Singh v. UNITED STATES OF AMERICA

Filing 33

ORDER DENYING MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, GRANTING SINGH'S MOTION TO AMEND ADMINISTRATIVE CLAIM. Re: Dkt. Nos. 9, 28 (31). Signed by Judge Nathanael Cousins. (lhS, COURT STAFF) (Filed on 2/16/2017)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10

MONTIE SINGH,
Plaintiff,

United States District Court
Northern District of California

11
v.

12
13

UNITED STATES OF AMERICA,
Defendant.

14

Case No. 16-cv-01919 NC
ORDER DENYING MOTION TO
DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION,
GRANTING SINGH’S MOTION TO
AMEND ADMINISTRATIVE CLAIM
Re: Dkt. Nos. 9, 28 (31)

15
16

In this Federal Tort Claims Act (FTCA) action, the United States moves to dismiss
17
plaintiff Montie Singh’s complaint for lack of subject matter jurisdiction. In addition,
18
Singh moves to amend his administrative claim to account for increased damages.
19
Because the Court finds it has subject matter jurisdiction over Singh’s case, it DENIES the
20
motion to dismiss. Further, because the Court finds Singh’s injuries were not reasonably
21
foreseeable, and his damages unknown due to newly discovered evidence, the Court
22
GRANTS Singh’s motion to amend.
23
24
25
26
27

I.

BACKGROUND
A.

Factual Allegations – Motion to Dismiss

Singh alleges he was injured on April 30, 2014, when a United States Postal Service
(USPS) truck driven by a USPS employee rear-ended his vehicle. Dkt. No. 1 at 1-2. Per
Singh, the employee’s negligence “was a substantial contributing factor” in causing his

28
Case No. 16-cv-01919 NC

1

injuries. Id. at 2. Singh brings this case under the FTCA for monetary damages. Id.

2

Further, Singh provides that on October 1, 2015, he submitted his completed Claim for

3

Damage, Injury or Death to the USPS, Standard Form 95, which was received by the

4

USPS on October 5, 2015. Id. That form had a box in which Singh specified the amount

5

of his claim. Id. at 6. As to personal injury, Singh provided in box 12b that “Claimant is

6

still treating. The claim will exceed $100,000.00.” Id. Singh’s total claim in box 12d

7

stated his “Claim will exceed $100,000.00.” Id. Box 12d stated that “Failure to specify

8

[the total amount of the claim] may cause forfeiture of your rights.” Id. Singh filed this

9

complaint under 28 U.S.C. § 2401(b), the two-year statute of limitations on presenting
government tort claims, and § 2675(a), because the USPS failed to “make a final

11
United States District Court
Northern District of California

10

disposition of the claim within the six months after it was filed.” Id.

12

B.

Factual Allegations - Motion to Amend

Singh seeks to amend his administrative claim from $100,000 to $1,800,000. Dkt.

13
14

No. 28 at 2; see also Dkt. No. 31.1 Singh provides that after he was involved in the

15

accident with the USPS truck he went to the emergency room for a few hours, and found

16

out weeks later he had serious back injuries, resulting in later surgeries. Dkt. No. 31 at 5-

17

6. These surgeries were performed in September and December, 2014. Id. at 6. Singh,

18

who had continued to work as a heating, ventilation and air conditioning (HVAC)

19

technician after the accident, returned to work after surgery. Id. at 5-6. In the months after

20

the second surgery, Singh experienced periods of improvement and deterioration in his

21

pain symptoms. Id. at 6-7. Singh received physical therapy several times, and epidural

22

injections for his pain in April, May, and June, 2015. Id. at 7.
Dr. Alex Barchuk examined Singh on August 12, 2015, to complete a life care

23
24

planning report. Id. This examination occurred two months before Singh submitted his

25
26
27
28

1

Singh filed an Amended Motion to Amend his Administrative Claim on December 7,
2016. Dkt. No. 31. The Court presumes this amended motion supersedes the original
motion to amend at docket 28. However, because the amended motion does not include
the medical records that the original motion did, the Court refers to the records in docket
28-1 in this order.
Case No. 16-cv-01919 NC
2

1

Form 95 to the USPS on October 5, 2015. Id. at 7-8. Singh’s counsel received Dr.

