Mahmoud v. United States

MUNTHER MAHMOUD, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

18-CV-00485-JLS-MJR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

FILED: April 6, 2021

April 5, 2021

REPORT AND RECOMMENDATION

INTRODUCTION

This case has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) by the Honorable John L. Sinatra, Jr. for all pre-trial matters, including preparation of a report and recommendation on dispositive motions.¹ Before the Court is a motion to dismiss Plaintiff's claims brought by Defendant United States of America (the "Government") pursuant to Fed. R. Civ. P. 12(h)(3). (Dkt. No. 130). For the reasons outlined below, this Court recommends that the District Court grant the Government's motion to dismiss.

BACKGROUND and PROCEDURAL HISTORY

The Court assumes familiarity among the parties with the case and its procedural history. Therefore, only the relevant facts and history are outlined here. For a broader review of the facts and allegations contained in Plaintiff's Second Amended Complaint (Dkt. No. 71), the Court refers to its previous Report & Recommendation entered on March 12, 2020. (Dkt. No. 116). That Report & Recommendation addressed motions todismiss brought by Defendants Diana Miller-Jones, Akima Logistics Services, LLC, Akima Global Services, LLC, and the United States of America. (Id.). Therein, this Court recommended dismissal of Plaintiff's claims against all Defendants, with the exception of Plaintiff's claims of negligent medical treatment against the Government under the Federal Tort Claims Act ("FTCA"). (Id.). On July 10, 2020, the District Court issued a Decision and Order adopting this Court's recommendations over the objections of Plaintiff and dismissing all causes of actions except Plaintiff's medical negligence claims. (Dkt. No. 126).

Following the District Court decision on Defendants' motions, the Government filed the instant motion to dismiss on November 9, 2020. (Dkt. No. 130). The grounds for this motion were set out in the Government's supporting memorandum and the declaration of Jeannette Litz, a paralegal specialist employed by the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Office of the Principal Legal Advisor, District Court Litigation Division. (Dkt. Nos. 131, 134, 135). At this time, the Government seeks dismissal of Plaintiff's remaining claims of negligence in the provision of medical care on the grounds that the Court lacks subject matter jurisdiction over said claims. (Id.). On December 4, 2020, Plaintiff requested an extension of time to respond to the motion. (Dkt. No. 137). An extension was granted by text order. (Dkt. No. 138). However, Plaintiff failed to file a response in opposition to the motion. The Government filed a Notice of No Reply in light of Plaintiff's non-response. (Dkt. No. 139). On February 9, 2021, the Court heard oral argument on the motion and deemed the matter submitted.

DISCUSSION

Standard of Review

As a threshold matter, a court must determine whether it has subject matter jurisdiction over a plaintiff's claims. Foster-Bey v. Potter, 296 F. Supp. 2d 195, 201 (D. Conn. 2003). Under Fed. R. Civ. P. 12(h)(3), a party may bring a motion challenging the federal court's subject matter jurisdiction at any time. See Sit N' Stay Pet Servs. V. Hoffman, 17-CV-116, 2017 U.S. Dist. LEXIS 143206, at *4 (W.D.N.Y. Sept. 5, 2017). Generally, motions brought pursuant to Rule 12(h)(3) are subject to the same standard as motions to dismiss for want of subject matter jurisdiction brought pursuant to Rule 12(b)(1). See Canadian St. Regis Band of Mohawk Indians v. New York, 388 F. Supp. 2d 25, 29 (N.D.N.Y. 2005).

A claim 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). The plaintiff bears the burden of "showing by a preponderance of the evidence that subject matter jurisdiction exists." APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003). In turn, "a motion to dismiss for want of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) is reviewed under the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Pennacchio ex rel. Old World Brewing Co., Inc. v. Powers, 05-CV-0985, 2007 U.S. Dist. LEXIS 8051, at *6 (E.D.N.Y. Feb. 5, 2007). A court must accept as true all material factual allegations in the complaint, but "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Acourt may refer to evidence outside the pleadings when resolving questions of jurisdiction under Rule 12(b)(1). See Luckett v. Burre, 290 F.3d 493, 496-97 (2d. Cir. 2002) (citations omitted).

Plaintiff's Lack of Opposition to Motion

As a starting point, although the Government's motion to dismiss is unopposed, the Court must still consider the motion on its merits. Courts are generally prohibited from granting a motion to dismiss solely because the plaintiff failed to respond. See McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir.2000) ("If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal."); see also James v. John Jay College of Crim. Justice, 776 Fed. Appx. 723, 724 (2d Cir. 2019) (summary order) (explaining that a plaintiff's lack of opposition to a motion to dismiss does not, without more, justify dismissal). However, the Court notes that during oral argument on this motion, Howard R. Greenwald, Esq., an attorney appearing on behalf of Plaintiff,² suggested that he did not oppose the motion. Mr. Greenwald made statements on the record to the effect that he did not file any opposition because he believed the grounds for the motion are correct. Mr. Greenwald further explained that Plaintiff maintains a related action in the District Court for the Eastern District of New York, and that he was considering discontinuing this action in favor of that case. Since that time, no stipulation of discontinuance has been filed. In the interest of justice and because Plaintiff has not formally consented to dismissal, the merits of the Government's motion are addressed as follows.

Subject Matter Jurisdiction

Absent a waiver, sovereign immunity shields the federal government and its agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988); Federal Housing Admin. v. Burr, 309 U.S. 242, 244 (1940)). Sovereign immunity is jurisdictional in nature. Meyer, 510 U.S. at 475. Indeed, the "terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit." Id. (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941); see also United States v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction"). A waiver of the federal government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied. See Lane v. Pena, 518 U.S. 187, 192 (1996).

Plaintiff's claims against the United States in this action are brought pursuant to the Federal Tort Claims Act. (Dkt. No. 71, ¶ 1). In 1946, Congress enacted the FTCA, which "constitutes a limited waiver by the United States of its sovereign immunity and allows for a tort suit against the United States under specified circumstances." Liranzo v. United States, 690 F.3d 78, 84-85 (2d Cir. 2012). The relevant section of the FTCA provides that

the district courts [...] shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages [...] for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). The FTCA is a limited waiver of the government's sovereign immunity. See Hall v. United States Gen. Servs. Admin., 825 F. Supp. 427, 429 (D.N.H. 1993). Therefore, the terms and conditions of the FTCA set the boundaries of subject matter jurisdiction for courts in entertaining tort suits against the United States. Id. (citing Soriano v. United States, 352 U.S. 270 (1957)). The United States' waiver of immunity under the FTCA "is to be strictly construed in favor of the government." Liranzo, 690 F.3d at 84 (citing Long Island Radio Co., v. NLRB, 841 F.2d 474, 477 (2d Cir. 1988).

Importantly, "[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies." McNeil v. United States, 508 U.S. 106, 113 (1993). Specifically, the FTCA includes the following presentment requirement:

an action shall not be instituted upon a claim against the United State for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claims shall have been finally denied by the agency [...].

28 U.S.C. § 2675(a). A tort claim against the United States "shall be forever barred" unless it is timely presented to the appropriate federal agency. See 28 U.S.C. § 2401(b) (a claim is barred "unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months...