Walker v. Phelps et al

Filing 52

MEMORANDUM AND ORDER - adopting Report and Recommendations re 48 Report and Recommendations; granting 43 Motion to Dismiss for Lack of Subject Jurisdiction; dismissing as moot 28 Motion to Amend; The Complaint (DI 1 ) is dismissed with prejudice (CASE CLOSED). Signed by Chief Judge Gregory M. Sleet on 6/25/2014. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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GORDON S. WALKER, SR.,
Plaintiff,
v.

UNITED STATES OF AMERICA,
Defendant.

C.A. No. 11-866-GMS-CJB

MEMORANDUM
I.

INTRODUCTION

On September 26, 2011, the plaintiff filed a negligence suit against the defendant United
States of America (the "Government") pursuant to the Federal Tort Claims Act ("FTCA"), 28
U.S.C. § 2671, et seq. (D.I. 1.) On June 27, 2013, the Government filed a Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(l). (D.I. 43.) The Government argues that the
court lacks subject matter jurisdiction because the plaintiff filed the suit prematurely and failed to
exhaust his administrative remedies by not allowing the government agency six months to
consider his claim as required by the FTCA. (D.I. 44.) Pending before the court are Magistrate
Judge Burke's Report and Recommendation, (the "Rand R"), dated October 31, 2013 (D.I. 48),
the plaintiffs Objections to Report and Recommendation (D.I. 49), and the Government's
Response to the plaintiffs Objections (D.I. 50).

For the reasons discussed, the court will

overrule the plaintiffs objections, and adopt the Rand R, which recommends that the court: (1)
grant the Government's motion to dismiss for lack of subject matter jurisdiction; and (2) dismiss
the plaintiffs Complaint with prejudice.

II.

BACKGROUND 1
On September 28, 2009, a car driven by Donna Phelps ("Phelps") rear-ended a car driven

by the plaintiff. (D.I. 48 at 1.) At the time of the incident, Phelps was an employee ofthe United
States Postal Service ("USPS"). (!d.) On February 3, 2010, Phelps's insurance carrier denied
coverage for the plaintiffs claim, noting that at the time of the loss, Phelps was working for the
USPS. (!d. at 1-2.)
On February 26, 2010, the plaintiffs counsel sent a letter to the USPS that included a
copy of the police report regarding the accident and the letter from Phelps's insurance carrier
denying coverage, but the letter did not include a demand for money damages. (!d. at 2.) The
USPS replied in a letter dated March 5, 201 0, and advised the plaintiff to present a claim on a
Standard Form 95 ("SF95") within two years of the incident. The USPS letter enclosed a copy
of the SF95, as well as instructions that the form must be filled out completely and submitted
with supporting documentation before it would constitute a valid claim. (!d.)
On April 6, 2011, the plaintiffs counsel directed a letter to the USPS that alleged facts
regarding the incident, provided details regarding the plaintiffs medical condition, and
demanded $125,000 for injuries sustained in the accident. The letter, along with an incomplete
SF95 form regarding the accident, was marked as received by the USPS on April26, 2011. (!d.)
That same day, the USPS sent the plaintiff a letter indicating that his last correspondence could
not be accepted as a valid claim; specified the particular boxes that had been left blank on the
incomplete SF95; and enclosed a new SF95 along with instructions that the form should be
completed and resubmitted before the USPS could take any action to dispose of the claim. (!d. at
1

The court adopts Magistrate Judge Burke's factual and procedural background in its entirety.
(D.I. 48 at 1-4.) For convenience and clarity, however, the court highlights pertinent dates in its
memorandum.
2

3.)

