Ramirez v. United States

410 F.Supp.3d 824

Jessica RAMIREZ, Plaintiff,

v.The UNITED STATES of America, et al., Defendants.

Civil Action No. 1:19-CV-14

United States District Court, S.D. Texas, Brownsville Division.

Signed October 17, 2019

ORDER ADOPTING REPORT AND RECOMMENDATION

Fernando Rodriguez, Jr., United States District Judge

On July 31, 2019, the United States Magistrate Judge issued a Report and Recommendation (Doc. 14) recommending that the Government's Motion to Dismiss (Doc. 5) should be granted. No party objected to the Report and Recommendation.

After considering the Report and Recommendation and the applicable law, the Court ADOPTS the Report and Recommendation (Doc. 14). Accordingly, it is:

ORDERED that the Motion to Dismiss (Doc. 5) is GRANTED ;

ORDERED that any claims against Defendants Agent Manuel Antonio Fuentes and U.S. Customs and Border Protection are dismissed without prejudice for lack of jurisdiction; and

ORDERED that any claims made against Defendant United States of America are dismissed with prejudice as untimely filed.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Ronald G. Morgan, United States Magistrate Judge

On February 7, 2019, Plaintiff Jessica Ramirez, as representative of S.R. – her minor daughter – ("Plaintiff") filed a civil complaint against the United States ("the Government"), Agent Manuel Antonio Fuentes ("Fuentes"), and U.S. Customs and Border Protection ("CBP"). Dkt. No. 1. The complaint pertains to an automobile accident involving Fuentes, Ramirez, and her minor daughter. Ramirez has already reached a private settlement of her claim; this case solely concerns her daughter's claim. Plaintiff seeks relief pursuant to the Federal Tort Claim Act ("FTCA"). 28 U.S.C. § 2671.

On May 3, 2019, the Government filed a motion to dismiss the complaint, pursuant to Rules 12(b)(1) and 12(b)(6). Dkt. No. 5. More specifically, the Government seeks dismissal of the claims against Fuentes and CBP pursuant to Rule 12(b)(1) and dismissal of the claims against the Government pursuant to Rule 12(b)(6). Plaintiff filed a response, and the Government filed a reply. Dkt. Nos. 9-1, 10. The motion has been referred to the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(B).

After reviewing the record and relevant case law, it is recommended that the Government's motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6) be granted. The Plaintiff's claims against CBP and Fuentes should be dismissed without prejudice, for lack of jurisdiction. The Court should also dismiss the claim against the Government with prejudice, because the suit is untimely and equitable tolling is not otherwise appropriate.

I. Background

A. Factual Background

On January 26, 2016, Fuentes was driving his border patrol vehicle in the 6400 block of US Highway 281 in Brownsville, Cameron County, Texas. Dkt. No. 5-1, p. 4.

At approximately 9:04 a.m, Ramirez, and her minor daughter – as a passenger – were driving behind Fuentes's vehicle. Dkt. No. 5-1, p.4. Fuentes attempted to perform a sudden U-turn, bringing his vehicle to a stop in the process. Id. He failed to use his turn signals while attempting the U-turn. Id. Ramirez veered her vehicle to the right to avoid a collision with Fuentes' vehicle. Id. She was unable to avoid the collision and she struck Fuentes' vehicle. Id. Both Ramirez and her daughter suffered bodily injuries as a result of the collision. Id. at p. 1.

On May 12, 2017, Ramirez filed administrative claims under the FTCA against CBP for her and her daughter's injuries in the January 2016 accident. Dkt. 5-1. Ramirez hand delivered the claims via letter to CBP's office in Edinburg, Texas. Dkt. No. 9-1, p. 7 - 10. On May 15, 2017, Colin W. Maguire, an attorney with the Edinburg Office of the United States Customs and Border Protection, replied to Ramirez via letter, acknowledging the filing of her claim. Id. at p. 11 - 13.

On June 15, 2017, Ramirez delivered a second letter to CBP and included two copies of Form 95, "Claim for Damage, Injury, or Death." Dkt. No. 9-1, p. 14 - 19. One copy was for Ramirez's claim against CBP; the second copy was for Ramirez's minor daughter's claim against CBP. Id. Settlement negotiations ensued between the Government and Ramirez Id. at 2.

After negotiating for several months, settlements were reached regarding Ramirez's and her minor daughter's claims. Dkt. 9-1, p. 2. According to the agreement, Ramirez would receive a $50,000 settlement. Id. Her minor daughter, S.R., would receive $10,000. Id. In exchange, Ramirez and her daughter would release the Government from any liability. Id. Ramirez signed a release and received a check in the amount of $50,000. Id. However, because S.R. was a minor, the Government informed Plaintiff's counsel that the federal government would only be able to achieve a settlement through a "friendly lawsuit" Id. at p. 3.

