Collins v. U.S. Postal Serv.

462 F.Supp.3d 231

Michael COLLINS, Plaintiff,

v.UNITED STATES POSTAL SERVICE, United States of America, and Michael R. Scholl, Defendants.

18-cv-4752 (SJF) (ARL)

United States District Court, E.D. New York.

Signed May 26, 2020

Giulia R. Marino, Marino & Marino, P.C., Great Neck, NY, for Plaintiff.

James H. Knapp, United States Attorneys Office, Central Islip, NY, for Defendant United States Postal Service.

Megan Jeanette Freismuth, James H. Knapp, United States Attorneys Office, Central Islip, NY, for Defendant United States of America.

MEMORANDUM & ORDER

FEUERSTEIN, District Judge:

Plaintiff Michael Collins ("Plaintiff" or "Collins") commenced this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., against the United States Postal Service ("USPS"), United States of America, and Michael R. Scholl ("Scholl") (collectively, "Defendants") seeking to recover damages as a result of an accident involving Plaintiff and a USPS tractor trailer driven by Scholl. Currently before the Court is Defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(1) and Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. See Docket Entry ("DE") [29]. Plaintiff has opposed the motion. For the reasons set forth herein, the motion is granted.

I. BACKGROUND

A. Factual Allegations

The following facts are taken from the complaint ("Compl."), DE [1], and are assumed to be true for purposes of this motion. On October 25, 2017 at approximately 5:04 a.m., Collins, a pedestrian, was struck by a USPS tractor trailer driven by Scholl, a USPS employee. The accident occurred on East Jericho Turnpike, approximately one-hundred feet east of Melville Road, in Huntington, New York. Collins suffered a serious injury as defined by New York Insurance Law § 5102. As a result of Defendants’ negligence, Plaintiff suffered internal and external injuries, and "said injuries are permanent, lasting and disabling all to him damage in sum of TEN MILLION ($10,000,000) DOLLARS." Complaint, ¶24. This amount is alleged to be his actual damages. Id. , Wherefore Cl., ¶A.

On or before December 29, 2017, Plaintiff filed a claim with the USPS pursuant to 28 U.S.C. § 2675(a), dated December 15, 2017, against the USPS and Scholl. Kimberly Herbst is identified as the Tort Claim Examiner on Plaintiff's claim. The complaint alleges that more than six months have passed since the claim was filed, the claim has not been disposed of by the USPS, and "the action is timely commenced pursuant to 28 U.S.C. §§ 2401 and 2675(a)." Compl. ¶10.

B. Administrative & Procedural History

The following facts are taken from the complaint and from the materials submitted on the motion.¹ The USPS National Tort Center ("USPS-NTC") received Plaintiff's claim, submitted on a Standard Form 95 ("SF95" or the "claim"), on December 29, 2017. Herbst Decl. ¶3. In response to question 10 on the SF95 regarding the nature and extent of the injury forming the basis of the claim, Plaintiff responded "fractured left knee; 6 rib fractures (3 front, 3 back); left elbow, exposed bone and/or fracture; head; chest, including chest infection; equilibrium issues; blood infection; as of 12/15/17, claimant is in hospital/ICU." SF95, Herbst Decl. Ex. A. The SF95 was submitted with a cover letter dated December 15, 2017 from Plaintiff's attorney, Salvatore R. Marino, stating that "attached are medical bills for Mr. Collins, and please note that he is currently in the hospital/ICU treating for his injuries." Herbst Decl., Ex. B. The medical bills totaling $42,785.92 are not itemized and do not indicate any specific services rendered. Supp. Knapp Decl., Ex. G.

On January 8, 2018, Herbst sent a letter to Marino acknowledging Plaintiff's claim and advising counsel that the USPS has six months from December 29, 2017 to adjudicate the claim. Herbst Decl., Ex. C. This letter did not request additional documentation, but rather stated that "[s]hould you have any additional information you wish to submit that would be helpful in the review of this matter, please forward same" to Herbst at the USPS-NTC. Id. "Between February 13, 2018 and July 30, 2018, the USPS-NTC had several discussions with and sent letters to plaintiff's attorneys regarding the need for medical documentation needed in order to fully evaluate plaintiff's claim." Herbst Decl., ¶6. No details of these discussions are provided, but several letters have been submitted and are discussed below.²

On February 28, 2018, Plaintiff's counsel provided the USPS-NTC with a HIPAA authorization for Huntington Hospital "to obtain Claimant's medical records" and a bill from Huntington Hospital in the amount of $65,015.76. Marino Decl., Ex. 2 ("Pl. 2/28/18 ltr."). This letter further states that "once this firm receives more items/information that can assist you in your evaluation (such as further medical records), then we will forward them to you as well." Id. The bill covers the service dates of October 25-30, 2017.

