Hardie v. United States

501 F.Supp.3d 152

Delroy HARDIE, Plaintiff,

v.The UNITED STATES of America, Defendant.

No. 1-19-cv-4318 (ENV) (RML)

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

Signed October 28, 2020

Filed November 17, 2020

Jason A. Linden, Linden Law LLC, Adam J. Roth, Law Offices of Adam J. Roth, New York, NY, for Plaintiff.

Dara A. Olds, United States Attorney's Office Eastern District of New York, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

VITALIANO, D.J.

Delroy Hardie filed this action against the United States, grounding his right to bring his claims on the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1), and seeking recovery under theories of negligence and respondeat superior. See Dkt. 1 ("Compl."). The government has moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. 19 ("Motion to Dismiss"). For the reasons set forth below, the motion is granted in its entirety.

Background

Hardie claims damages for injuries allegedly sustained from a motor vehicle collision on March 6, 2015, caused, he alleges, by United States Postal Service ("USPS") employee Roberto Richards. Compl. ¶ 1. On April 8, 2016, Hardie filed a claim with USPS, submitting a "Standard Form 95" ("SF 95"), the normal complaint form used by USPS, along with a police report and a four-page operative report of a surgery he underwent. See Hardie v. United States , No. 17-CV-01201 (FB) (RLM), 2018 WL 5268112, at *2 (E.D.N.Y. Oct. 23, 2018) (" Hardie I ").¹ The SF-95 noted $20,000,000 in personal injury damages, listed a variety of injuries, and referred to the police report for a description of the accident. See Dkt. 21-1 at 2. The police report diagrammed how the cars collided but did not speak to any injuries sustained by either driver. Id. at 4-5. The report on Hardie's surgery, however, did describe in detail an operation on July 9, 2015, involving his L3-L4 discs, additionally noting his "disabling low-back pain" and the failure of "conservative care" to remedy his pain prior to the surgery. Dkt. 24-3 at 25-29.

USPS responded on May 5, 2016, requesting "competent evidence" to substantiate Hardie's claim before it could be assessed. Dkt. 21-2. The letter directed Hardie to a portion of the SF 95's instructions that reads:

In support of the claim for personal injury or death, the claimant should submit a written report by the attending physician, showing the nature and extent of injury, the nature and extent of treatment, the degree of permanent disability, if any, the prognosis and the period of hospitalization or incapacitation, attaching itemized bills for medical, hospital, or burial expenses actually incurred.

Id.; see also Dkt. 21-1 at 3. Almost a year later, on February 2, 2017, USPS followed-up on its prior letter, notifying Hardie that his claim would be denied if he did not provide USPS with the requested documentation. Dkt. 21-3. On March 23, 2017, USPS denied Hardie's claim. Dkt. 21-1 at 2.

With the denial from USPS in hand, Hardie proceeded to file his tort claims in this District on March 2, 2017. On October 23, 2018, Judge Block dismissed the complaint without prejudice on the ground that Hardie's May 5, 2016 submission to USPS did not satisfy the FTCA presentment requirement found in 28 U.S.C. § 2675. Hardie I, 2018 WL 5268112, at *2. Judge Block noted that "[t]he dismissal is without prejudice because Hardie has sixty days to properly present his claims to the agency following dismissal," id. at *2 n.3 (citing 28 U.S.C. § 2679(d)(5) ), and Hardie attempted to do so on November 30, 2018. Having been filed more than three-and-a-half years after the accident, USPS promptly denied his re-presented claim as untimely on December 27, 2018. Compl. ¶¶ 10-11; see also Dkt. 1-2.

Hardie filed the instant suit on July 26, 2019. The government filed its motion to dismiss on April 10, 2020, arguing that Hardie failed to satisfy the FTCA's presentment requirement within the statutorily prescribed two-year period following the date of accrual. Dkt. 19-1 ("Def's Mem.") at 1.

Legal Standard

The government's motion to dismiss Hardie's complaint requires its legal sufficiency to be assessed in two steps. The first tests, as provided under Rule 12(b)(1), the presence of federal subject matter jurisdiction based on the sufficiency of Hardie's administrative presentment. See Celestine v. Mount Vernon Neighborhood Health Ctr. , 403 F.3d 76, 82 (2d Cir. 2005). The second tests, as provided under Rule 12(b)(6), the sufficiency of Hardie's claim in light of the relevant limitations period. See United States v. Kwai Fun Wong , 575 U.S. 402, 420, 135 S. Ct. 1625, 1638, 191 L. Ed. 2d 533 (2015).

