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Abdelmoneim v. Department of The Army

United States District Court, E.D. New York

March 27, 2014

MAGDI ABDELMONEIM, Plaintiff,
v.
DEPARTMENT OF THE ARMY, GSA U.S. GOVERNMENT, JOSE A. SUAREZ-CARDONA, Defendants.

MEMORANDUM AND ORDER

DORA L. IRIZARRY, District Judge.

Plaintiff Magdi Abdelmoneim ("Abdelmoneim" or "Plaintiff") brings this action against the Department of the Army (the "Army"), GSA U.S. Government (the "government"), and Jose A. Suarez-Cardona ("Staff Sergeant Suarez-Cardona") (collectively, "Defendants"), seeking to recover damages for personal injuries allegedly suffered as a result of the Defendants' negligence. ( See Compl., Docket Entry No. 1.) Defendants move to dismiss all of the claims asserted against them pursuant to Rules 12(b)(1) and 12(b)(5) of the Federal Rules of Civil Procedure. Plaintiff opposes. For the reasons set forth below, Defendants' motion is granted due to lack of subject matter jurisdiction.

BACKGROUND

The following facts are taken from the Plaintiff's Complaint, documents attached to the Complaint, and matters of which judicial notice may be taken. These facts are assumed true solely for purposes of this motion.

On May 1, 2009, at approximately 1:45 a.m., Plaintiff was driving westbound on the Gowanus Expressway in Brooklyn, New York. (Compl. ¶ 6.) Staff Sergeant Suarez-Cardona, an Army employee, collided with Plaintiff while driving a government-owned vehicle, causing Plaintiff to "sustain damage to his body and person." (Compl. ¶¶ 10-12, 22, 29, Ex. 2 at 2.)

On July 14, 2010, Plaintiff brought a claim for damages with the Army Claims Service (the "Agency"). (Compl. ¶ 14, Ex. 2 at 6-7.) By letter dated April 16, 2012 (the "Denial Letter"), the Agency denied Plaintiff's claim on the basis that Staff Sergeant Suarez-Cardona was not acting within the scope of his employment at the time of the collision. (Compl., Ex. 2 at 2-3.) The Denial Letter stated that it was notifying Plaintiff of "final administrative action." ( Id. ) The Denial letter also informed Plaintiff that he was required to file suit challenging the Agency's decision no later than six months from the date of the mailing of the Denial Letter, or else be "forever bar[red] from further suit." ( Id. )

After receiving the Denial Letter, Plaintiff initiated an uninsured motorist claim with Hereford Insurance ("Hereford") in New York State Supreme Court, Kings County (the "State Court action"). (Pl.'s Mem. ¶ 4, Docket Entry No. 13.) In August 2012, Hereford moved for a stay of the State Court action in order to challenge the Agency's denial of Plaintiff's claim. ( Id. ¶¶ 4-5.) On May 30, 2013, the stay was granted ( id. ¶ 5), and on June 17, 2013, Hereford commenced a declaratory judgment action against Plaintiff and Defendants in this district (the "Declaratory Judgment action"). See Hereford Insurance Co. v. Abdelmoneim, 13-cv-3430 (JBW)(VMS).[1]

On October 19, 2013, Plaintiff commenced this action against Defendants, claiming "dissatisf[action] with the denial of the claim brought" before the Agency. (Compl. ¶ 7.) Defendants move to dismiss Plaintiff's claims against them pursuant to Rules 12(b)(1) and 12(b)(5) of the Federal Rules of Civil Procedure, claiming that Plaintiffs' claims are time-barred under the Federal Tort Claims Act ("FTCA") and that Plaintiff failed to timely effectuate service of process on the Defendants. (Defs.' Mem. at 2, Docket Entry No. 9-1.) Plaintiff opposes. (Pl.'s Mem.) For the reasons set forth below, Defendants' motion is granted on the ground that Plaintiff's claims are time-barred, and, therefore, the Court lacks subject matter jurisdiction. As such, the Court need not reach Defendants' additional ground for dismissal.

DISCUSSION

I. Legal Standard

Subject matter jurisdiction is a threshold issue. Thus, the court must address Defendant's 12(b)(1) motion first. See Sherman v. Black, 510 F.Supp.2d 193, 197 (E.D.N.Y. 2007) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990)). It is axiomatic "that federal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress." Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (quotation marks omitted). In reviewing a motion to dismiss under Rule 12(b)(1), the Court must accept as true all material factual allegations in the Complaint, but the Court is not required to draw all reasonable inferences in Plaintiff's favor. Cuello v. United States, 2013 WL 1338839, at *6 (E.D.N.Y. Mar. 29, 2013) (citing J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004)). Rather, a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. Id. (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In analyzing a motion to dismiss for lack of subject matter jurisdiction, the Court may refer to evidence outside the pleadings. Zappia Middle E. Const. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).

Generally, federal courts lack jurisdiction over suits brought against the United States government. See Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (finding that the United States is immune from suit except as it consents to be sued); Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941) ("the terms of the [government's] consent to be sued in any court define that court's jurisdiction to entertain the suit"). The FTCA constitutes a limited waiver of the government's sovereign immunity for tort claims brought against the government. Gay v. Terrell, 2013 WL 5437045, at *25 (E.D.N.Y. Sept. 27, 2013) (finding that "[t]he Federal Tort Claims Act is the exclusive remedy... for any wrongful act or omission committed by a federal employee within the scope of employment"). The FTCA's requirements for bringing suit against the government must be strictly construed, U.S. v. Kubrick, 444 U.S. 111, 117-18 (1979) (finding that the FTCA's waiver of sovereign immunity should not be extended beyond that which Congress intended), because a litigant's failure to comply with "the conditions under which the Government has agreed to waive [sovereign] immunity" deprives the Court of subject matter jurisdiction. Davis v. Goldstein, 2013 WL 3208369, at *3 (E.D.N.Y. June 24, 2013); see also Gilvar v. United States, 468 F.Appx. 31, 32 (2d Cir. 2012) (finding that failure to timely file suit is a "jurisdictional defect" under the FTCA); Goldblatt v. Nat'l Credit Union Admin., 502 F.Appx. 53, 55 (2d Cir. 2012) (finding that the district court properly determined that it lacked subject matter jurisdiction because the appellants filed their complaint more than six months after the federal agency denied their administrative claim).

II. Analysis

Under the FTCA, a claimant must exhaust his administrative remedies before bringing a tort suit against the government. 28 U.S.C. § 2675(a) (providing that "an action shall not be instituted upon a claim 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....") Once the appropriate Federal agency has "finally denied" a claim, a claimant must bring ...


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