Johnson et al v. United States of America et al
Filing
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ORDER granting USA's 18 Motion to Dismiss for Lack of Jurisdiction. Court grants the motion to dismiss Plaintiff Mary Jane Dean as a party to this action with prejudice. Signed by Judge Jeffrey T. Miller on 2/21/2012. (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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HEATHER JOHNSON; ROBERT
JOHNSON; and MARY JANE DEAN,
CASE NO. 11cv1378 JM(MDD)
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ORDER GRANTING MOTION TO
DISMISS
Plaintiffs,
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vs.
UNITED STATES OF AMERICA,
Defendant.
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Defendant the United States of America (“USA”) moves to dismiss the claims of Plaintiff Mary
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Jane Dean (“DEAN”) for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal
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Rules of Civil Procedure. Dean opposes the motion. Pursuant to Local Rule 7.1(d)(1), the court finds
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this matter appropriate for decision without oral argument. For the reasons set forth below, the court
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grants the motion to dismiss Dean as a party with prejudice.
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BACKGROUND
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This is one of several actions pending before this court and involving the crash of a
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Navy/Marine Corps F/A-18 jet in a residential area near the Marine Corps Air Station Miramar on
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December 8, 2008. (Compl. ¶18). Plaintiff Dean’s home is in the vicinity of the crash site. Her home
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suffered property damage. (Braley Decl. Exh. A).
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On September 21, 2009 Dean filed an administrative claim with the Department of the Navy
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using Standard Form 95 (“SF 95"). The administrative claim identified property damage in the amount
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of $9,900 and in the section provided for personal injury claims, Plaintiff responded N/A (“Not
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Applicable”). Id. Immediately before the signature, the SF 95 provides: “I CERTIFY THAT THE
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MOUNT OF CLAIM COVERS ONLY DAMAGES AND INJURIES CAUSED BY THE
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ACCIDENT ABOVE AND AGREE TO ACCEPT SAID AMOUNT IN FULL SATISFACTION AND
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FINAL SETTLEMENT OF THIS CLAIM.” Id. Dean executed the SF 95. Id.
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On or about November 9, 2009 the Department of the Navy approved the settlement and
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provided Dean with an Approval of Claim and Settlement Agreement (“Settlement Agreement”).
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Dean executed the Settlement Agreement on November 2nd and the USA on November 24, 2009.
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Among other things, the Settlement Agreement provides that the parties agree “to settle and
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compromise each and every claim of any kind, whether known or unknown, arising directly or
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indirectly from the acts or omissions that gave rise” to Dean’s claim. (Id. ¶1). The Settlement
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Agreement also provided that the payment of $9,900 would satisfy the entirety of Dean’s claim
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including “foreseen and unforeseen bodily and personal injuries.” (Id. ¶4). The Settlement Agreement
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also specifically referred to California Civil Code Section 1542 (providing that a general release does
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not extend to unknown claims); and Dean expressly waived the limitations of a general release under
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Civil Code §1542. The provision also advised Dean that she could consult with an attorney prior to
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signing the agreement. Id.
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One year later, on November 26, 2010, Dean submitted a second SF 95 seeking additional
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compensation for the injuries sustained on December 8, 2008. (Braley Decl. Exh. C). Dean sought
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$600,000 for her personal injuries. Id. By letter dated December 22, 2010, the Department of the
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Navy denied the claim noting that the Settlement Agreement satisfied Dean’s claims. (Braley Decl.
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Exh. D).
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In light of the above identified factual record, USA moves for dismissal of Dean’s action on
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the ground that federal law prevents Dean from asserting any claim encompassed within the Settlement
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Agreement. Dean opposes the motion.
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DISCUSSION
The FTCA
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The FTCA provides for a limited waiver of sovereign immunity. Se 28 U.S.C. §§2671 et seq.
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As a prerequisite to filing suit, a claimant must pursue and complete the administrative claims
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procedures. 28 U.S.C. §2675(a). “The FTCA bars claimants from bringing suit in federal court until
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they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113
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(1993). The administrative claim requirement is jurisdictional and cannot be waived. Id.