On May 16, 2011, the USPS received the plaintiffs fully completed SF95. (Id.) On May
19, 2011, the USPS mailed the plaintiff a letter that acknowledged April 26, 2011 as the date of
the plaintiffs claim, and informed the plaintiff that "by Statute, the Postal Service has six
months from April26, 2011 in which to adjudicate your claim." (Id. quoting D.l. 44, Ex. 7.)
On September 26, 2011, the plaintiff filed his Complaint in the instant case against both
Phelps and the Government. (D.I. 1.) Less than a month later, on October 20,2011, the USPS
denied the plaintiffs administrative claim on the grounds that Phelps was not acting within the
scope ofher employment at the time of the incident. (D.I. 48 at 4.) In that letter, the USPS
indicated that any lawsuit filed in regards to the denial must be filed within six months of
October 20, 2011. (Id.) On January 13, 2012, the Government filed an Answer in the instant
action that acknowledged Phelps was operating a vehicle within the scope of her employment,
and also prepared a stipulation (later granted) to remove Phelps as a defendant. (D.I. 7, 9, 10.)
On June 27, 2013, the Government filed the instant motion to dismiss. 2 (D.I. 43.)

III.

STANDARD OF REVIEW

The court conducts a de novo review when determining whether to adopt a magistrate
judge's decision on a dispositive matter. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(3).
Upon review, the court may accept, reject, or modify the magistrate judge's recommendations.

2

The Government argues that the court does not have subject matter jurisdiction because the
plaintifffailed to exhaust his administrative remedies and filed his September 26, 2011 Complaint
prematurely. The Government's argument rests on the presumption that the plaintiff presented a valid
claim on April26, 2011 --thereby giving the USPS until October 26, 2011 (six months from the date of
filing) to dispose of the claim before the plaintiff could bring suit under the FTCA. (D.I. 44 at 2; D.I. 47
at 1.) Additionally, the Government contends that the plaintiffs Complaint must be dismissed with
prejudice because he did not cure the jurisdictional defect by refiling his complaint by April 20, 2012 -six months after the USPS's October 20, 2011 denial of his administrative claim. (0.1. 47 at 3.)

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Fed. R. Civ. P. 72(b)(3). The court may also choose to receive further evidence or to return the
matter to the magistrate judge with instructions. !d.
IV.

DISCUSSION
The plaintiff presents six objections to Magistrate Judge Burke's Rand R. The court will

address the objections in turn.
The plaintiff challenges the magistrate judge's legal conclusion that "April 26, 2011 is
the earliest date that the plaintiffs claim could have been deemed to be 'presented."' (D.I. 48 at
12.) The plaintiff does not challenge the magistrate judge's fact-finding that the February 26,
201 0 written communication with the USPS did not reflect a claim for "sum certain" damages.
Rather, he argues that the magistrate judge erred by not presenting a legal explanation as to why
the April25, 2011 and May 13, 2011 amendments do not "relate back" to the February 26, 2010
submission. (D.I. 49 at 3.) The plaintiff contends that the April and May 2011 amendments
cured his improperly presented February 2010 claim because the amendments occurred within
the time limitations of 28 C.F.R § 14.2(c) --"any time prior to final agency action or prior to the
exercise of the claimant's [deemed denial] option under 28 U.S.C. 2675(a)." (!d. at 4 (quoting 28
C.F.R § 14.2(c) (alteration in original)).) The court disagrees. 3
The plaintiff tactically omits pertinent language from section 14.2(c), which states: "[a]

claim presented in compliance with paragraph (a) of this section may be amended by the
claimant at any time prior to final agency action or prior to the exercise of the claimant's option
under 28 U.S.C. § 2675(a)."

28 C.F.R § 14.2(c). The magistrate judge correctly determined

that "in order to be a valid claim, [under section 14.2(a),] a claim must include at the minimum:
3

The court notes that the plaintiff's own submissions undermine his argument that February 26,
2010 should be the date of his claim. His May 13, 2011 alleged "amendment" included a fully completed
SF95 signed by the plaintiff that listed his "Date of Claim" as April25, 2011. (See D.l. 44, Ex. 6.)
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(1) an executed SF95 or other written notification of the incident; (2) a claim for a sum certain of
money damages for injury alleged to have resulted from the incident; and (3) if the claim is filed
on behalf of the claimant, evidence of authority to represent a claim on behalf of the claimant. "4
(D.I. 48 at 9 (citing Obeng v. Del. State Police, No. 04-1248-GMS, 2005 WL 1592951, at *2 (D.
Del. Jul. 7, 2005)).) As noted above, the plaintiff does not dispute that the February 26, 2010
written communication lacked a claim for a sum certain of money damages. (D.I. 49 at 3.) As
such, the February 26, 2010 written communication was not "presented in compliance with
[section 14.2(a)] . . . . " 28 C.F.R § 14.2(c). Therefore, the court concludes that the plain
language of section 14.2(c) precludes the April and May 2011 submissions from being
"amendments" to the plaintiffs noncompliant February 26,2010 written communication.
Similarly, the court finds that three of the plaintiffs remaining objections regarding the
Government's waiver of a jurisdiction defense, whether the USPS's October 20, 2011 letter was
a valid denial under section 2401 (b), and the applicability of FTCA' s savings clause 5 lack
sufficient merit to warrant an extensive discussion.

