Am. United Transp. v. W. Reg'l Union

AMERICAN UNITED TRANSPORTATION INC., Plaintiff, v. WESTERN REGIONAL UNION and JESSICA BERGER, Defendants.

No. 21-CV-3985 (MKB)

United States District Court, E.D. New York

November 1, 2021

ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff commenced the above-captioned action on May 17, 2021 in Kings County Civil Court against Defendants Western Regional Union and Jessica Berger based on a motor vehicle accident that occurred on July 16, 2018, involving a vehicle owned by Plaintiff and a vehicle driven by Berger. (Summons and Compl., annexed to Def.'s Notice of Removal as Ex. A Docket Entry No. 1-1; United States' Mot. to Dismiss (“United States' Mot.”) 1, Docket Entry No 5.) Berger, an employee of the Federal Bureau of Investigation (“FBI”), was working in the scope of her employment at the time of the accident, ^[1] and as a result the United States was substituted for Berger as Defendant and removed the case to this Court pursuant to 28 U.S.C. § 1446, (Notice of Removal, Docket Entry No. 1).^[2] On August 27, 2021, the United States requested a pre-motion conference to address its anticipated motion to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (United States' Mot.) Plaintiff filed its opposition on September 3, 2021, (Pl.'s Mot. in Opp'n to United States' Mot. (“Pl.'s Opp'n”), Docket Entry No. 6). The Court advised the parties that unless either party objected, the Court would decide the merits of the motion based on their pre-motion submissions, and permitted the parties to submit supplemental filings. (Order dated Sept. 8, 2021.) The United States replied to Plaintiff's opposition on September 14, 2021, (United States' Reply in Supp. of United States' Mot. (“United States' Reply”), Docket Entry No. 7). Neither party has submitted any other supplemental briefings or objected to the Court deciding the merits of the motion based on the pre-motion submissions.

For the reasons set forth below, the Court grants the United States' motion, dismisses the Complaint against the United States, and remands the action against Western Regional Union to Kings County Civil Court.

I. Background

The Court assumes the truth of the factual allegations in the Complaint for the purposes of this Memorandum and Order.

Plaintiff alleges that on or about July 16, 2018, it was involved in a motor vehicle accident in Brooklyn, New York that resulted from the “negligent operation of the [United States'] motor vehicle.” (Compl.) Plaintiff seeks $2, 409.05 with interest from the date of the accident for property damage and loss of use. (Id.)

II. Discussion

a. Standard of review

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court “lacks the statutory or constitutional power to adjudicate it.” Huntress v. United States, 810 Fed.Appx. 74, 75 (2d Cir. 2020) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova, 201 F.3d at 113); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (per curiam) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)). “‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of [the] plaintiff,' but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted) (first quoting Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); and then quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)), aff'd, 561 U.S. 247 (2010). Ultimately, “the party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.'” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova, 201 F.3d at 113); see also Suarez v. Mosaic Sales Sols. U.S. Operating Co., 720 Fed.Appx. 52, 53 (2d Cir. 2018) (citing Morrison, 547 F.3d at 170); Clayton v. United States, No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020) (quoting Tandon, 752 F.3d at 243); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon, 369 F.Supp.3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon, 752 F.3d at 243). b. The Court lacks subject matter jurisdiction over Plaintiff's claims against the United States

The United States argues that Plaintiff has conflated the FTCA's administrative exhaustion requirement, which is jurisdictional and cannot be waived, with the FTCA's filing deadline, which is non-jurisdictional and subject to equitable tolling. (United States' Reply 2.) The United States also argues that Plaintiff should have known that the accident involved an FBI agent because days after the vehicle accident, an FBI Special Agent interviewed the driver of the vehicle registered to Plaintiff, identifying herself in the process and “the nature of the interview.” (United States' Reply 3; Decl. of Spencer Lucas (“Lucas Decl.”) ¶ 2, annexed to United States' Reply, Docket Entry No. 7-1.)

