Azzolino et al v. Roberts
Filing
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ORDER GRANTING MOTION TO SUBSTITUTE PARTY AND MOTION TO DISMISS. Signed by Judge Richard Seeborg on 5/17/12. (cl, COURT STAFF) (Filed on 5/18/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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No. C 12-1378 RS
RICHARD AZZOLINO, ZULEY
AZZOLINO,
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ORDER GRANTING MOTION TO
SUBSTITUTE PARTY AND MOTION
TO DISMISS
Plaintiffs,
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For the Northern District of California
United States District Court
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v.
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NIALL ROBERTS,
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Defendant.
____________________________________/
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I. INTRODUCTION
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This case arises from a February 18, 2010, car accident when defendant Niall Roberts
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allegedly injured plaintiffs and damaged their property. Roberts is a Congressional staff member
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and, according to the United States, was driving to an official government event at the time of the
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accident. Anticipating a possible recovery from the federal government should Roberts be deemed
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to have been acting within the scope of his employment, plaintiffs submitted a claim for damages
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and injury to the U.S. House of Representatives on October 27, 2011 (and later, a revised claim).
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On February 9, 2012, mindful of California’s two-year statute of limitations for claims of general
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negligence, see California Civil Code § 335.1, and not yet having heard from the government,
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plaintiffs filed this action in state court, alleging general negligence and loss of consortium.
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On March 19, 2012, a representative of the U.S. Attorney’s office informed plaintiffs’
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counsel that the government had certified Roberts was acting within the scope of his employment,
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pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2675(d). Plaintiffs, apparently fearing
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ORDER
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the government might still reverse course on this question, refused a request to dismiss voluntarily
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the state court action. Roberts thereafter removed the case to this Court, pursuant to the 28 U.S.C. §
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1442(a)(1), which provides for removal of actions filed against officers of the United States.
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Roberts now moves to substitute the United States as defendant, per § 2679(d)(1) of the FTCA, and
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dismiss plaintiffs’ claims for lack of administrative exhaustion, under § 2675, and Federal Rule of
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Civil Procedure 12(b)(1) and (6) for lack of subject matter jurisdiction. Plaintiffs do not oppose the
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substitution of the United States, or dismissal of Zuley Azzolino’s claims, and those motions must
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be granted. Although plaintiffs oppose the additional dismissal of Richard Azzolino’s claims, that
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motion must also be granted for the reasons discussed below.
II. DISCUSSION
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For the Northern District of California
United States District Court
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A. Substitution
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Section 2675(d) of Title 28 provides that when a plaintiff asserts a tort claim against a
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defendant who is a federal employee, the Attorney General will certify whether that individual was
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acting within the scope of his or her employment at the time the claim arose. Per regulation, this
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duty has been delegated by the Attorney General to the U.S. Attorney. If the defendant employee’s
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conduct is so certified, the law provides for removal and mandatory substitution of the United States
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in place of the employee. 28 U.S.C. § 2679(d)(2). Here, there is no debate that the U.S. Attorney’s
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office has certified Roberts was acting within the scope of his employment at the time of the
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accident, and furthermore, defendants do not oppose substitution of the United States in his place.
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Accordingly, the motion is granted.
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B. Subject matter jurisdiction
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A motion to dismiss must be granted if the complaint fails to allege sufficient facts to
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establish subject matter jurisdiction over the action at bar. Savage v. Glendale Union High School,
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343 F.3d 1036, 1039-40 (9th Cir. 2003), cert. denied, 541 U.S. 1009 (2004). The FTCA vests the
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district courts with exclusive jurisdiction over “civil actions on claims against the United States, for
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money damages … for injury or loss of property, or personal injury or death caused by the negligent
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or wrongful act or omission of any employee of the Government while acting within the scope of his
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office or employment….” 28 U.S.C. § 1346(b)(1). As a prerequisite to subject matter jurisdiction
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under that Act, a claimant must administratively exhaust his or her claims with the appropriate
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federal agency. The FTCA specifically requires:
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
negligence or wrongful act or omission of any employee of the Government while
acting within the scope of her office or employment unless the claimant shall have first
presented the claim to the appropriate Federal agency and her claim shall have been
finally denied…. The failure of an agency to make final disposition of a claim within
six months after it is filed shall … be deemed a final denial of the claim….
