Opinion
17-cv-5049 (EK)(MJ)
2023-12-19
Susan HARRISON, Plaintiff, v. UNITED STATES, Defendant[s].
Joseph Katz, Philip Reid, Sacco & Fillas, LLP, Astoria, NY, Jeremy Samuel Ribakove, Astoria, NY, for Plaintiff. Shana Priore, Philip R. DePaul, Tsz Ting Tam, United State's Attorney's Office Eastern District, Brooklyn, NY, for Defendant.
Joseph Katz, Philip Reid, Sacco & Fillas, LLP, Astoria, NY, Jeremy Samuel Ribakove, Astoria, NY, for Plaintiff. Shana Priore, Philip R. DePaul, Tsz Ting Tam, United State's Attorney's Office Eastern District, Brooklyn, NY, for Defendant.
MEMORANDUM & ORDER
ERIC KOMITEE, United States District Judge:
Plaintiff Susan Harrison has sued the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-80 ("FTCA"). Before the Court is the Defendant United States' motion to dismiss for lack of subject matter jurisdiction. For the reasons that follow, that motion is granted.
I. Background
Susan Harrison alleges that, in December 2016, a mail carrier working for the United States Postal Service ("USPS") hit her with a non-motorized mail cart, causing serious injuries to her right leg and knee. Am. Compl. ¶ 1, ECF No. 2. Following this alleged incident, on February 16, 2017, Harrison filed a Standard Form 95 ("SF-95") with the USPS. See Pl.'s Ltr. & SF-95, ECF No. 67-1. The form states that Harrison was "injured [ ] when a postal worker working for the [USPS] pushed a mailcart into the claimant's right leg and right knee," along with the location of the incident. Id. It also claims $1,500,000 in damages for "[m]ultiple bodily injuries including but not limited to the right leg and right knee." Id.
In response, the USPS wrote a letter to Plaintiff's counsel, requesting medical records and itemized bills for any treatment received, because without such documents, the USPS would be "unable to properly evaluate the claim." USPS Feb. 23 Ltr., ECF No. 67-2. When Plaintiff did not respond, the Postal Service sent another letter requesting further documents. USPS Aug. 10 Ltr., ECF No. 67-3. Plaintiff similarly did not respond to that letter, instead filing suit in this Court on August 25, 2017. See Compl., ECF No. 1. Following this filing, the USPS denied Plaintiff's administrative claim, due to a "failure to submit competent evidence of [Plaintiff]'s injuries and damages as is required." USPS Sept. 19 Ltr., ECF No. 67-4.
This case has been pending for over six years, and the parties have gone through motion practice, discovery, mediation, and trial preparations. See generally Harrison v. United States, E.D.N.Y. Docket, No. 17-CV-5049. During discovery, Harrison did ultimately provide greater detail and documentation regarding the alleged incident. See Rule 56.1 Statement, ECF No. 17; Def.'s Reply Ltr., ECF No. 72.
The Government now moves — obviously belatedly — to dismiss, asserting that they recently identified deficiencies in Harrison's presentment of her claim to the USPS under the FTCA.
II. Legal Standard
"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). When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a court must "accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Bohnak v. Marsh & McLennan Companies, Inc., 79 F.4th 276, 283 (2d Cir. 2023); Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006). Further, "[i]n resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court... may refer to evidence outside the pleadings." Makarova, 201 F.3d at 113. III. Discussion
A. Plaintiff Failed to Adequately Present her Claim to the USPS Before Filing Suit
Under the principle of sovereign immunity, "the United States may not be sued without its consent and [ ] the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). When the Government does consent to suit, it can place conditions and limitations on that consent, which must be strictly observed. Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). In the FTCA, the Government consented to a limited waiver of its sovereign immunity, conditioned on the prerequisite that "the claimant shall have first presented the claim to the appropriate Federal agency." 28 U.S.C. § 2675(a).
Unless otherwise noted, when quoting judicial decisions this order accepts all alterations and omits all citations, footnotes, and internal quotation marks.
Given this language, the presentment requirement is jurisdictional and thus not waivable. See Leytman v. United States, 832 F. App'x 720, 722 (2d Cir. 2020) ("Failure to comply with this exhaustion requirement deprives Article III courts of subject matter jurisdiction over FTCA claims."); Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) ("[The presentment] requirement is jurisdictional and cannot be waived."); see also Collins v. United States, 996 F.3d 102, 109 (2d Cir. 2021) (citing Celestine for the same proposition). Because such jurisdictional requirements cannot be waived, a "party may challenge subject matter at any time." United States v. Assa Co., 934 F.3d 185, 188 (2d Cir. 2019).
Presentment under the FTCA requires "a written notice of claim that sufficiently describes the injury so that the agency can investigate and ascertain the strength of a claim" and a "sum certain damages claim." Romulus v. United States, 983 F. Supp. 336, 340 (E.D.N.Y. 1997), aff'd, 160 F.3d 131 (2d Cir. 1998). A sufficient description will have several elements:
[T]he presentment requirement mandates that the claimant present the agency with sufficient information — whether through narrative, evidence, or other means — to alert the agency to the basis for his claim, the nature of his injuries, and the amount of damages sought so that the agency can proceed to investigate its liability and value the claim in order to assess the advisability of settlement.
