United States District Court, Eastern District of New York
Plaintiff is represented by Timothy Kelly, Suris & Associates,
Defendants are represented by Robert Kambic
MEMORANDUM AND ORDER
JOSEPH F. BIANCO United States District Judge
On January 15, 2014, plaintiff Stephen Marcus (“plaintiff”) filed a complaint against the United States Postal Service (“USPS”), the United States of America, and Thomas Reade (“defendants”) pursuant to the Federal Tort Claims Act (“FTCA”) for damages resulting from injuries he allegedly suffered in a motor vehicle accident caused by Reade while Reade was driving a USPS vehicle on January 21, 2012.
Defendants now move to dismiss plaintiff’s claims under Rule 12(b)(1) for failure to timely file an administrative claim with the USPS as plaintiff was required to do under the FTCA’s presentment requirement. As a threshold matter, because the Supreme Court recently held in United States v. Wong, 135 S.Ct. 1625, 1638 (2015), that the FTCA’s time bar is nonjurisdictional (and subject to equitable tolling), this issue cannot be decided under Rule 12(b)(1), but rather must be considered under Rule 12(b)(6). See, e.g., Torres v. United States, __ F. Appx. __, No. 14-3880, 2015 WL 2190966, at *2 (2d Cir. May 12, 2015) (“[A]lthough the district court was correct that the statute of limitations bars Torres's FTCA claim, that conclusion requires a dismissal on substantive, not jurisdictional, grounds.”); Jackson v. Donahoe, No. 1:15-CV-3, 2015 WL 1962939, at *1 (W.D. Mich. May 1, 2015). In the instant case, because both sides submitted evidence regarding this issue, the Court (with the consent of both sides) has converted defendants’ motion into a summary judgment motion under Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, defendants’ motion is granted, and the case is dismissed.
Marcus alleges that, on the morning of January 21, 2012, he was driving near Huntington, NY, when his car was negligently struck by a postal van driven by defendant Reade. (Compl. ¶ 20.) Plaintiff alleges that Reade was operating the postal van on behalf of the USPS as part of his employment duties. (Id. ¶¶ 15-16.) Plaintiff alleges that because of the negligence of defendants, he suffered serious personal injuries requiring extensive medical care and ongoing treatment. (Id. ¶¶ 26-27.)
B. Procedural History
Plaintiff commenced this action on January 15, 2014. Defendants moved to dismiss on January 16, 2015. Plaintiff filed his opposition to the motion on March 12, 2015, and defendants filed their reply on May 12, 2015. The Court heard oral argument on the motion on May 18, 2015. The Court has fully considered the submissions of the parties.
II. Standard of Review
The standard for summary judgment is well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). The moving party bears the burden of showing that he is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The court “‘is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.’” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).
Once the moving party has met its burden, the opposing party “‘must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (alteration and emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. at 249–50 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties alone will not defeat an otherwise properly supported motion for summary judgment.” Id. at 247–48 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth “‘concrete particulars’” showing that a trial is needed. R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). ...