Opinion
No. 1-19-cv-4318 (ENV) (RML)
2020-10-28
Delroy HARDIE, Plaintiff, v. The UNITED STATES of America, Defendant.
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.
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 "). 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.
Hardie has included virtually no details in his complaint concerning his first administrative filing with USPS, which is essential background for this discussion insofar as it relates to the Court's jurisdiction. For those details, this order refers to: the first district court ruling, Hardie I , attached to the complaint; the documents attached in the initial USPS filing, provided here by plaintiff as an exhibit to his opposition brief, see Dkt. 20-1; and an un-redacted version of the four-page surgery report, within 150 pages of sealed medical records compiled by defendant also attached to the opposition brief, 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). 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).
A FTCA claim accrues "at the time the injury or harm is inflicted, or when the plaintiff knows both the existence and cause of his injury." Moreno-Ortiz v. United States , No. 05-CV-5901 (LTS) (DF), 2009 WL 455251, at *2 (S.D.N.Y. Feb. 24, 2009) (citing United States v. Kubrick , 444 U.S. 111, 120, 100 S. Ct. 352, 358, 62 L. Ed. 2d 259 (1979) ). In the instant case, the claim accrued March 6, 2015, the date of the accident. Correspondingly, plaintiff had until March 6, 2017, to present the claim pursuant to 28 U.S.C. § 2401(b), unless the time to bring the claim had been tolled, excepted by another provision of law, or otherwise equitably extended.
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.
As discussed infra , the lateness Hardie's November 30, 2018 presentment cannot be excused under the Westfall Act's savings clause or principles of equitable tolling.
However harsh it might seem at times, the two-year rule is not a simple arbitrary litigation cutoff. There is rhyme and reason to it, as it is important "to provide a procedure under which the government may investigate, evaluate and consider settlement of a claim." Keene Corp. v. United States , 700 F.2d 836, 842 (2d Cir. 1983). Pursuant to that design, Justice Department regulations require that "a claim shall be deemed to have been presented when a Federal agency receives from a claimant ... written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property." Mora v. United States , 955 F.2d 156, 160 (2d Cir. 1992) (alteration in original) (quoting 28 C.F.R. § 14.2(a) (1991) ). More specifically, "[i]n this Circuit, a Notice of Claim filed pursuant to the FTCA must provide enough information to permit the agency to conduct an investigation and to estimate the claim's worth." Romulus v. United States , 160 F.3d 131, 132 (2d Cir. 1998) (citing Keene Corp. v. United States , 700 F.2d 836, 842 (2d Cir. 1983) ). "A claimant must provide more than conclusory statements which afford the agency involved no reasonable opportunity to investigate." Id.
In keeping with this statutory purpose, "an administrative claim need not meet formal pleading requirements. All that is necessary is that a claim be specific enough to serve the purposes intended by Congress in enacting § 2675(a) —‘to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.’ " Johnson by Johnson v. United States , 788 F.2d 845, 848–49 (2d Cir. 1986) (quoting S. Rep. No. 1327, 89th Congress, 2d Sess. 2 (1966), reprinted in 1966 U.S. Code Cong. & Ad.News ("USCCAN") 2515, 2516); see also Palmer-Williams v. United States , No. 14-CV-9260 (CS), 2016 WL 676465, at *5 (S.D.N.Y. Feb. 18, 2016) ("Within this Circuit, courts have adopted a pragmatic approach when evaluating the completeness of purported SF 95 claim forms."), aff'd , 675 F. App'x 70 (2d Cir. 2017).