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). A district court may reference evidence outside the pleadings in reviewing subject matter jurisdiction, and plaintiff must prove such jurisdiction exists by a preponderance of the evidence. Id. As with a 12(b)(6) motion, we "accept[ ] all material facts alleged in the complaint as true and draw[ ] all reasonable inferences in the plaintiff's favor." McGowan v. United States , 825 F.3d 118, 125 (2d Cir. 2016) (quoting Liranzo v. United States , 690 F.3d 78, 84 (2d Cir. 2012) ).

To stave off dismissal under Rule 12(b)(6), the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ). On a Rule 12(b)(6) motion, a court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co. , 517 F.3d 104, 115 (2d Cir. 2008). In deciding a Rule 12(b)(6) motion, a court may consider documents that are attached to or referenced in the complaint, documents that the plaintiff relied on in bringing suit, and matters of which judicial notice may be taken. Chambers v. Time Warner, Inc. , 282 F.3d 147, 153 (2d Cir. 2002).

Discussion

The Federal Tort Claims Act provides the exclusive remedy for personal injury or loss of property resulting from the negligence or wrongful act or omission of any employee of the United States while acting within the scope of his office or employment, waiving the sovereign immunity of the United States for these certain classes of tort actions. 28 U.S.C. § 1346(b)(1). When the United States waives its sovereign immunity and consents to suit, "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Soriano v. United States , 352 U.S. 270, 276, 77 S. Ct. 269, 273, 1 L. Ed. 2d 306 (1957) ; see also Liranzo v. United States , 690 F.3d 78, 84 (2d Cir. 2012).

Printed, metaphorically, in bold, large black-letter type is a procedural precondition that every FTCA claimant first present his or her claim to the appropriate federal agency, which is given an opportunity to first grant or deny the claim. 28 U.S.C. § 2675(a) ("An action shall not be instituted ... [u]nless 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 and sent to him by certified or registered mail."); Latimore-El v. Doe , No. 12-CV-0621 (ENV), 2012 WL 2131539, at *1 (E.D.N.Y. June 12, 2012). This administrative exhaustion requirement is jurisdictional and cannot be waived. See Celestine v. Mount Vernon Neighborhood Health Ctr. , 403 F.3d 76, 82 (2d Cir. 2005) (citing McNeil v. United States , 508 U.S. 106, 113, 113 S. Ct. 1980, 1984, 124 L. Ed. 2d 21 (1993) ). In addition, a plaintiff's administrative claim must be presented "within two years after such claim accrues," or, alternatively, he must have commenced his action "within six months after the date of mailing ... of notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b) ; see also Sash v. Fed. Bureau of Prisons , No. 1:04-CV-02106 (ENV) (LB), 2007 WL 9752785, at *4 (E.D.N.Y. Sept. 20, 2007).² In the absence of such compliance with the FTCA's pleading requirements, a district court has no subject matter jurisdiction over the claim. Wyler v. United States , 725 F.2d 156, 159 (2d Cir. 1983). The burden is on plaintiff to demonstrate subject matter jurisdiction in compliance with the FTCA's requirements. In re Agent Orange Prod. Liab. Litig. , 818 F.2d 210, 214 (2d Cir. 1987).

The government contends that plaintiff's initial filing with USPS failed to provide information sufficient to satisfy the FTCA presentment requirement within the two-year window and that any filing outside that window is invalid. Plaintiff rejects this and adds that even if his first filing was inadequate, his claims should nonetheless be deemed timely under the Westfall Act's savings clause or the application of equitable tolling principles.

I. Claim Presentment

Hardie's pleadings establish that his claim "accrued" on March 6, 2015, giving him until March 6, 2017, to satisfy the FTCA presentment requirement. 28 U.S.C. § 2401 ("A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues ..."). Hardie first attempted to present his claim to USPS on April 8, 2016. After the presentment was rejected as insufficient by both USPS and Judge Block, Hardie re-presented his claim on November 30, 2018. Because the November 30, 2018 presentment was untimely, only Hardie's April 8, 2016 presentment is eligible to satisfy the two-year presentment requirement.³

However harsh it might seem at times,...