Plaintiff has not alleged any facts suggesting that it complied with the exhaustion requirements and instead argues that the Court should apply equitable tolling, as Plaintiff has exercised due diligence in pursuing and preserving its claim. (See generally Compl.; Pl.'s Opp'n.) In addition, Plaintiff contends that it should now be permitted to file an administrative claim with the appropriate agency.^[3] (Id.)

The United States is generally immune from suit. See Cooke v. United States, 918 F.3d 77, 81 (2d Cir. 2019) (“The United States, as sovereign, is immune from suit unless it waives immunity and consents to be sued.”), cert. denied, 139 S.Ct. 2748; see also United States v. Bormes, 568 U.S. 6, 9 (2012) (“Sovereign immunity shields the United States from suit absent a consent to be sued that is ‘unequivocally expressed.'” (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34 (1992))).

Under the FTCA, a plaintiff may bring a tort suit against the United States under certain circumstances. See Cooke, 918 F.3d at 81 (“One such ‘limited waiver' of [the United States'] sovereign immunity is provided by the FTCA, which ‘allows for a tort suit against the United States under specified circumstances.'” (quoting Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007))); Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008) (“In the FTCA, Congress waived the United States' sovereign immunity for claims arising out of torts committed by federal employees.”).

“Prior to filing an FTCA action, a plaintiff must exhaust administrative remedies, which include presenting the claim to the appropriate federal agency.” Yunkeung Lee v. United States, 570 Fed.Appx. 26, 27 (2d Cir. 2014) (citing 28 U.S.C. § 2675(a)); see DeBoe v. Du Bois, 503 Fed.Appx. 85, 89 (2d Cir. 2012) (affirming the district court's finding that it lacked subject matter jurisdiction over the plaintiff's claim because the plaintiff failed to exhaust his administrative remedies under the FTCA by filing a complaint with the appropriate federal agency) (citing Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 720 (1998)); see also Millares Guiraldes de Tineo, 137 F.3d at 720 (“In sum, the United States has not consented to be sued on a tort claim unless the claim was first presented to the appropriate federal agency in writing, was so presented within two years after the claim accrued, and specified the amount of the claim in writing.”). “[A]n administrative claim must be filed with the responsible federal agency within two years of a plaintiff's alleged injury.” Torres v. United States, 612 Fed.Appx. 37, 39 (2d Cir. 2015); see Phillips v. Generations Fam. Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013) (“Under the FTCA, before a claimant can file suit, he or she must first present the claim to the appropriate federal agency . . . within two years of the date the claim accrued.” (citing 28 U.S.C. § 2401(b))). A “claimant can only initiate his or her lawsuit once the claim has been denied by the agency (or if the agency has failed to make a decision within six months after the claim was filed).” Phillips, 723 F.3d at 147; see Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (“The FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court.”). “Because this presentment requirement serves to ease court congestion and to permit expeditious settlement without ‘costly and timeconsuming litigation,' the claimant must provide the agency with enough information to permit it ‘to conduct an investigation and to estimate the claim's worth.'” Yunkeung Lee, 570 Fed.Appx. at 27 (first quoting McNeil v. United States, 508 U.S. 106, 111-12 (1993); and then quoting Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998)).

“This [exhaustion] requirement is jurisdictional and cannot be waived.” Celestine, 403 F.3d at 82 (citing McNeil, 508 U.S. at 113); see Collins v. United States, 996 F.3d 102, 109 (2d Cir. 2021) (“The FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court. This requirement is jurisdictional and cannot be waived.” (quoting Celestine, 403 F.3d at 82)); Hollis Care Grp. Inc. v. U.S. Small Bus. Admin, 848 Fed.Appx. 483, 484 (2d Cir. 2021) (“First, to the extent [p]laintiffs pled the necessary elements of fraud and negligent supervision under New York law,...