(D.I. 49 at 7-9.) The magistrate judge

correctly determined that the FTCA's "requirement of a final denial and exhaustion of

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Section 14.2(a) states that "a claim shall be deemed to have been presented when a Federal
agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard
Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum
certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the
incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his
authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian,
or other representative." 28 C.P.R.§ 14.2(a) (emphasis added).
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Under 28 U.S.C. § 2679(d)(5), if a federal employee is improperly sued, and the United States is
substituted as the proper party defendant under the FTCA, and then the plaintiff files an administrative
claim with a Federal agency, that claim can be deemed timely presented under some circumstances.
Specifically, if the claim would have been timely on the date the Complaint against the individual
employee was filed in court, and "if the claim is presented to the appropriate Federal agency within 60
days after dismissal of the civil action," the claim will be deemed timely filed under the FTCA.

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administrative remedies is an unambiguous jurisdictional requirement that cannot be waived."6
(D.I. 48 at 8.)

Likewise, the magistrate judge properly rejected the plaintiffs argument

regarding the USPS's October 20, 2011 letter. (!d. at 21 n.12.) That letter unequivocally states
that "the [plaintiffs] claim is denied" and "[i]n accordance with 28 U.S.C. § 2401(b) ... , if
dissatisfied with the [USPS's] final denial of an administrative claim, a claimant may file suit in
a United States District Court no later than six (6) months ... from the date of the mailing of this
letter, which is the [October 20, 2011] date shown above." (D.I. 44, Ex. 8.) Finally, the FTCA's
savings clause, which only applies where the United States is substituted as the party defendant,
has no relevance to the instant matter because the United States was an original defendant in the
case and remains a defendant. See 28 U.S.C. § 2679( d)(5); (D.I. 1; D.l. 48 at 22 n.14).
In addition, the plaintiff objects to the magistrate judge's determination that there is no
basis in the record to support the invocation of equitable tolling.

Specifically, the plaintiff

argues, without citing to any authority, that the USPS has "a duty to investigate [that] arises upon
receipt of any report of [an] accident involving a USPS employee," and that it failed to
investigate his claim in February 2010. (D.I. 49 at 5.) Additionally, the plaintiff reasserts his
argument that the USPS's May 19, 2011 letter -- "indicating an impending denial of [the]
[p]laintiffs administrative claim for lack of liability"-- was affirmative and intentional conduct
that led him to prematurely file the FTCA lawsuit. (Id at 6.) In essence, the plaintiff contends
that had liability been established, he would not have filed the lawsuit in federal court against
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The Supreme Court has found that premature FTCA suits impose a burden on the judicial
system and that "[t]he most natural reading of the [FTCA] indicates that Congress intended to require
complete exhaustion of Executive remedies before invocation of the judicial process." McNeil United
States, 508 U.S. 106, 112 (1993). Similarly, the Third Circuit has held that the FTCA's final denial
requirement, which precludes suit against the United States unless the claim is first be presented to the
relevant federal agency and subsequently denied, "is jurisdictional and cannot be waived." Lightfoot
United States, 564 F.3d 625, 626-27 (3d Cir. 2009) (citation omitted).

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Phelps and the Government on September 26, 2011, two days before the expiration of
Delaware's two-year statute of limitations applicable to tort claims. (!d.) Alternatively, the
plaintiff asserts that the Government's conduct after January 13, 2012 is relevant in determining
whether equitable tolling of section 2401 (b)'s six month statute of limitations is appropriate.