Collins, 996 F.3d at 105.
Plaintiff argues that her SF-95 met this standard, as it alerted the USPS to her claim, its amount, and the "body parts" — "right leg and right knee" — that were allegedly injured. ECF No. 71, Pl. Ltr. 2. She invokes Collins, which found that "[t]he FTCA's jurisdictional presentment prerequisite is one of notice, not proof. While this requirement demands more than conclusory assertions of claims, it does not necessarily require that a claimant provide an agency with supporting evidence." 996 F.3d at 105.
In Collins, however, the plaintiff's SF-95 identified Collins' injuries with substantial precision and provided details of treatment, along with hospital and other medical bills. Id. at 106. Collins' attorney informed the agency (via SF-95) not only of the body parts affected by the accident, but also the consequences to those parts: Collins' left knee was "fractured," as were six ribs; his left elbow was also fractured, with "exposed bone"; and Collins was diagnosed,
during the ensuing treatment in intensive care, with chest and blood infections and "equilibrium issues." Id. The USPS notified Collins' attorney that the claim was being reviewed, but — unlike here — it "did not then [or later] indicate that Collins' Form 95 claim was deficient in any way." Id. Ultimately, the court held the presentment there "specific enough to permit [the agency] to conduct an investigation and to estimate the claim's worth," as required by the FTCA. Id. at 111.
Harrison's SF-95 fell well short of this mark, despite two unsuccessful attempts by the USPS to solicit further information. ECF No. 67, Def.'s Ltr. 3. Indeed, Harrison's submission said virtually nothing about the severity of her injuries — perhaps the single most important criterion in any assessment of the range of reasonable settlement. And, as detailed in the Government's letter, courts in this Circuit have dismissed claims that involve attempts at presentment similar to Harrison's. Def.'s Ltr. Mot. at 3-4, ECF No. 67 (collecting cases). Notably, in Ruffin v. United States, the plaintiff's SF-95 merely asserted injuries "including, but not limited" to "right side neck and shoulder; middle and lower back" and listed damages at $2,500,000. No. 20-CV-04128, 2021 WL 4408039, at *3 (E.D.N.Y. Sept. 27, 2021). As in this case, the Ruffin plaintiff did not respond to USPS requests for further detail and documentation. Id. The court found this filing to be "vague and conclusory" and insufficient to put USPS on notice regarding the scope of the claim. Id. at *3-4.
Similarly, the court in Romulus v. United States found that "a plaintiff who filed a conclusory form and subsequently refused to respond to requests for information" had failed to properly present under the FTCA, warranting dismissal. 983 F. Supp. 336, 342 (E.D.N.Y. 1997), aff'd, 160 F.3d 131 (2d Cir. 1998). See also Larrabee v. United States, No. 22-cv-187, 2022 WL 17992200, at *3 (E.D.N.Y. Dec. 29, 2022) ("[T]he mere act of filing an SF 95 does not necessarily fulfill the presentment requirements.").
As these cases indicate, filing a SF-95 form with conclusory statements about vague injuries and no further support, as Harrison did here, does not constitute adequate presentment under the FTCA. This court therefore lacks jurisdiction.
B. Equitable Tolling Cannot Remedy the Jurisdictional Deficiency
Plaintiff seeks a way around the presentment issue, arguing that the claim should be equitably tolled because (1) proper presentment was infeasible due to the slow development of her injuries compared to the tight deadline for administrative claims, and (2) the medical evidence submitted to the U.S. Attorney's Office over the course of this litigation should be "deemed" to have been served on the government retroactively in support of Harrison's administrative claim. Pl.'s Ltr. 3, ECF. No 71. These arguments are unsupported by the law and the facts.
1. Equitable Tolling Does Not Apply to the Jurisdictional Defect at Issue
Plaintiff requests that the Court use its equitable powers to allow her claim to survive. Id. In support, she invokes the Supreme Court's holding, in United States v. Wong, that the "time limits set forth in 28 U.S.C. § 2401 are nonjurisdictional and thus subject to equitable tolling." See id. (citing Wong, 575 U.S. 402, 412, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015)). The "time limits" of which Wong spoke, however, are not in issue here. Wong concerned Section 2401(b)'s requirements that (i) a claim must be presented to the agency "within two years after such claim accrues" and (ii) a lawsuit on the claim be filed "within six months" after the agency acts (one way or another). Wong, 575 U.S. at 405, 135 S.Ct. 1625. Here, in contrast, the United States makes no argument regarding the timeliness of Harrison's presentment to the Postal Service or her filing in this Court. Instead, the government contests the sufficiency of her presentment — that is, whether she complied with the presentment requirement at all. As discussed above, the later requirement is jurisdictional, and therefore not subject to equitable tolling. See Mohamed v. F.B.I., No. 14-cv-7615, 2015 WL 6437369, at *6 (S.D.N.Y. Oct. 21, 2015) (finding that Wong did not "disturb the well-established principle that certain prerequisites to filing suit under the FTCA, such as exhaustion of administrative remedies, are jurisdictional in nature, and are not subject to waiver or tolling"). Further, any question regarding the Second Circuit's stance on this issue was settled by the Collins and Leytman courts' post-Wong citations to Celestine for the proposition that presentment is jurisdictional and unwaivable. See supra p. 248. This court is of course bound by those dispositions.