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Once a claim is favorably adjudicated, claimant cannot pursue a claim against the United
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States. Schwarder v. United States, 974 F.2d 1118, 1124 (9th Cir. 1992). In Schwarder, the Ninth
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Circuit discussed the applicability of state law to FTCA actions. While recognizing that state law
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complements the FTCA, the Ninth Circuit concluded, “as a matter of federal law, that an
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administrative settlement reached pursuant to section 2672 bars further claims by the settling party,
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without regard to the effect it would have as a matter of state law.” Id. The applicable FTCA
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provision provides:
The acceptance by the claimant of any such award, compromise, or settlement shall be
final and conclusive on the claimant, and shall constitute a complete release of any
claim against the United States ... by reason of the same subject matter.
28 U.S.C. §2672.
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Here, USA comes forward with sufficient evidence to show that Dean reached an
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administrative settlement with the Department of the Navy and that any transactionally related claims,
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like those identified in Dean’s second administrative claim, are barred by operation of 28 U.S.C.
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§2672. The record reveals that Dean waited ten months after the accident before filing the first
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administrative claim.1 On the SF 95, Dean listed her total property damages as $9,900 and responded
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“N/A” for personal injuries. The Government reached a Settlement Agreement with Dean in which
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the parties agreed “to settle and compromise each and every claim of any kind, whether known or
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unknown, arising directly or indirectly from the acts or omissions that gave rise to” Dean’s
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administrative claim. (Braley Decl. Exh. B). Moreover, the Settlement Agreement provided that the
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amount of the settlement would satisfy the entirety of Dean’s claims including “foreseen and
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unforeseen bodily and personal injuries.” Id.
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The court concludes that the release contained in the settlement agreement is valid and binding
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The court highlights that Dean had ten months in which to assess her property and personal
injuries. This is not a case where the parties rushed to obtain a settlement. Dean had many months
to contemplate, deliberate, and seek advice on the nature of her injuries and the administrative claims
procedures of the FTCA.
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under either federal or state law. Under either state or federal law, a settlement agreement procured
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by “fraud” is not enforceable. 28 U.S.C. §2672. As state law principles complement the FTCA,
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Schwarder, 974 F.2d at 1124, Dean argues that the Settlement Agreement was obtained as a result of
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fraud in the factum. The fraud in the factum argument rings hollow. In broad brush, fraud in the
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factum is defined as “[m]isrepresentation as to the nature of a writing that a person signs with neither
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knowledge nor reasonable opportunity to obtain knowledge of its character or essential terms.”
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Black’s Law Dictionary 661 (6th ed. 1990). Stated another way, where a releasor “is under a
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misapprehension, not of his own neglect, as to the nature and the scope of the release, and if this
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misapprehension was induced by the misconduct of the releasee, then the release, regardless of how
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competently worded, is binding only to the extent actually intended by the releasor.” Casey v. Proctor,
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59 Ca.2d 97, 103 (1963).
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Dean simply falls woefully short of demonstrating fraud. Dean argues that the following
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misrepresentation, contained in a cover letter accompanying the transmission of the SF 95, constitutes
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a material misrepresentation:
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Claims for property damage and/or personal injury or wrongful death caused by the
negligence of a government employee acting within the scope of employment are
payable under various federal statutes. . . . In order for us to adjudicate your claim fairly
and quickly, please fill out the SF-95 according to the following directions.
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(Dean Exh. 3).
According to Dean, the introductory paragraph of the cover letter is materially
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misleading because she reasonably believed, based on the “and/or” language, that she could file the
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property claim, and then, at some unidentified future point in time, she could submit a separate claim
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for personal injury. The court rejects Dean’s argument that this provision is materially misleading.
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Not only does Dean seek a strained interpretation of this introductory paragraph, but the claim form
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submitted by Dean specifically disclaimed any personal injury or wrongful death. The claim form
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clearly and concisely disclaims any personal injury. The instructions specifically informed Dean to
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indicate N/A if she did not claim “personal injury or wrongful death.” (Dean Exh. 3 ¶10). With
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respect to personal injury, Dean disclaimed any such injury. The court further rejects Dean’s argument
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because, not only does Dean fail to establish any misconduct on the part of USA, but the language in
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the Settlement Agreement specifically advised her that the contemplated settlement compromised any
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claim, known or unknown, including “foreseen and unforeseen bodily and personal injuries.” (USA
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Exh. B ¶4).
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In sum, viewing the entirety of the record, Dean fails to present any evidence that the
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Settlement Agreement was procured by fraud. Accordingly, the court grants the motion to dismiss
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Dean as a party to this action with prejudice.
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IT IS SO ORDERED.
DATED: February 21, 2012
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Hon. Jeffrey T. Miller
United States District Judge
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cc:
All parties
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