2

Barchuk’s report on November 24, 2015, a month and a half after the Form 95 was

3

submitted. Id. at 8. That report concluded Singh would require pain management “on a

4

frequent basis as well as spinal surgery and primary care,” in addition to “follow-up

5

radiological studies” such as x-rays and MRI scans. Dkt. No. 28-1 at 163. Dr. Barchuk

6

found that because Singh’s cervical fusion caused an increased risk “for accelerated

7

degenerative changes above and below the areas of fusion,” that condition would have to

8

be monitored for life. Id. As a result of Dr. Barchuk’s report, Singh obtained additional

9

reports from Karen Aznavoorian, CCC-SLP/L, CLCP, Certified Rehabilitation Counselor
Ronald W. Morrell, and economist Phillip H. Allman, Ph.D. during April, August, and

11
United States District Court
Northern District of California

10

September, 2016. Dkt. No. 28 at 3; Dkt. No. 28-1 at 168-81,183-90. These reports

12

provide that Singh’s future care will cost $434,551, and that his future lost earnings will

13

total $400,378. Dkt. No. 30-1 at 3 (Habbas Decl.); Dkt. No. 28-1 at 175, 188.

14

C.

Procedural History

Singh filed this case on April 12, 2016. Dkt. No. 1. The United States filed a

15
16

motion to dismiss for lack of subject matter jurisdiction due to Singh’s alleged failure to

17

exhaust administrative remedies. Dkt. No. 9. Singh later filed a motion to amend his

18

administrative claim based on Dr. Barchuk’s life care planning report and related reports.

19

Dkt. No. 28. He has now filed an amended motion to amend the claim. Dkt. No. 31. Both

20

parties consented to the jurisdiction of a magistrate judge. Dkt. Nos. 4, 8.

21

II.

22
23

LEGAL STANDARD
A.

Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests the

24

subject matter jurisdiction of the Court. See, e.g., Savage v. Glendale Union High Sch.,

25

343 F.3d 1036, 1039-40 (9th Cir. 2003), cert. denied, 541 U.S. 1009 (2004). Such a

26

jurisdictional attack may be either “facial” or “factual.” Safe Air for Everyone v. Meyer,

27

373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

28

2000)). In a facial attack, the movant argues that the allegations of a complaint are
Case No. 16-cv-01919 NC

3

1

insufficient to establish federal jurisdiction. Id. In a factual attack, however, “the

2

challenger disputes the truth of the allegations that, by themselves, would otherwise invoke

3

federal jurisdiction.” Id. In resolving a factual attack, a court may review evidence

4

beyond the complaint without converting the motion into a motion for summary judgment.

5

Id. (citing Savage, 343 F.3d at 1039 n. 2). Consequently, a court need not presume the

6

truthfulness of a plaintiff’s allegations. Id. (citing White, 227 F.3d at 1242). Indeed,

7

“[o]nce the moving party has converted a motion to dismiss into a factual motion by

8

presenting affidavits or other evidence properly before the court, the party opposing the

9

motion must furnish affidavits or other evidence necessary to satisfy its burden of

10

establishing subject matter jurisdiction.” Id. (quoting Savage, 343 F.3d at 1039 n. 2).

United States District Court
Northern District of California

11

Singh invoked the Court’s jurisdiction, and bears the burden of establishing subject

12

matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-78

13

(1994). Whether the United States waived sovereign immunity is a question of the Court’s

14

subject matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 586 (1941). Singh

15

bears the burden of establishing that waiver. Cato v. United States, 70 F.3d 1103, 1107

16

(9th Cir. 1995). The Court treats the United States’ motion to dismiss as a factual 12(b)(1)

17

attack and therefore considers all admissible evidence in the record. See e.g., Schwartz v.

18

United States, No. 12-cv-0586 YGR, 2012 WL 3070789, at *3-4 (N.D. Cal. July 25,

19

2012), aff’d in part, vacated in part, remanded, 593 F. App’x 663 (9th Cir. 2015).

