Opinion
No. CV-02-4896 (SDF)(ETB)
January 28, 2004
OPINION ORDER
I. Introduction
Defendant United States of America ("defendant") has moved to dismiss the plaintiff's case pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is GRANTED.
II. Background
Plaintiffs Celia Santiago, Carlos Matos, Jr., Christopher Santiago, and Cecilia Santiago ("plaintiffs") were involved in an automobile accident with a United States Postal Service ("USPS") vehicle. (Compl.). On March 5, 2002, the USPS mailed all plaintiffs a final letter denying their administrative claim for damages. (Corrected Horan Decl., exh. B). On September 6, 2002, plaintiff commenced the instant action claiming personal injury under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401, 2671-2680 et seq. (2000). Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction contending that plaintiffs failed to timely file the lawsuit after the USPS denied their administrative claim.
III. Analysis
A. Federal Tort Claim Act
The FTCA waives the United States' sovereign immunity against certain tort claims. To commence an action under the FTCA, a plaintiff must comply with the statute's strictly construed prerequisites. See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999). The procedures for commencing an action under the Federal Tort Claims Act are clear. 28 U.S.C. § 2401(b) reads:
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 a claim accrues or unless 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) (emphasis added). Thus, a claimant has six (6) months to file an action in the appropriate district court following an agency denial. See 28 U.S.C. § 2401(b).
If a plaintiff fails to comply with the FTCA's requirements, the court lacks subject matter jurisdiction. See United States v. Kubrick, 444 U.S. 111, 117-18, 62 L.Ed.2d 259, 100 S.Ct. 352 (1979) (noting that the statute of limitations of § 2401(b) is strictly construed since the FTCA waives the immunity of the United States); In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987) ("In the absence of such compliance, a district court has no subject matter jurisdiction over the plaintiff's claim."); Solomon v. United States, 566 F. Supp. 1033,
1035 (E.D.N.Y. 1982) ("Compliance with the statute of limitations under the FTCA is a jurisdictional prerequisite and noncompliance results in the claim being forever barred.").
Although § 2401(b) does not include a time computation rule, it specifically states that an action must be commenced "within six months after the date of mailing. . . ." 28 U.S.C. § 2401(b) (emphasis added). Therefore, the limitations period begins to run on the day after the March 5, 2002 mailing: March 6, 2002. Plaintiffs contend that if the limitations period began on March 6, 2002, the filing of the September 6, 2002 complaint was within six-months after the date of mailing and thus timely. However, the six-month limitations period expired on September 5, 2002.
In Murray v. United States Postal Service, 569 F. Supp. 794 (N.D.N.Y. 1983), the Northern District of New York explained:
[T]he limitations period began to run on the day following the mailing: October 27th. The last day of the first month is therefore November 26, and not November 27, which is the first day of the second month. Accordingly, the last day of the sixth month is April 26 — not April 27 — and an action commenced after April 26 is not commenced "within six months after the date of mailing" within the meaning of § 2401(b).Id. at 796. This reasoning is consistent with other opinions in this circuit. See Isahack v. United States, No. 00-9656, 2001 WL 1456519, at *3 (S.D.N.Y. Nov. 15, 2001) (Plaintiff's claim was "denied on October 18, 1999. That denial began a time period running until April 18, 2000 in which she could . . . file suit in an appropriate district court."); Metro. Prop. Casualty Ins. Co. v. United States, No. 90-3435, 1991 WL 37082, at *3 (E.D.N.Y. Mar. 12, 1991) (holding that where the denial letter was mailed on February 15, 1990, the filing of a complaint on August 24, 1990 was nine days after the six-month period expired [August 15, 1990]); Campbell v. U.S. Customs Serv., 1988 WL 31856, at *2 (S.D.N.Y. Mar. 23, 1988) ("[T]he legal action accrued on . . . November 24, 1986. Therefore, the statute of limitations ran on May 24, 1987).
Thus, contrary to plaintiff's contention, the limitations period expired on September 5, 2002, and not September 6, 2002. Since plaintiff's complaint was not filed until September 6, 2002, his claim is barred by the six-month statute of limitations and must be dismissed.
IV. Conclusion
Defendant's motion to dismiss is GRANTED and this case is dismissed in its entirety. The Clerk of Court is directed to close this case.
IT IS SO ORDERED.