Not surprisingly, given the gravity of the government waiving its sovereign immunity and the incisiveness of the claim presentment inquiry, claim presentment is far more than a simple form exercise. Indeed, quite to the contrary, "the mere act of filing a SF 95 does not necessarily fulfill the presentment requirement of § 2675(a)." Romulus , 160 F.3d at 132. "The sufficiency of the claimant's notice depends on the information he provides, and different information will be required to satisfy presentment based on the facts of each case." Yunkeung Lee v. U.S. Dep't of Army , No. 11-CV-331 (RRM) (CLP), 2013 WL 4048329, at *4 (E.D.N.Y. Aug. 9, 2013), aff'd sub nom. Yunkeung Lee v. United States , 570 F. App'x 26 (2d Cir. 2014), as corrected (June 23, 2014) (citing State Farm Mut. Auto. Ins. Co. v. United States , 326 F. Supp. 2d 407, 412–13 (E.D.N.Y. 2004) ). A bare description of injuries unaccompanied by information from which an agency could discern recuperative costs does not satisfy FTCA presentment. See, e.g. , Davis v. United States , No. 13-CV-403 (CM), 2013 WL 5225931, at *5 (S.D.N.Y. Sept. 13, 2013) ; Hewitt v. United States , No. 10-CV-5774 (BSJ), 2011 WL 2419856, at *3 (S.D.N.Y. June 6, 2011) ; Yunkeung Lee , 2013 WL 4048329, at *5 (holding no presentment where "the notice of claim provided only a general description of his injuries and included no information that would allow the Army to deduce the extent or severity of those injuries, such as itemized medical bills or other medical documentation"). Particularly where a claimant ignores an agency's requests for further information to enable it to investigate the claim, the claimant deprives the agency of its right to estimate the claim's worth and attempt a fair settlement. See Collins v. United States Postal Serv. , 462 F.Supp.3d 231, 240-41 (E.D.N.Y. 2020) ; cf. Johnson by Johnson , 788 F.2d at 848–49. Hardie's initial filing did not provide information that would have allowed USPS to estimate the value of his claim. The SF 95 completed by Hardie lists a set of injuries he allegedly received as a result of the accident, the police report provides a sketch of how the cars collided, and another report details the procedure that Hardie apparently underwent. None of these documents, however, provides a sense of his claim's magnitude, particularly as evidenced by USPS's multiple requests for further detail. While Hardie's SF 95 does note a sum certain of $20,000,000, the SF 95's instructions make clear that additional information, like a physician's report documenting the extent of injury or itemized bills for expenses incurred, are required to properly present his claim. Consequently, in accord with the ruling meted out in plaintiff's first go-around in federal court, "Hardie's threadbare SF-95 submission followed by repeated silence in the face of USPS's requests for additional information deprived the agency of its right to investigate his claims" and failed to meet § 2675 ’s presentment requirement. Hardie I , 2018 WL 5268112, at *2.
II. The Westfall Act
Given the fatal insufficiency of his first presentment, Hardie attempts to save his claim by relying on his second presentment to USPS, which he lodged on November 30, 2018, only 30 days after the order in Hardie I . Pointing to the citation in Hardie I to the Westfall Act's savings clause, 28 U.S.C. § 2679(d)(5), Hardie contends that this second filing was, in fact, timely. See Dkt. 20 ("Pl.’s Opp'n Mem.") at 6. Whatever comfort plaintiff read, or misread, into Hardie I ’s reference to the Westfall Act's savings clause has, upon further review, proved illusory. The relevant language provides that failure to meet the presentment requirement is excusable if "(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action. " 28 U.S.C. § 2679(d)(5) (emphasis added).
In so discussing, this Court makes no comment as to whether this second filing would satisfy § 2675 ’s presentment requirement even if it were timely.
By its own terms, the savings clause applies only to an "underlying civil action", and thus only serves to toll time erroneously spent in court by a claimant who makes an initial filing there, instead of presenting the claim first with the relevant federal agency, as required under the FTCA. The purpose of tolling this time is to put a plaintiff back at square one when he was "unaware that his claim is governed by the FTCA." A.Q.C. ex rel. Castillo v. United States , 656 F.3d 135, 141 n.4 (2d Cir. 2011) ; see also Phillips v. Generations Family Health Ctr. , 723 F.3d 144, 148 (2d Cir. 2013) (discussing how the savings clause protects plaintiff who "has filed his or her tort suit against the wrong party"). The savings clause does not, however, protect a claimant who commences the process in the right place—by filing a claim with the agency—but who continuously fails to satisfy presentment requirements within the statutory two-year period. That is precisely the failure that is charged against Hardie here. In those circumstances, the failure to properly present the claim before the end of the statute of limitations period extinguishes the claim on the merits, notwithstanding a trip to federal court during that period. In other words, there is no claim left for the Westfall Act to save.
Hardie suffered the complained-of injuries on March 6, 2015, and filed his initial claim with USPS on April 8, 2016. Subsequently, on either February 8, 2017 (the date listed on the complaint), or March 2, 2017 (the ECF date), Hardie filed his first tort claims in federal court, asserting that he had satisfied all administrative requirements by presenting his claim to USPS. Hardie I , 19-cv-1201, Dkt. No. 1 ¶¶ 4-6. After his claims in federal court were dismissed on October 23, 2018, Hardie re-presented his claims to USPS on November 30, 2018, Compl. ¶¶ 9-10, more than three-and-a-half years after his injuries occurred.