20

III. DISCUSSION

21
22
23
24

There are two motions before the Court: the motion to dismiss for lack of subject
matter jurisdiction; and Singh’s motion to amend his administrative claim.
A.

The Court Has Subject Matter Jurisdiction Over Singh’s Claim.

Singh alleges the Court has subject matter jurisdiction over his case under the

25

FTCA. Dkt. No. 1. The United States disputes this, alleging that Singh failed to exhaust

26

his administrative remedies by filing an invalid administrative claim. Dkt. No. 9 at 6.

27
28

The FTCA provides plaintiffs an exclusive remedy against the United States for
injuries arising from torts committed by federal government employees. 28 U.S.C. §
Case No. 16-cv-01919 NC

4

1

1346(b)(1) waives sovereign immunity, and gives federal district courts jurisdiction over

2

civil actions on claims against the government. Specifically, such claims include those:

3
4
5
6
7

[1] against the United States, [2] for money damages, . . . [3]
for injury or loss of property, or personal injury or death [4]
caused by the negligent or wrongful act or omission of any
employee of the Government [5] while acting within the scope
of his office or employment, [6] under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred.
F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994) (quoting 28 U.S.C. § 1346(b)). However, as a

9

prerequisite for invoking § 1346, a plaintiff must first satisfy 28 U.S.C. § 2675(a) by filing

10

an administrative claim and exhausting administrative remedies. That subsection requires

11
United States District Court
Northern District of California

8

a person instituting such a claim to first present the claim to the relevant federal agency,

12

and that the person’s claim have been “finally denied by the agency in writing and sent by

13

certified or registered mail.” § 2675(a). An agency’s failure “to make final disposition of

14

a claim within six months” of filing is deemed a final denial of the claim. Id.

15

Here, the United States sole argument under § 2675 is that Singh did not satisfy its

16

requirements by not properly presenting his claim–through his alleged failure to specify a

17

sum certain–which would deprive the Court of subject matter jurisdiction. Dkt. No. 9 at 4;

18

§ 2675(a). “A claim is deemed presented for purposes of § 2675(a) when a party files ‘(1)

19

a written statement sufficiently describing the injury to enable the agency to begin its own

20

investigation, and (2) a sum certain damages claim.’” Blair v. I.R.S., 304 F.3d 861, 864

21

(9th Cir. 2002) (quoting Warren v. United States Dep’t of Interior Bureau of Land Mgmt.,

22

724 F.2d 776, 780 (9th Cir. 1984)). “The requirement that the claim state a specific dollar

23

sum is jurisdictional and cannot be waived.” Jacobson v. U.S. ex rel. U.S. Postal Serv.,

24

276 F. Supp. 2d 1106, 1108 (D. Nev. 2003) (citing Spawr v. United States, 796 F.2d 279,

25

280 (9th Cir.1986)).

26

“The recognized purpose of the FTCA is to provide compensation to those injured

27

by the government’s torts.” Blair, 304 F.3d at 868 (internal citations omitted). The

28

FTCA’s claim presentation requirement was designed compensate those injured by
Case No. 16-cv-01919 NC

5

government torts “in a fair and equitable manner, not to provide a basis for a regulatory

2

checklist which, when not fully observed, permits the termination of claims regardless of

3

their merits.” Id. (internal citations and quotation marks omitted). In Blair the plaintiff

4

submitted a Form 95 to the government agency before filing a lawsuit. Id. at 865. In that

5

case, the plaintiff provided a sum certain for his past and future loss of wages, along with

6

an explanation of how that amount was calculated; however, he also provided his medical

7

expenses were still being incurred and did not specify a sum certain for those expenses. Id.