2. Even if Equitable Tolling Could Apply to These Claims, Plaintiff is Not Entitled to it on the Facts
Even if equitable tolling could excuse the insufficient presentment, Harrison has not satisfied the requirements for it. A plaintiff seeking equitable tolling must establish "(1) that [she] has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way." Hardie v. United States, 501 F. Supp. 3d 152 (E.D.N.Y. 2020), aff'd, 859 F. App'x 612 (2d Cir. 2021). Harrison's submission satisfies neither prong.
a. Plaintiff Has Not Alleged Facts Constituting Diligent Pursuit
First, as discussed above, Harrison's terse, nonspecific SF-95 was insufficient to shepherd her claim through administrative review. Supra Section III.A. Beyond this, and despite multiple opportunities, she made no effort to supplement or remedy her administrative claims before filing suit. Id.
Instead, she now requests that the Court deem the medical records submitted in her Rule 26 disclosures in this action to be served retroactively on the Government in satisfaction of the presentment requirement. Pl.'s Ltr. 3, ECF No. 71. But serving discovery on the U.S. Attorney's Office in litigation is not, of course, the same as presenting the "appropriate" agency with evidence of an administrative claim under 28 U.S.C. § 2675(a). The fact that these documents were filed within the statute of limitations of the administrative claim is inapposite, as the claim itself had already been denied when they were shared.
Further, Harrison's proposal has been attempted — and universally rejected — by courts in this district and the Supreme Court itself. See McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (affirming dismissal of an FTCA action, where plaintiff failed to exhaust administrative remedies before filing suit but did so early in the litigation); Furman v. U.S. Postal Serv., 349 F. Supp. 2d 553 (E.D.N.Y. 2004) (denying request to deem records exchanged in litigation "to have been filed nunc pro tunc" "because the medical records were received after the claim had already been denied by the USPS and after [the] lawsuit was filed"). Plaintiff cites no authority to the contrary. Although the Court is sensitive to the amount of time that this case has been pending, as well as the lateness of the government's motion to dismiss, the law does not follow a "balancing of the equities" test in evaluating jurisdictional presentment.
See Def.'s Ltr. at 3, ECF No. 71. Therefore, details revealed during litigation cannot cure the deficiency of Harrison's presentment to the USPS.
b. No Extraordinary Circumstances Prevented Harrison from Exhausting Her Administrative Claims
In response to the Government's letter motion, Plaintiff explained that her SF-95 form lacked detail in part because "[i]njuries can take time to develop; clients do not always treat immediately; medical records take time to come in; and all the while, the claimant is under strict deadlines in terms of filing the SF-95." Pl.'s Ltr. 203, ECF No. 71. However, these do not qualify as extraordinary circumstances. Among other things, the timeline of events afforded Harrison ample runway to exhaust her administrative claims.
In fact, as Harrison's own disclosures in discovery reveal, she sought medical treatment the day following the alleged incident, and by the time she filed suit, had undergone knee surgery allegedly connected to the events at issue. See Rule 56.1 Statement, ECF Nos. 25, 29 ¶¶ 15, 17. Moreover, she had two full years following the incident to file her SF-95, 28 U.S.C. § 2401(b), and this timeline had not yet expired when she abandoned her administrative claim to file this action. Finally, Harrison was explicitly granted two opportunities to cure her deficient form, and it was not until after she initiated this lawsuit that the USPS ultimately denied her claim. See USPS Feb. 23 Ltr., ECF No. 67-2; USPS Aug. 10 Ltr., ECF No. 67-3; USPS Sept. 19 Ltr., ECF No. 67-4. Thus, Harrison's arguments regarding timing are unavailing.
The only other "extraordinary circumstance[ ]" that Plaintiff alludes to is the Government's failure to raise this jurisdictional defect until a month before trial. See Pl.'s Ltr. 2, ECF No. 71. However, as discussed above, a lack of subject matter jurisdiction can be raised at any time, and Plaintiff herself had the burden of establishing such jurisdiction. Assa Co., 934 F.3d at 188; Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006) ("It is well-settled that the party asserting federal jurisdiction bears the burden of establishing jurisdiction.").
C. Dismissal is Without Prejudice
Because this dismissal is ordered due to a lack of subject matter jurisdiction, it is without prejudice. Leytman 832 Fed. Appx. at 722 ("[W]hen a case is dismissed for lack of federal subject matter jurisdiction, Article III deprives federal courts of the power to dismiss the case with prejudice.")
IV. Conclusion
For the foregoing reasons, Defendant's motion is granted, and the case is dismissed without prejudice.
SO ORDERED.