In December 2017, Plaintiff's counsel informed Maguire that more than six months had passed since the filing of the daughter's claim with CBP, and that CBP had not yet denied the daughter's claim. Dkt. No. 9-1, p. 3. Plaintiff's counsel informed Maguire that CBP needed to deny the minor daughter's claims in order to file the "friendly lawsuit." Id. Plaintiff's counsel then asked Maguire about the statute of limitations regarding the claim. Id.

Maguire responded that CBP had a duty to dispose of the claim within six months of receiving the claim, and failure to do so meant that lawsuit could be filed at any time thereafter. Dkt. No. 9-1, p. 3. Maguire further explained that the normal statutory requirements – that the lawsuit be filed within six months after the claim was denied – no longer applied because of CBP's failure to dispose of the claims within six months. Id. Maguire then informed Plaintiff's counsel of the ruling in McCallister v. U.S., 925 F.2d 841, 842 (5th Cir. 1991). According to the Court's decision in McCallister, when CBP failed to dispose her claim within six months, the claim was deemed denied and, because of the deemed denial, Plaintiff was allowed to file suit "any time thereafter." Id.

On April 27, 2018, – eleven months after filing the minor daughter's claim with CBP and before any law suit under the FTCA had been filed – Ramirez received a letter from CBP denying the minor daughter's claim. Dkt. 9-1, p. 24-5. The letter was dated April 23, 2018. Id.

B. Procedural History

On February 7, 2019, Ramirez, as representative of her minor daughter, filed suit in this Court against the Government, CBP, and Fuentes. Dkt. No. 1. Plaintiff raised a claim of negligence pursuant to the FTCA. Id.

On May 2, 2019, Ryan K. Patrick, as United States Attorney for the Southern District of Texas and pursuant to 28 U.S.C. § 2679, certified that Fuentes was acting within the scope of his federal employment at the time of the collision that gave rise to the present case. Dkt. No. 5-4.

On May 3, 2019, the Government moved for dismissal for all claims alleged in Plaintiff's complaint. Dkt. No. 5. The Government argued that dismissal was appropriate for two reasons, which the Court restates as follows: (1) the claims against CBP and Fuentes must be dismissed because federal agencies and employees are immune from FTCA claims; and (2) the FTCA's statute of limitations bars the lawsuit against the Government. Id. at p. 4-6.

On June 14, 2019, the Court issued a show cause order for the Plaintiff to file, no later than June 24, 2019, a response to the motion to dismiss. Dkt. No. 8.

On June 24, 2019, Plaintiff filed a response brief. Dkt. No. 9-1. In that response, the Plaintiff's did not address the Government's argument that the Court lacks jurisdiction over the claims against CBP and Fuentes. Id. ¹

As to the Government's argument that the FTCA's statute of limitations bars this lawsuit, the Plaintiff argues that 28 U.S.C. § 2675 establishes that "if the government fails to make a final disposition of a claim within six months after it is filed, the claimant at any time thereafter, may deem the claim denied and file suit against the government." Dkt. 9-1, p. 4 (emphasis in the original). Despite the fact CBP administratively denied her claim, Plaintiff argues that the six-month statute of limitations to file suit in district court no longer applies to her claim because CBP did not dispose of her claim within six months of receiving it. Id. Plaintiff argues that the CBP's failure to dispose of S.R.'s claim within six months of it being filed with the agency, provided the Plaintiff with an "unlimited timeframe to file a lawsuit against the U.S." Id. at p. 5.

On June 25, 2019, the Government filed a reply brief. Dkt. No. 10. In its reply, the Government reiterated that the Plaintiff's tort claim should be dismissed because the suit was not filed within six months of CBP's administrative denial of the claim. Id. at p. 2.

II. Applicable Law

A. Jurisdiction and Dismissal under 12(b)(1)

The threshold question, before considering the substance of any claim, is whether the court possesses jurisdiction over each claim. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). This is the case, because federal courts are courts of limited jurisdiction, whose authority exists only within the boundaries established by Congress and the United States Constitution. Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714 (5th Cir. 2012). It is plaintiff's burden to prove jurisdiction. Id.

In determining whether jurisdiction exists, the Court may consider: "(1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001). In deciding a motion to dismiss, the Court must "accept as true any well-pleaded factual allegations," but does not accept the truth of "legal conclusions" or "naked assertion[s] devoid of further factual enhancement." Masel v. Villarreal, 924 F.3d 734, 743 (5th...