8

at 866. The Ninth Circuit found the plaintiff stated a sum certain in wage loss. Id. As to

9

the statement regarding the unspecified amount in medical expenses, the Court found that

10

the statute’s purposes were best met by considering that statement “surplusage,” meaning

11
United States District Court
Northern District of California

1

that his medical expenses would not be considered part of his claim.2 Id.
The Court also finds persuasive Blair’s language regarding the spirit and purpose of

12
13

the FTCA in compensating the victims of government torts. Id. at 868. The Court notes,

14

however, that this case is distinguishable from Blair because in that case there was no

15

qualifying language attached to the claim for lost wages, and the Ninth Circuit struck the

16

claim for medical expenses because no numerical figure was specified. Here, Singh did

17

something in between. He provided a number, but qualified that number by adding that his

18

claim would exceed that number. Dkt. No. 1 at 6. However, there is a factually similar

19

case in this circuit, Jacobson, and the Court finds it persuasive. 276 F. Supp. 2d 1106.
One of the issues in Jacobson is nearly identical to the one presented here: whether

20
21

a statement in a Form 95 against the USPS stating that the plaintiff’s damages “totaled

22

‘[i]n excess of $100,000.00’” was a sum certain. Id. at 1107 (internal quotations marks

23
24
25
26
27
28

2

Blair distinguished cases the United States cites here to argue Singh failed to provide a
sum certain. 304 F.3d at 867 (citing Caidin v. United States, 564 F.2d 284, 286 (9th Cir.
1977) (finding no sum certain because claimant stated a dollar amount applying to a class
of claimants, not himself, thus failing to provide a statement personal damages), Bailey v.
United States, 642 F.2d 344, 347 (9th Cir. 1981) (claimant submitted bills and wage
statements instead of a sum certain or a form); Caton v. United States, 495 F.2d 635 (9th
Cir. 1974) and Avril v. United States, 461 F.2d 1090 (9th Cir. 1972) (claimant failed to
provide a specific dollar amount in his claim)). The Court finds these cases unpersuasive
here, on the same grounds the Ninth Circuit distinguished them in Blair.
Case No. 16-cv-01919 NC
6

1

and brackets in original). The Court found the “in excess of” language to be “surplusage,”

2

and allowed the remaining language (i.e., the dollar amount) to be left in as the sum

3

certain. Id. at 1109. The Court found that its holding was not at odds with Blair, and that

4

various courts nationally also struck such language from claims while allowing the dollar

5

amounts that were specified to be considered the sum certain. Id. (collecting cases). The

6

Court agrees that Jacobson is not at odds with Blair. Both cases demonstrate that the sum

7

certain requirement, while essential, is not meant to by itself block meritorious claims.

8
9

Lastly, the Court is unpersuaded by the United States’ arguments at the hearing on
this motion. In response to the Court’s inquiry as to whether Singh would be prejudiced if
the Court found it lacked subject matter jurisdiction because he had not specified a sum

11
United States District Court
Northern District of California

10

certain, the United States’ attorney James Scharf suggested Singh would not be prejudiced

12

because he could seek relief from his attorney Omar I. Habbas’ malpractice insurance

13

carrier. Dkt. No. 32, December 21, 2016, Hearing. As the alleged victim of a government

14

tort, the Court disapproves of the government’s suggestion that the Court should not

15

consider whether it would “hurt Mr. Singh” to throw this case out of court because his

16

attorney’s malpractice carrier would make him whole.

17
18
19

Thus, the Court finds that it does have subject matter jurisdiction over Singh’s case.
B.

Singh May Amend His Administrative Claim.

In Singh’s amended motion to amend, he seeks a greater amount from the United

20

States “because certain information relating to the amount of his damages was only

21

discoverable” after he presented his claim to the USPS. Dkt. No. 31 at 4. The United

22

States opposes this motion because it argues Singh presented no evidence his condition

23

“significantly and unforeseeably worsened” in a way that would increase his damages after

24

he submitted his claim. Dkt. No. 29 at 7.

25

28 U.S.C. § 2675(b) provides that a lawsuit filed against the government may not be

26

filed for an amount exceeding the amount presented in the claim to the agency, “except

27

where the increased amount is based upon newly discovered evidence not reasonably

28

discoverable at the time of presenting the claim to the federal agency, or upon allegation
Case No. 16-cv-01919 NC

7

1

and proof of intervening facts, relating to the amount of the claim.” (emphasis added). An

2

administrative claim is deemed “presented” when the USPS receives an executed Standard

3

Form 95. Smith v. United States, No. 10-cv-00212 WHA, 2011 WL 4551471, at *5 (N.D.

