Opinion
Nos. C 02-2331 JL, C 00-4413 JL
August 15, 2002
DISMISSAL
INTRODUCTION
Defendant's motion to dismiss the complaint of Plaintiff Brauho Gaona ("Plaintiff") came on for hearing August 14, 2002. Appearing for Plaintiff was Mathew D. Haley, HALEY LAW OFFICES. Appearing for Defendant was Patricia J. Kenney, Assistant U.S. Attorney.
CHRONOLOGY
November 24, 1998 — Plaintiff, an employee of Modern Mail, was making a delivery, slipped and injured his knee and arguably his neck and back at the Civic Center Post Office, Oakland. He alleges Postal Service employees were negligent because it was raining, water pooled on the marble tiled floor, making it slippery and they failed to put down a mat, resulting in Plaintiffs fall. November 24, 2000 — Plaintiff filed his administrative claim with U.S. Postal Service November 27, 2000 — State Compensation Insurance Fund ("SCIF") filed C-00-4413 JL. SCIF is the workers compensation carrier for Plaintiffs employer, Modern Mail. SCIF paid benefits to Plaintiff after his injury. November 27, 2000 — Plaintiff filed C-00-4415 PJH. March 30, 2001 — Plaintiff voluntarily dismissed 00-4415 and dismissal without prejudice was entered by Judge Hamilton. July 27, 2001 — Defendant denied Plaintiffs administrative claim. May 14, 2002 — Plaintiff filed C-02-2331 WDB. June 13, 2002 — This court issued a Related Case Order relating all three cases (00-4413, 00-4415, and 02-2331)
APPLICABLE LAW
Rule 12(b)(1) and (2), Fed.R.Civ.P. provide as a defense to an action that the court lacks either subject matter jurisdiction or jurisdiction over a party. Defendant moves to dismiss on the grounds that:1) Plaintiff improperly sued the U.S. Postal Service instead of the United States.
Prior to the Postal Reorganization Act, the U.S. Postal Service was a federal agency and could not be sued directly:
"We should first note that suit under the Federal Tort Claims Act lies here, if at all, only against the United States. Neither the Postal Service nor the Postal Inspection Service, named as defendants, may be sued directly on claims brought under 28 U.S.C. s 1346(b). McNair v. U.S. Postal Service 446 F. Supp. 1156, 1157 (D.C.Cal., 1978)
The U.S. Supreme Court has ruled that, since enactment of the Postal Reorganization Act, the U.S. Postal Service has limited sovereign immunity:
"By launching the Service into the commercial world and including a sue-and-be-sued clause in the Postal Reorganization Act, Congress removed the Service's cloak of sovereignty and gave it the status of a private commercial enterprise." Loeffler v. Frank, 486 U.S. 549, 549, 108 S.Ct. 1965, 1966) (1988)
However, the Postal Service still enjoys the sovereign immunity encompassed in the FTCA:
"Sue and be sued" language of Postal Service's charter should not be interpreted to enlarge waiver of sovereign immunity specified by Federal Tort Claims Act. 39 U.S.C.A. §§ 401, 409(c); 28 U.S.C.A. § 1346(b). Pereira v. U.S. Postal Service, 964 F.2d 873 (9th Cir. 1992)
Plaintiff has an obligation to establish the district court's jurisdiction (for example through the FTCA). 39 U.S.C.A. § 409(a). In order to establish jurisdiction over the U.S. Postal Service, Plaintiff must serve the United States:
(b) Unless otherwise provided in this title, the provisions of title 28 relating to service of process, venue, and limitations of time for bnnging action in suits in which the United States, its officers, or employees are parties, and the rules of procedure adopted under title 28 for suits in which the United States, its officers, or employees are parties, shall apply in like manner to suits in which the Postal Service, its officers, or employees are parties. 39 USCA § 409(b).
Under the liberal provisions of Fed.R.Civ.P. Rule 15, Plaintiff could amend his complaint to add the United States, since the Government has actual notice of his lawsuit through service on the U.S. Attorney and does not indicate any prejudice resulting from the improper service. However, there are other problems with Plaintiffs lawsuit.
2) Plaintiff filed his second complaint more than six months after his administrative claim was denied.
Even if Plaintiff had properly served the United States, this court would still not have subject matter jurisdiction over his lawsuit. Plaintiff claims that the statute of limitations is tolled by the relating back provisions of FRCP Rule 15. Plaintiff seeks to relate his most recent lawsuit to the timely filed lawsuit by SCIF. However, his most recent complaint does not relate back to SCIF's complaint for two reasons: first, because an amendment is distinguished from a separately filed claim, and second, because SCIF does not stand in the shoes of Plaintiff.
A separately filed claim does not relate back the way an amendment does: "[A] separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim." Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994). Further, equitable tolling could not apply to toll the period during which [a] prior complaint was pending when there is no evidence that [the] original pleading was in any way "defective" or that [plaintiff] had "been induced or tricked by [his] adversary's conduct into allowing the filing deadline to pass." See Irwin v. Department of Veterans' Affairs, 498 U.S. 89, 95-96 (1990).
Plaintiff filed his first complaint before the Postal Service denied his administrative claim, and voluntarily dismissed it when his former attorney realized it had been filed before Plaintiffs administrative remedies had been exhausted. There is no indication that Plaintiffs filing was defective or that he was induced or tricked into filing his first complaint. Therefore since his second complaint is a separate claim and not an amendment to a timely complaint, it cannot relate back.
Plaintiff argues in addition that his complaint should relate back to the complaint by SCIF and, therefore, the statute of limitations should be tolled because the workers' compensation carrier stands in his place in seeking to recover damages from the Postal Service, citing Wadsworth v. United States Postal Service, 511 F.2d 64 (7th Cir. 1975) ( Court permitted Insurer to amend complaint to add insured as party, more than six months after administrative claim was denied.)
The Wadsworth case is both factually and legally distinguishable from the case at bar. Here Plaintiff is attempting not to amend his complaint but to relate back his untimely-filed complaint to a separately filed and timely complaint by SCIF, as discussed above. Second, SCIF's complaint against the Postal Service is for money it paid to Plaintiff, not for Plaintiffs total damages, and therefore does not come under the FTCA.
In Shelton v. U.S., 615 F.2d 713 (6th Cir. 1980), the court held that a claimant's insurance company's claim for reimbursement of the amount it had paid claimant under his policy for lost wages did not constitute a claim for money damages of a "sum certain" so as to toll the FTCA statute of limitations. The court there observed:
The claims of an injured party and his insurance carrier are not always coextensive. An insurer's claim will never exceed that of the injured party; the injured party, however, often seeks recovery for damages not encompassed in the insurer's claim. This distinction is inherent in 39 C.F.R. § 912.6(D) which permits subrogees to present wholly compensated claims, but requires both insurers and injured parties to participate, either jointly or individually, in filing partially compensated claims . . . Indeed, in an accident case a plaintiff could be expected to seek damages for pain and suffering, medical bills, and injury to property as well as compensation for loss of wages. (Footnote omitted). Cizek v. U.S. 953 F.2d 1232, 1234 (10th Cir. 1992).
For the reasons stated above, Plaintiffs complaint should be dismissed with prejudice for lack of subject matter jurisdiction.
CONCLUSION
This court rules that Plaintiff has failed to establish subject matter jurisdiction in this court under the FTCA because he filed his first complaint less than six months after his administrative claim had been denied, and his second complaint more than two years after the cause of action accrued as well as more than six months after his administrative claim was denied. Plaintiffs complaint is dismissed with prejudice. Parties to bear their own costs.
IT IS SO ORDERED.