On April 3, 2018, Plaintiff's counsel provided the USPS-NTC with medical records from Huntington Hospital covering the period of Collins’ initial hospitalization, October 25-30, 2017. Marino Decl., Ex. 1 ("Pl. 4/3/18 ltr."). The letter states that counsel was "awaiting more records from this hospital and will forward these to you upon receipt." Id.

On June 12, 2018, Herbst wrote to Plaintiff's counsel advising that she had had the opportunity to review the claim and documentation from the October 2017 hospitalization, and found that, in order to properly evaluate the claim, additional documentation was needed. Knapp Decl., Ex. E ("USPS 6/12/18 ltr"). Specifically, she asked counsel to provide "the ambulance report, complete records from the hospitalization, and records for treatment Mr. Collins received after 10/30/2017 along with all medical billings, no fault payment log, and documentation regarding any outstanding liens." Id.

By letter dated June 19, 2018, Plaintiff's counsel responded to the USPS-NTC's June 12^th letter. Knapp Decl., Ex. F ("Pl. 6/19/18 ltr."). Regarding the document request, counsel stated that "we have sent you full medical records from Mr. Collins’ first hospitalization at Huntington Hospital (10/25/17 – 10/30/17), which includes the ambulance report," referenced the $65,000+ bill for this time period sent in February 2018, and noted that Plaintiff was not receiving No Fault benefits. Id. Counsel further identified five (5) additional medical providers for which counsel was "awaiting records and medical bills," noted that he was awaiting records from Huntington Hospital for an additional admission period of November 12, 2017 to December 26, 2017, and advised that Plaintiff "is currently readmitted to Huntington Hospital to treat an infection stemming from the surgery he had on his left knee as a result of this accident." Id.

The June 19, 2018 letter from Plaintiff's counsel also enclosed a supplement to his response to question 10 on the SF95, noting that as they were awaiting "an abundance of medical records, we reserve the right to further supplement this claim." Pl. 6/19/18 ltr. The supplement set forth the following items constituting "the nature and extent of" the injuries forming the basis of the claim:

• Closed non-displaced fracture of femoral condyle;

• 10/26/17: Open reduction and internal fixation of the left femoral condyle;

• Acute fractures of the left second and third ribs anteriorly; • Acute fractures of the left fourth and fifth ribs segmentally, posteriorly and anteriorly, with the posterior fracture fragments mildly comminuted and overriding;

• Acute fractures of the left sixth rib posteriorly;

• Impacted fractures of the anterior right third and fourth ribs;

• Compression fracture within the T7 vertebral body, with loss of 50% of vertebral body height; [and]

• Pneumothorax.

Id.

As of July 30, 2018, Plaintiff's counsel had provided "medical records and billing from Huntington Hospital covering treatment plaintiff received only during October, 2017, but no records or billings for plaintiff's subsequent treatment." Herbst Decl., ¶6. On August 22, 2018, Plaintiff commenced the instant action.

Upon receiving notice that the suit was filed, the USPS-NTC denied Plaintiff's claim by letter dated September 12, 2018. Herbst Decl. ¶8; id. Ex. D ("Denial Letter"). The Denial Letter addressed to Plaintiff's counsel states that "[d]espite our discussions regarding additional treatment your client received beyond his initial hospitalization, you refused to provide records for the additional treatment. As such, due to your failure to submit competent evidence of your client's injuries and damages as is required, the above-referenced administrative claim is hereby denied." Denial Letter. It additionally advised Plaintiff of the right to commence suit in United States District Court and the right to seek reconsideration of the claim with the USPS-NTC. Plaintiff did not seek reconsideration of the denial with the agency. Herbst Decl. ¶9.

This case initially proceeded to discovery, but was stayed at Defendants’ request in anticipation of the filing of the instant motion. Defendants now seek dismissal, claiming that the Court does not have subject matter jurisdiction in light of Plaintiff's failure to adequately present his claim for review at the administrative level.

II. LEGAL STANDARDS

A. Motion to Dismiss Standards

"If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss an action." FED. R. CIV. P. 12(h)(3). Defendants move to dismiss for lack of subject matter jurisdiction under Rule 12(h)(3) and Rule 12(b)(1) of the Federal Rules of Civil Procedure. Motions brought pursuant Rule 12(b)(1) and Rule 12(b)(1) are subject to the same standards. See, e.g., Greystone Bank v. Tavarez, No.09-CV-5192, 2010 WL 3325203, at *1 (E.D.N.Y. Aug. 19, 2010) ("Except for the pre-answer limitation on Rule 12(b)(1) motions, the distinction between a Rule 12(b...