Michell et al v. United States of America et al

Filing 87

ORDER Denying 71 Motion to Amend Complaint. Signed by Judge Barry Ted Moskowitz on 8/23/11. (All non-registered users served via U.S. Mail Service)(ecs)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FRANK W. MICHELL, et al.,

Case No. 09cv387 BTM(BGS)
Plaintiffs,

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ORDER DENYING MOTION TO
AMEND COMPLAINT

v.
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UNITED STATES OF AMERICA;
COURTNEY NUNEZ,
Defendants.

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Plaintiffs Lori Nunez and Luis Nunez IV (“Plaintiffs”) have filed a motion to amend

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their complaint to re-name “Nominal Defendant” Courtney Nunez as a Plaintiff in this matter,

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or, in the alternative, to join Courtney Nunez as a necessary party. For the reasons

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discussed below, Plaintiffs’ motion is DENIED.

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I. BACKGROUND

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This litigation arises out of a series of accidents on August 27, 2006, on State Route

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94, in San Diego County. Frank Modica, who was riding a motorcycle, was involved in a

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collision with a bicyclist. The United States Border Patrol arrived at the scene of the accident

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and, according to Plaintiffs, parked their vehicles in such a manner as to unreasonably block

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the road and traffic. A group of motorcycle riders came upon the scene at different times and

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crashed due to the blockage. Luis S. Nunez, III (“Nunez”), suffered fatal injuries.
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09cv387 BTM(BGS)

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On or about August 12, 2008, Lori Nunez, Nunez’s widow, and Luis Nunez IV,

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Nunez’s son, filed administrative claims with the U.S. Customs and Border Protection

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Agency. (Gov’t Exs. 1, 2.) On or about November 10, 2008, the claims were denied. (Id.)

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On March 9, 2009, Lori Nunez and Luis Nunez IV filed their action against the United

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States, asserting claims for negligence and wrongful death. Plaintiffs named Courtney

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Nunez (“Courtney”), Nunez’s daughter, as a nominal defendant because Plaintiffs were

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unable to obtain her consent to participate in the action. Plaintiffs have since obtained

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Courtney’s consent and seek to amend their complaint to re-name her as a Plaintiff.

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II. DISCUSSION

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The United States opposes Plaintiffs’ motion to re-name Courtney Nunez as a Plaintiff

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on the ground that the Court lacks subject matter jurisdiction over Courtney’s claims. As

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discussed below, the Court agrees that it lacks subject matter jurisdiction over Courtney’s

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claims because she did not exhaust her administrative remedies under the Federal Tort

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Claims Act (“FTCA”).

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The FTCA waives sovereign immunity for claims against the federal government

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arising from torts committed by federal employees who are acting within the scope of their

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employment. 28 U.S.C. §§ 1346(b)(1), 2679(d)(1). The FTCA requires that claimants under

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the FTCA exhaust administrative remedies before filing suit:

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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.
28 U.S.C. § 2675(a).

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The FTCA also provides:

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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 claim accrues or unless action is begun within six months after the date
of mailing . . . of notice of final denial of the claim by the agency to which it was
presented.

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28 U.S.C. § 2401(b). The time limits set forth in § 2401(b) are jurisdictional and cannot be

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extended by estoppel or equitable tolling.

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(9th Cir. 2009).

Marley v. United States, 567 F.3d 1030, 1038

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The Ninth Circuit has “repeatedly held that the exhaustion requirement is jurisdictional

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in nature and must be interpreted strictly.” Vacek v. United States Postal Service, 447 F.3d

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1248, 1250 (9th Cir. 2006). As explained by the Ninth Circuit:

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This is particularly so since the [Act] waives sovereign immunity. Any such
waiver must be strictly construed in favor of the United States. Section 2675(a)
establishes explicit prerequisites to the filing of suit against the Government in
district court. It admits of no exceptions. Given the clarity of the statutory
language, we cannot enlarge that consent to be sued which the Government,
through Congress, has undertaken so carefully to limit.

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Jerves v. United States, 966 F.2d 517, 521 (9th Cir.1992) (internal quotations and citations
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omitted)
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It is undisputed that Courtney never filed her own administrative claim and was not
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mentioned in the administrative claim filed by Plaintiffs. The fact that Courtney’s mother and
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brother filed their own administrative claims does not excuse Courtney from filing her own
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claim. See, e.g., Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983) (holding that
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although plaintiff’s husband, a serviceman who was injured in an automobile accident, filed
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an administrative claim and identified plaintiff as his spouse, the district court lacked subject
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matter jurisdiction over plaintiff’s loss of consortium claim because she had failed to exhaust
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the FTCA’s procedures).
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Courts have relaxed the exhaustion requirements in cases involving minor children,
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allowing claims of minor children to proceed even if the children did not file separate
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administrative claims. Hilburn v. United States, 789 F. Supp. 338, 341 (D. Hawaii 1992).
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Courtney, however, was not a minor at the time Plaintiffs’ administrative claims were filed.
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(See Doc. No. 83.)
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Therefore, Courtney has not complied with the exhaustion requirements of the FTCA,
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and the Court lacks subject matter jurisdiction over her claims. Accordingly, it would be futile
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for Plaintiffs to re-name Courtney as a Plaintiff.
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Plaintiffs argue that Courtney is a necessary party under California law because she
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09cv387 BTM(BGS)

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is an heir of the decedent and has standing to bring a wrongful death claim. However, as

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already discussed, Courtney failed to exhaust her administrative remedies, and the Court

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lacks subject matter jurisdiction over any wrongful death claim by her. Therefore, Courtney

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is not a necessary party to the adjudication of the wrongful death case brought by her mother

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and brother.

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III. CONCLUSION
For the reasons set forth above, Plaintiffs’ motion to amend their complaint to re-name
Courtney Nunez as a Plaintiff in this action is DENIED.
IT IS SO ORDERED.

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DATED: August 23, 2011

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Honorable Barry Ted Moskowitz
United States District Judge

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