(!d.) The plaintiff contends that if the Government had raised the jurisdictional challenge earlier,
he would have re-filed the complaint before April 20, 2012 (the six-month deadline to appeal the
USPS's October 20, 2011 final denial letter). (D.I 46 at 7-8.)
The court finds that the magistrate judge correctly determined that the extraordinary
remedy of equitable tolling is inappropriate because the "record . . . does not indicate that the
Government ... made affirmative misrepresentations with the deliberate intent to induce or trick
[the] [p]laintiff into failing to protect his federal rights." (D.I. 48 at 17.) The record clearly
reflects that the USPS informed the plaintiff on March 5, 2010, that he had to submit a
completed SF95 form with supporting documentation before his paperwork would constitute a
valid claim. (See D.I. 46, Ex. 5.) Further, the plaintiff mischaracterizes the May 19, 2011 letter,
which simply stated that the USPS was "currently in the process of reviewing th[ e] claim in
order to make the determination as to any legal liability on the part of the [USPS]." (!d., Ex. 9.)
Finally, the Government's failure to raise the jurisdiction issue earlier in the litigation is not an
active misrepresentation because the record does not suggest that the Government intentionally
delayed in raising the issue in order to prejudice the plaintiff. (D.I. 48 at 22.)
In the plaintiffs final objection, he argues that prejudicial dismissal is inappropriate
under the circumstances. The plaintiffs argument, however, is based on objections that the court
considered and rejected above. In addition, the plaintiff contends that the recommendation to

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grant the motion to dismiss with prejudice was made "without reference to any legal support or
factual reasoning." (D.I. 49 at 9-10.) The court disagrees. Magistrate Judge Burke's ultimate
conclusion is supported by the record and Third Circuit precedent:
In the end, this is a case where the [p]laintiff filed suit a few weeks
prematurely, depriving the [c]ourt of subject matter jurisdiction over the
claim. It is true that, had the [p ]laintiff waited just a short period more, and
then filed suit (or later timely re-filed suit), a different result may have
come about. But nothing in the record suggests that this failure to exhaust
administrative remedies came, as the [p]laintiff alleges, in response to
active, deliberate misconduct by the Gove rnment. As in Hedges, here
there is no evidence that the Government "induce[d] or trick[ed] [the
plaintiff] into foregoing his judicial remedies by making any affirmative
misrepresentations regarding the proper avenues to pursue his claim."
[Hedges v. United States, 404 F.3d 744, 752 (3d Cir. 2005)] Under these
circumstances, the burden of the failure to follow the FTCA's
administrative procedures must fall on the [p]laintiff.
While dismissal may appear to be a harsh result, the Third Circuit
has made it clear that procedural requirements established by Congress for
gaining access to the federal courts are not to be disregarded by courts out
of sympathy for particular litigants. !d. at 753. To that end, the Supreme
Court has explained that "in the long run, experience teaches that strict
adherence to the procedural requirements specified by the legislature is the
best guarantee of evenhanded administration of the law." McNeil, 508
U.S. at 113 (internal quotation marks and citation omitted).
(D.I. 48 at 22-23.)

V.

CONCLUSION
After reviewing the record in this case, the October 31, 2013 R and R, the parties'

submissions, and the applicable law, the court finds that the magistrate judge committed no
factual or legal error in reaching his conclusions.

Dated: June

J. 5, 2014

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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GORDON S. WALKER, SR.,
Plaintiff,
v.

UNITED STATES OF AMERICA,
Defendant.

C.A. No. 11-866-GMS-CJB

ORDER

At Wilmington, this 1

if~ day of June, 2014,

IT IS HEREBY ORDERED THAT:
1. The plaintiff's

Objections to the Report and Recommendation (D.I. 49),

IS

OVERRULED;
2. The Report and Recommendation, dated October 31, 2011 (D.I. 48), is ADOPTED;
3. The defendant's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1)
(D.I. 43), is GRANTED;
4. The plaintiff's Complaint (D.I. 1), is DISMISSED with prejudice; and
5. The plaintiff's Motion to Amend Federal Tort Claim 7 (D.I. 28), is DISMISSED as moot.

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The plaintiffs motion seeks to amend the amount of damages in his Federal tort claim.