III. Equitable Tolling
Should the Westfall Act fail to save his claims, Plaintiff contends that equitable tolling is warranted to excuse his failure to timely satisfy the presentment requirement. "[W]here [an] action has been dismissed without prejudice, a plaintiff's subsequent court filing is vulnerable to a time-bar because the dismissal in and of itself does not halt the running of the limitations period, even though designated to be without prejudice." Johnson v. Nyack Hosp. , 86 F.3d 8, 11 (2d Cir. 1996) (citing Jewell v. County of Nassau , 917 F.2d 738, 740–41 (2d Cir. 1990) (per curiam)). "Thus, to ensure that unfair prejudice does not result from a deferring court's without-prejudice dismissal, courts have protected a plaintiff's rights with the doctrine of equitable tolling, which provides a plaintiff with ‘just so much extra time as he needs, despite all due diligence on his part,’ to traverse court-imposed administrative hurdles and file a new federal claim." Id. (quoting Heck v. Humphrey , 997 F.2d 355, 357–58 (7th Cir. 1993) (emphasis omitted), aff'd on other grounds , 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) ). However, "[b]ecause statutes of limitations protect important social interests in certainty, accuracy, and repose, equitable tolling is considered a drastic remedy applicable only in rare and exceptional circumstance[s]." A.Q.C. ex rel. Castillo , 656 F.3d at 144 (internal quotation marks and citations omitted) (second alteration in original).
"The FTCA's time bars are ... subject to equitable tolling," United States v. Kwai Fun Wong , 575 U.S. 402, 420, 135 S. Ct. 1625, 1638, 191 L. Ed. 2d 533 (2015), but the availability of tolling does not guarantee relief. "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Doane v. United States , 369 F. Supp. 3d 422, 444–45 (N.D.N.Y. 2019) (quoting Mottahedeh v. United States , 794 F.3d 347, 352 (2d Cir. 2015) ). "The term ‘extraordinary’ refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period." Harper v. Ercole , 648 F.3d 132, 137 (2d Cir. 2011) ; see also A.Q.C. ex rel. Castillo , 656 F.3d at 145 ("Even the most cursory investigation would have revealed the [next steps] of [plaintiff]’s claim.").
Cf. Watson v. United States , 133 F. Supp. 3d 502, 523 (E.D.N.Y. 2015) (finding extraordinary circumstances where FTCA claimant had just completed a "Shock Incarceration Program," was set for deportation despite good reason to believe he was a citizen, and consequently became homeless, destitute, depressed, and a drug user).
While Hardie I resulted in dismissal without prejudice, that alone does not entitle plaintiff to equitable tolling. Hardie pleads no facts demonstrating that any circumstance, let alone an extraordinary one, prevented him from sufficiently presenting his claim to USPS within the two-year period. To the contrary, the record shows a demonstrated lack of diligence on the part of plaintiff in failing to respond to the May 5, 2016 letter (and February 2, 2017 follow-up letter) from USPS requesting "competent evidence" to substantiate Hardie's claim. Dkt. 21-2, 21-3.
Seeking to excuse this failing, Plaintiff cannot take refuge in Judge Block's memorandum and order, which was entered in October 2018, long after his window to properly present his claim to USPS had elapsed. Plaintiff cannot get around his burden to point to facts showing an extraordinary circumstance within the two years following accrual that prevented him from submitting the required documents. To permit equitable tolling under these circumstances would allow a plaintiff to sit on his rights and ignore administrative requests, using the eleventh-hour filing of a tort claim in federal court to tack another year-and-a-half onto the statute of limitations. Tolling in those circumstances is not warranted.
Conclusion
For the foregoing reasons, the motion to dismiss is granted. While leave to amend is generally freely given, see Cruz v. Gomez , 202 F.3d 593, 597-98 (2d Cir. 2000), leave to amend is not warranted "where it is clear from the face of the complaint that the Court lacks subject matter jurisdiction or that a claim cannot be stated as a matter of law." Steele v. Soc. Sec. Admin. , No. 14-CV-7104 (ENV) (MDG), 2016 WL 4688850, at *3 (E.D.N.Y. Sept. 7, 2016). That is the case here. The complaint is dismissed with prejudice.
So Ordered.