Opinion
C/A No. 4:17-01309-RBH-KDW
10-20-2017
Amanda Moore, Plaintiff, v. United States of America, Defendant.
Report and Recommendation
Plaintiff filed this action in state court bringing a common-law cause of action against Christina Hulon for damages she allegedly sustained as a result of a car accident. Comp., ECF No. 1-2; Dillon Cnty. Magistrate's Court No. 2017-CV-17/10100422. Defendants removed this action on May 19, 2017, on grounds that this court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1442(a)(1) which provides for removal of a civil action commenced in a State court against "[a]ny officer of the United States, for or relating to any act under color of office or in the performance of his duties. . . ." Notice of Removal, ECF No. 1. In the Removal Notice, Defendant represents that Ms. Hulon was acting as a "Rural Carrier Associate" for the United States Postal Service when the car accident occurred. See id. at ¶¶ 1-2. Because Ms. Hulon was acting as a federal employee, Defendant maintains "her actions are covered under the Federal Tort Claims Act ("FTCA") [and] Plaintiff must file a tort claim with the United States." Id. at ¶ 3. Since this case was removed, Plaintiff substituted the United States as the party Defendant. ECF Nos. 7, 13.
This matter is before the court on Defendant's Motion to Dismiss, ECF No. 15. As Plaintiff is proceeding pro se, on July 12, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), Plaintiff was advised of the dismissal procedure and the possible consequences if she failed to adequately respond to the motion to dismiss. ECF No. 16. On August 14, 2017, Plaintiff filed a Response, see ECF No. 18, and on August 24, 2017, Defendant replied, ECF No. 20. All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.). Because a Motion to Dismiss is dispositive, a Report and Recommendation ("R&R") is entered for the court's review. Having reviewed the pleadings, including Defendant's removal documents, and the memoranda of the parties supporting and opposing the Motion to Dismiss, the undersigned recommends Defendant's Motion to Dismiss, ECF No. 15, be granted.
I. Background
Plaintiff, a resident of Dillon County, initially filed this matter on April 4, 2017, in state Magistrate's Court. ECF No. 1-2. There, she alleged she was involved in a car accident on March 4, 2017, sustaining $3,810.00 in property damages ($3,335.00 in damage to her truck and $475.00 in towing costs). Id. at 3. Plaintiff requested a bench trial in her Complaint. Id. at 4.
II. Standard of Review
Defendant has moved to dismiss this action based on Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d 765, 768 (1991). "In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id. The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Id. The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Id.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, Plaintiff must only plead "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). In order for Plaintiff's Complaint to survive Defendant's Motion to Dismiss, Plaintiff does not need to plead detailed factual allegations in her Complaint. See id. However, the United States Supreme Court has held that a plaintiff's grounds for relief requires more than just stating legal conclusions and elements of a cause of action. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting that, on a motion to dismiss, a court is "not bound to accept as true a legal conclusion couched as a factual allegation."). Plaintiff's complaint must contain sufficient factual allegations that make a claim for relief plausible, not just possible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp., 550 U.S. at 570. This court must accept Plaintiff's factual allegations as true and draw all reasonable inferences in her favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011).
III. Analysis
Defendant argues the court should dismiss this Complaint for lack of subject matter jurisdiction because Plaintiff has failed to exhaust her administrative remedies prior to filing suit. ECF No. 15. Specifically, Defendant maintains that Plaintiff's car accident occurred in March of 2017, but "Plaintiff failed to submit her claim to the United States Postal Service to resolve the claim administratively." Id. at 4. Therefore, it is Defendant's position that this court lacks subject matter jurisdiction. Id.
The FTCA allows litigants to sue the federal government under a limited waiver of sovereign immunity. 28 U.S.C. § 1346(b)(1). Sovereign immunity can be waived only by the sovereign; the circumstances of its waiver must be scrupulously observed and not expanded by the courts. See United States v. Kubrick, 444 U.S. 111, 117-18 (1979). "Precisely because the FTCA constitutes a waiver of sovereign immunity, [litigants] must file an FTCA action in careful compliance with its terms." Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000). "A key jurisdictional prerequisite to filing suit under the FTCA involves the presentation of an administrative claim to the government within two years of the incident." See id. (citing 28 U.S.C. § 2401(b) (1994). The pertinent provision of the FTCA provides:
An action shall not be instituted upon a claim 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, unless 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 by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. . . .28 U.S.C. § 2675(a).