4

Cal. Oct. 3, 2011) (determining plaintiff need not amend administrative claim after he

5

presented it to the USPS with information he discovered after the presentment).

6

Section 2675(b) provides plaintiff two ways to increase the amount provided in the

7

administrative claim. The first is through “newly discovered evidence” that was not

8

“discoverable” when the claim was presented. Lowry v. United States, 958 F. Supp. 704,

9

710 (D. Mass. 1997); see also Von Bargen v. United States, No. 06-cv-04744 MEJ, 2009
WL 1765767, at *2 (N.D. Cal. June 22, 2009). Second, a plaintiff may present “allegation

11
United States District Court
Northern District of California

10

and proof of intervening facts.” Id. The burden is on the plaintiff to show one of the two

12

exceptions apply. Salcedo-Albanez v. United States, 149 F. Supp. 2d 1240, 1243 (S.D.

13

Cal. 2001). When determining if a plaintiff satisfies one of the exceptions in § 2675(b),

14

the court applies an objective standard. Von Bargen, 2009 WL 1765767, at *2 (citing

15

Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988)).

16

The Ninth Circuit has not issued much guidance regarding § 2675(b). Resnansky v.

17

United States, No. 13-cv-05133 DMR, 2015 WL 1968606, at *3 (N.D. Cal. May 1, 2015).

18

In Richardson v. United States, the Ninth Circuit held a plaintiff could not seek damages

19

beyond the amount provided in the administrative claim if the plaintiff’s injuries were

20

“reasonably foreseeable” at the time the claim was filed. 841 F.2d at 999; see also

21

Resnansky, 2015 WL 1968606, at *3. The Court in Resnansky provided guidance as to

22

reasonable foreseeability: “[a] plaintiff should not be charged with knowing what his or

23

her medical providers do not articulate, nor is a plaintiff required to obtain additional

24

medical information through procedures not otherwise ordered or suggested.” 2015 WL

25

1968606, at *6. When valuing a claim, a claimant need not account for “conceivable but

26

unlikely risks,” but is accountable for “all present information, including his or her own

27

symptoms as well as the providers’ advice, prognoses and recommendations.” Id. Lastly,

28

a court should examine the claimant’s medical condition over time, “including ongoing
Case No. 16-cv-01919 NC

8

1

symptoms and periods of recovery or deterioration,” when determining “reasonable

2

foreseeability.” Id. The Court does not require a plaintiff to speculate as to the worst-case

3

scenario. See id. at *4; but see Von Bargen, 2009 WL 1765767, at *2.
Here, it is not disputed Singh’s condition fluctuated between periods of

5

improvement and deterioration from the time of his accident to the presentment of his

6

claim in October, 2015. Smith, 2011 WL 4551471, at *5. That is not the issue; rather, the

7

issue is the reasonable foreseeability of the information provided by Dr. Barchuk and the

8

other specialists regarding Singh’s injuries and their consequences, and whether that

9

information supports the difference between the amount Singh requested in his Form 95 in

10

October, 2015 (exceeding $100,000), and the amount now requested ($1,800,000). If the

11
United States District Court
Northern District of California

4

information was not reasonably foreseeable, the question is whether that determination is

12

based on newly discovered evidence or intervening facts.

13
14

1.

Reasonable Foreseeability

Singh argues that his ability to continue working as an HVAC technician and the

15

inconsistent nature of his recovery process from his injuries “rendered his damages

16

uncertain and unforeseeable.” Dkt. No. 30 at 2; Dkt. No. 31 at 14. He provides that his

17

inconsistent recovery was the reason he consulted with Dr. Barchuk for the life care

18

planning report. Dkt. No. 31 at 12.

