Certification of Scope of Employment and Notice of Substitution of United States of America as Party Defendant ("Certification of Scope of Employment"). (See ECF No. 1, Notice of Removal dated December 14, 2009 ("Notice of Removal") & Ex. A, Certification of Scope of Employment and Notice of Substitution of United States of America as Party Defendant dated December 14, 2009 ("Certification of Scope of Employment") & Ex. B, Notice of Claim and Summons to Appear ("Notice of Claim").) Where indicated, the factual background is supplemented by a sworn affidavit provided to the court as an attachment to the government's Motion to Dismiss. (See generally ECF No. 13, Ex. 3, Decl. of Karen K. Richardson dated August 16, 2010 ("Richardson Decl."). This affidavit is properly considered on a motion for dismiss for lack of subject matter jurisdiction. See King County, Wash. v. IKB Deutsche Industriebank AG, 712 F. Supp. 2d 104, 112 (S.D.N.Y. 2009) ("A district court may refer to evidence outside the pleadings such as sworn affidavits, correspondence between the parties, contracts, or other relevant documents" in order to resolve a motion to dismiss for lack of subject matter jurisdiction.) (internal citations and quotation marks omitted).

Prior to commencing this action, plaintiff did not file an administrative tort claim relating to the Accident, nor did plaintiff file such a claim at any time prior to removal of this action from Queens County Small Claims Court to the Eastern District. (Richardson Decl. ¶¶ 5-11.) On August 2, 2010, however, plaintiff submitted an SF-95 administrative tort claim form to the Assistant United States Attorney during a status conference before Chief Magistrate Judge Gold. (Id. at ¶ 12; 8/2/10 Minute Entry for Status Conference ("8/2/10 Minute Entry").) The Assistant United States Attorney subsequently forwarded the SF-95 form to the DEA. (Richardson Decl. ¶ 12.)

At the August 2, 2010 status conference, plaintiff declined the government's offer to stipulate to dismiss the case without prejudice while her administrative claim was pending. (8/2/10 Minute Entry.) The court accordingly allowed the government to move to dismiss the action, which it did on August 18, 2010. (See generally Mot. to Dismiss.) Plaintiff filed an Affidavit in Opposition on September 7, 2010. (See generally Pl.'s Aff. in Opp.) The government did not submit a reply. (ECF No. 14, 9/15/10 Letter from Landau to the Court at 1.)

DISCUSSION

The government argues that plaintiff's case must be dismissed without prejudice pursuant to Rule 12(b)(1) because plaintiff failed to exhaust her administrative remedies prior to initiating this federal action. (Mot. to Dismiss at 1, 3-5.) Plaintiff opposes the government's motion, arguing that she has a "legitimate claim for damages to [her] car" and that the government "should not get away with [damaging her car] without paying." (Pl.'s Aff. in Opp. at ¶ 3.) Plaintiff does not contend that she has exhausted her administrative remedies under the FTCA. (See generally Pl.'s Aff. in Opp.)

I. Standard of Review

Rule 12(b)(1) allows a district court to dismiss a case for lack of subject matter jurisdiction if the court "'lacks the statutory or constitutional power to adjudicate [the case].'" Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In reviewing a Rule 12(b)(1) motion to dismiss, "the Court assumes as true the factual allegations in the complaint, and resolves any factual ambiguities in favor of the plaintiff." Fraser v. United States, 490 F. Supp. 2d 302, 307 (E.D.N.Y. 2007). However, jurisdictional inferences should not be drawn in the plaintiff's favor. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). In resolving a motion to dismiss for lack of subject matter jurisdiction, courts may consider evidence outside of the pleadings. See Makarova, 201 F.3d at 113; Thomas v. Metro. Corr. Ctr., No. 09-CV-1769, 2010 WL 2507041, at *1 (S.D.N.Y. June 21, 2010). A plaintiff asserting subject matter jurisdiction has the burden of proving that jurisdiction exists by a preponderance of evidence when opposing a 12(b)(1) motion to dismiss. Aurecchione, 426 F.3d at 638..

Because plaintiff is proceeding pro se, her papers must be read liberally and interpreted as raising the strongest arguments they suggest. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006); ...


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