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Id. at § 2675(a). The Ninth Circuit has “emphasized that the administrative claim requirements of
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Section 2675(a) are jurisdictional in nature, and thus must be strictly adhered to.” Jerves v. United
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States, 966 F.2d 517, 518 (9th Cir. 1992). “It admits no exceptions.” Id. Jerves specifically
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instructs that an action commenced prior to the federal agency’s final denial or disposition of the
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For the Northern District of California
United States District Court
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claims must be dismissed for lack of subject matter jurisdiction. Id. at 519.
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Here, there is no dispute that the present action was instituted by plaintiffs prior to the
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passing of the six-month period. There is also no question that the claim presented to the House of
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Representatives encompassed Richard Azzolino’s demands, but not those of Zuley Azzolino.
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Plaintiffs do not in fact oppose dismissal of Zuley’s claims, and because she has failed to meet the
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exhaustion requirement, defendant’s motion to dismiss must be granted, with prejudice, as to her
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claims.
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Plaintiffs advance several arguments to resist dismissal of Richard Azzolino’s claims on
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exhaustion grounds. First, they suggest the requirement should be waived. That proposal is directly
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contrary to binding Ninth Circuit authority and therefore untenable. Jerves, 966 F.2d at 519 (“claim
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requirement of section 2675 … may not be waived” (internal quotation marks omitted)).
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Alternatively, plaintiffs submit the issue was mooted on May 4, 2012, the date on which six months
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elapsed. Several courts in the Second Circuit have at least entertained such an argument as
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potentially viable. See Kramer v. Sec’y, Dep’t of the Army, 623 F. Supp. 505, 510 (E.D.N.Y. 1985)
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(dictum) (court could consider exhaustion issue moot where notice of claim was filed and
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administrative remedies were exhausted after lawsuit was filed); Clark v. United States, 481 F.Supp.
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1086, 1099 (S.D.N.Y. 1979) (where filing requirements were complied with by the time oral
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argument on motion to dismiss was heard, government stipulated that complaint was to be regarded
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as filed six months from filing of administrative claims), appeal dismissed, 624 F.2d 3 (2d Cir.
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1980). In this Circuit, however, it is settled that the FTCA’s exhaustion requirement must be
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“strictly” observed, and plaintiffs here have not mustered any authority to suggest otherwise. They
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protest that it would be a needless formality to dismiss and re-file the same pleadings minutes later,
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yet this is apparently what the statute requires.
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Plaintiffs also insist that, because California’s two-year statute of limitations for negligence
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claims has already run, in the unlikely event the United States reverses course and determines
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Roberts was not acting within the scope of his employment, they will be left without a viable state
claim. As counsel for the government conceded at oral argument, given traditional notions of
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For the Northern District of California
United States District Court
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estoppel, it would be difficult, at best, for the United States to achieve such an about-face. See also
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28 U.S.C. § 2679(d)(2) (“This certification of the Attorney General shall conclusively establish
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scope of office or employment for purposes of removal.” (emphasis added)). That said, in fairness,
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plaintiffs waited well over a year to assert their claim against Roberts. Had they acted more
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promptly after the accident, in all likelihood, they would not face the dilemma presented now. That
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is precisely the purpose of the limitations period – to compel prompt action. Here, plaintiffs have
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not furnished any meritorious arguments to suggest why the strict jurisdictional bar created by the
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FTCA’s administrative claims process should not apply to this case, as it does to all others.
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Accordingly, defendant’s motion to dismiss must be granted in its entirety, but without prejudice.
III. CONCLUSION
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For the reasons set forth above, defendant’s motions must be granted. As a consequence, the
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United States is substituted for Roberts as defendant in this action, Zuley Azzolino’s claims are
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dismissed with prejudice, and Richard Azzolino’s claims are dismissed without prejudice. The
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Clerk is directed to close the case.
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IT IS SO ORDERED.
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Dated: 5/17/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE
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No. C 12-1378 RS
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