19

The Court agrees that Singh’s condition fluctuated between improvement and

20

deterioration over the approximate year and a half between the accident and Singh’s

21

presentment of his claim. Resnansky, 2015 WL 1968606, at *6. The Court also agrees

22

that Singh would not foresee the prognosis Dr. Barchuk would provide, based on the more

23

conservative medical care he was receiving. Id. For example, in 2015, Singh’s care

24

consisted of physical therapy, epidural injections, and prescription medication. See e.g.,

25

Dkt. No. 28-1 at 110-11, 113, 115, 120, 123, 133. On the other hand, the Court must hold

26

Singh accountable for his knowledge before filing the claim, including his “own symptoms

27

as well as the providers’ advice, prognoses and recommendations.” Resnansky, 2015 WL

28

1968606, at *6. The more difficult question here is Singh’s knowledge and his symptoms.
Case No. 16-cv-01919 NC

9

1

The fact Singh went to Dr. Barchuk for an evaluation suggests Singh foresaw he might

2

need to increase his administrative claim. Richardson, 841 F.2d at 999. It is also true that

3

at his last appointment before filing the Form 95 with Dr. Li on July 20, 2015, Singh

4

expressed concern he might need an MRI. Dkt. No. 28-1 at 139. Notably absent,

5

however, was a discussion regarding whether surgery or an MRI would actually be needed.

6

Id. at 137-39.

7

Yet there is no evidence his doctors suggested the grim diagnosis Dr. Barchuk

8

provided in November, 2014. See e.g., Dkt. No. 28-1 at 163 (finding Singh would require

9

intermittent physical therapy in the future, and that because his cervical fusion caused an
increased risk for accelerated degenerative changes around the area of fusion, the condition

11
United States District Court
Northern District of California

10

would have to be monitored for life). Attributing to Singh the knowledge of what Dr.

12

Barchuk and the other specialists later informed him of would be akin to forcing Singh to

13

speculate a more dire prognosis than his current treatment informed him would come to

14

pass. Resnansky, 2015 WL 1968606, at *6. Thus, the Court finds that Singh’s damages

15

were not reasonably foreseeable when he filed his administrative claim.

16

2.

Applicability of § 2675(b) Exceptions

17

Singh argues the increase in the amount claimed falls under both § 2675(b)

18

exceptions, meaning that the amount is supported both by newly discovered evidence and

19

intervening facts. Dkt. No. 31 at 10. As far as newly discovered evidence, Singh contends

20

“Dr. Barchuk did not merely confirm previous diagnoses,” his report anticipated Singh

21

would require additional spinal surgery. Id. According to Singh, this is newly discovered

22

evidence, the discovery of which justifies increasing his claim. Id. The Court agrees.

23

Even though information regarding Singh’s more serious condition “existed” when the

24

claim was filed, it “was ‘not discoverable’ at that time” because Dr. Barchuk’s report had

25

not yet been provided to Singh. Resnansky, 2015 WL 1968606, at *3 (quoting Von

26

Bargen, 2009 WL 1765767, at *2).

27
28

As for intervening facts, Singh argues that the receipt of Dr. Barchuk’s report in
November, 2015, constitutes such facts, as this information was unavailable to Singh until
Case No. 16-cv-01919 NC

10

1

after presentment of his claim. Dkt. No. 31 at 11. The Court rejects this argument because

2

the only “information or event arising” after filing the claim was Dr. Barchuk’s furnishing

3

of the completed report to Singh. Resnansky, 2015 WL 1968606, at *3 (quoting Von

4

Bargen, 2009 WL 1765767, at *2). The fact that the information Singh needed had not yet

5

been made available does not mean the information materialized out of thin air. Likewise,

6

the Court does not consider the simple furnishing of the report to be an intervening event

7

for purposes of the statute. Thus, the Court finds Singh may amend his claim under the

8

theory of newly discovered evidence. Whether Singh’s information will support the

9

amount he claims he is owed is not a question currently before the Court.

10

United States District Court
Northern District of California

11

IV. CONCLUSION
For the reasons stated above, the Court DENIES the United States’ motion to

12

dismiss for lack of subject matter jurisdiction. The Court GRANTS Singh’s motion to

13

amend his administrative claim.

14
15

IT IS SO ORDERED.

16
17

Dated: February 15, 2017

18

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

19
20
21
22
23
24
25
26
27
28
Case No. 16-cv-01919 NC

11