"The requirement of filing an administrative claim is jurisdictional and may not be waived." Kokotis, 223 F.3d at 278 (citing Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986); see also Cook v. United States, No. 0:11-CV-00320-RMG, 2012 WL 384935, at *1 (D.S.C. Feb. 6, 2012), aff'd, 530 F. App'x 217 (4th Cir. 2013) ("The pertinent provision under the Act requires, inter alia, that Plaintiff first present his FTCA claim to the appropriate agency [and] his claim is finally denied by the agency in writing. . . ."). Further, any tort claim against the United States is "forever barred" unless the "action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b); see also 28 C.F.R. § 14.9(a). When a plaintiff fails to follow the statutory exhaustion requirements, a federal district court lacks subject matter jurisdiction over the claim. See Plyler v. United States, 900 F.2d 41 (4th Cir. 1990); see also McNeil v. United States, 508 U.S. 106, 113 (1993). The burden of establishing subject matter jurisdiction over an FTCA claim lies with the plaintiff. See Welch v. United States, 409 F.3d 646, 650-51 (4th Cir. 2005).
Defendant United States contends that Plaintiff filed this action prematurely. Prior to filing this action, Plaintiff was required (1) to present her claim to the United States Postal Service within two years of the incident, and (2) to receive a final denial of the claim or wait for the expiration of six months after the filing of the claim. See, e.g., Ahmed v. United States, 30 F.3d 514 (4th Cir. 1994). In support of its Motion to Dismiss, Defendant submits a Declaration of Kimberly A. Herbst, "the Supervisor, Tort Claims Examiner/Adjudicator with the United States Postal Service National Tort Center, St. Louis General Law Office," dated May 17, 2017. ECF No. 15-1 at ¶ 1. Ms. Herbst represents that she "ha[s] full access to, and regularly utilize[s], all Postal Service Law Department records that are maintained on each administrative claim submitted for adjudication to the Postal Service pursuant to the provisions of the [FTCA]," including tort claims submitted that have occurred within the State of South Carolina. Id. at ¶ 2. Furthermore, Ms. Herbst attests:
The Law Department maintains an internal database that contains a listing of most claims filed against the United States Postal Service for damage, injury, or death. This database contains information regarding the claim, including the date the claim was received. The only claims that are not listed in this database system are claims for loss that are settled at the local level by a Torts Claims Coordinator. [She] conducted a search of all Postal Service Law Department records of administrative tort claims submitted for adjudication for evidence of an administrative claim filed by or on behalf of [Plaintiff], [and] [n]o such claim was discovered.Id. at ¶¶ 3-4. Additionally, Ms. Herbst attests that she conducted another search in a "separate database maintained by the Postal Service tort claim coordinators [that] contains information on and tracks claims submitted for adjudication at the local level." Id. at ¶¶ 5-6. Ms. Herbst represents that no administrative claim for Plaintiff was discovered in a search of "all Postal Service tort claim coordinator database records of administrative tort claims received at the local level. . . ." Id. at ¶ 6.
In her Response to the Motion to Dismiss, Plaintiff does not argue against Defendant's Motion but represents she has a claim with the U.S. Postal Service. See ECF No. 18. In Reply, Defendant acknowledges Plaintiff's representation that she has filed a claim. ECF No. 20. However, Defendant argues that Plaintiff fails to indicate when her claim was filed See id. Further, Defendant argues that evidence indicates Plaintiff's claim was filed on June 26, 2017, after she commenced her lawsuit. See id. In support of its Reply, Defendant again submits a Declaration of Kimberly A. Herbst. See ECF No. 20-1. In her second Declaration, Ms. Herbst attests that records indicate:
On or about June 26, 2017, [P]laintiff Amanda Moore presented a Standard Form 95 pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §1346(b) and 2671, to the United States Postal Service regarding a motor vehicle accident which occurred on March 4, 2017 involving [P]laintiff and Christina Hulon, a United States Postal Service employee on said date. . . .Id. at ¶¶ 2; 4 (referencing Exhibit A at ECF No. 20-1 at 3-4). Additionally, Ms. Herbst represents that Plaintiff's "claim has not yet been adjudicated or denied and six months has not elapsed since the claim was received." Id. at ¶ 5.
Evidence indicates that Plaintiff has met the first prerequisite to suit because she has presented her claim to the United States within two years of the March 4, 2017 car accident. See ECF No. 20-1 at 3-4. However, undisputed evidence indicates that Plaintiff has not met the second prerequisite to suit because she has not received a "final denial of the claim [n]or wait[ed] for the expiration of six months after the filing of the claim." Because Plaintiff cannot satisfy the second prerequisite to suit as required by Ahmed v. United States, 30 F.3d 514, the undersigned finds there is no jurisdictional basis in this Court. Accordingly, the undersigned recommends granting Defendant's Motion to Dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1).
IV. Conclusion and Recommendation
Based on the foregoing, it is recommended that Defendant's Motion to Dismiss, ECF No. 15, be GRANTED, for lack of subject-matter jurisdiction.
IT IS SO RECOMMENDED. October 20, 2017
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge