Rodgers et al v. Mammoth Cave National Park et al
Filing
23
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 1/10/2017 granting 13 Motion for Leave to File First Amended Complaint. cc: Counsel(JWM)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
_______________________________________________________
)
SANDRA RODGERS, as Administratrix of )
The Estate of Michelle A. Meredith and
)
RONALD MEREDITH, as Administrator of )
The Estate of Donald R. Meredith
)
)
PLAINTIFFS
) Civil Action No. 1:16cv-00022-GNS
v.
) JUDGE GREG N. STIVERS
)
MAMMOTH CAVE NATIONAL PARK
)
and UNITED STATES OF AMERICA
)
)
DEFENDANT
)
_____________________________________________________________
MEMORANDUM OPINION AND ORDER
Before the Court is the Plaintiffs’ motion to amend their complaint, DN 13. The
Defendants have responded in opposition at DN 20 and the Plaintiffs have replied at
DN 22.
Nature of the Case
According to the Plaintiffs’ Complaint (DN 1), on March 3, 2015, Michelle and
Donald Meredith were traveling by automobile through Mammoth Cave National Park.
The Green River runs through the park and the Green River Ferry transports vehicles
across the river. Plaintiffs allege that the Merediths drove their vehicle onto the ferry but
accidentally drove through the barrier on the opposite end, plunging into the river where
they drowned.
The Plaintiffs, representatives of the Merediths’ estates, filed this action on
March 2, 2016, citing jurisdiction under the Suits in Admiralty Act, 46 U.S.C. § 30901 et
seq. or, in the alternative, the Public Vessels Act, 46 U.S.C. § 31101 et seq. The
complaint alleges that the Defendants’ operation of the ferry breached a variety of duties
owed to the Merediths as passengers.
On November 9, 2016, the Defendants filed a motion to dismiss the case for lack
of jurisdiction (DN 12). Defendants argue in that motion that the Green River is not a
navigable waterway for purposes of establishing admiralty jurisdiction at the location of
the accident. As such, the Defendants contend the limited waivers of sovereign immunity
in the Suits in Admiralty Act and Public Vessels Act do not apply in this case.
Although Plaintiffs contend there is no connection with the Defendants’ motion to
dismiss, on December 1, 2016, they filed the subject motion seeking leave to file a first
amended complaint. The amended complaint adds an additional jurisdictional basis
under the Federal Tort Claims Act (“FTCA”), in accordance with 28 U.S.C. § 1346(b)
(DN 13-1).
Plaintiffs’ Motion to Amend
In order to maintain an action against the United States under the FTCA, a
claimant must first have presented the claim to the appropriate federal agency and had the
claim denied or no action taken by the agency within six months from the date of
presentation. 28 U.S.C. § 2675(a). A claim is presented by way of Standard Form 95 or
other written notification of the incident.
28 C.F.R. § 14.2(a).
2
Exhaustion of
administrative remedies is a prerequisite to instituting litigation seeking relief under the
FTCA. McNeil v. United States, 5085 U.S. 106, 107 (1993).
Plaintiffs state that, in order to preserve their option to amend the complaint to add
claims under the FTCA, they served administrative claim forms SF-95 on the United
States. They attached copies of the forms and proof of receipt as exhibits to the motion
(DN 13-2 & 13-3). As six months have now elapsed with no responsive action by United
States, Plaintiffs contend that they have exhausted their administrative remedy and are
authorized to amend their complaint to assert a claim under the FTCA.
The Defendants’ Opposition to the Motion to Amend
The Defendants do not contest that Plaintiffs submitted a claim to the United
States Department of the Interior, that the Department of the Interior was the proper
agency to which the claim should have been directed or that the Department has not made
a determination within six months of filing. The Defendants oppose the motion to
amend, however, because the claim was not submitted until after this litigation was
commenced. Defendants point to the language of 28 U.S.C. 2675(a) which requires
exhaustion of administrative remedies before litigation is commenced:
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. The failure of an agency
to make final disposition of a claim within six months after it is filed shall,
at the option of the claimant any time thereafter, be deemed a final denial of
the claim for purposes of this section. The provisions of this subsection
3
shall not apply to such claims as may be asserted under the Federal Rules of
Civil Procedure by third party complaint, cross-claim, or counterclaim.
28 U.S.C. 2675(a)
Defendants argue that McNeil, 508 U.S. 106 makes clear that the administrative
remedy must be exhausted before litigation can be commenced. In that opinion, the
Court concluded that “instituted” as used in § 2675(a) is synonymous with “begun” and
“commence,” and the statute evidences an intent by Congress that complete exhaustion of
remedies is required before invoking the judicial process. Id. at 111-12. The Defendants
further cite Edwards v. District of Colombia, 606 F. Supp. 2d 112, 116-17 (D.D.C. 2009)
and Ortiz-Romany v. United States, 497 F. Supp. 2d 285, 294 (D.P.R. 2007) as
interpreting McNeil to require the institution of a new lawsuit after the exhaustion of
administrative remedies, rather than the amendment of an already-filed complaint. To do
otherwise, these cases hold, would be to render the exhaustion requirement meaningless.
Plaintiffs’ Reply
Plaintiffs assert that an opinion from this District, Tobin v. Troutman, No.
3:98CV-633-H, 2002 U.S. Dist. LEXIS 7105 (W.D. Ky. April 19, 2002), permits the
amendment of the complaint. In Tobin, the court dealt with a taxpayer refund action. An
issue before the court was whether the taxpayer had instituted the litigation within the
applicable statute of limitations under 26 U.S.C. § 6532(a) and 7422(a). The court found
those limitations analogous to the exhaustion requirement under 26 U.S.C. § 2675(a) of
the FTCA. The court analyzed McNeil and the underlying decision by the Seventh
Circuit in detail, and concluded that, while “McNeil did hold that ‘the FTCA bars
4
claimants from bringing suit in federal courts until they have exhausted their
administrative remedies,’ [it] does not necessarily mean that it also held that a plaintiff
may not file a supplemental complaint demonstrating these exhaustion requirements have
been met, thereby properly vesting a federal district court with jurisdiction over the suit.”
Tobin, 2002 U.S. Dist. LEXIS 7105 at *16. Tobin recognized that allowing claimants to
amend premature complaints after exhaustion of administrative remedy might vitiate the
statutory requirement that administrative remedies must be exhausted prior to filing suit.
However, the court further observed that, as a practical matter, in most instances the
government will move to dismiss a case where the administrative remedy has not been
exhausted and the claimant has not filed a supplemental complaint. Id. at 17-18.
Additionally, Plaintiffs point out that their initial complaint asserted admiraltybased claims, and it did not include any FTCA claims. Their amended complaint,
therefore, seeks to institute the FTCA claims subsequent to the exhaustion of their
administrative remedy. This, Plaintiffs argue, differentiates their claims from those in the
cases cited by the Defendants, in which FTCA claims were included in the original
complaints.
Discussion
Pursuant to Fed. R. Civ. P. 15(a)(2), leave to amend a complaint shall be freely
granted “when justice so requires.” In light of this liberal view, “[a] motion to amend a
complaint should be denied if the amendment is sought in bad faith, for dilatory purposes,
results in undue delay or prejudice to the opposing party, or would be futile.” Colvin v.
Caruso, 605 F.3d 282, 294 (6th Cir. 2010).
5
Here, the Defendants contend that
amendment of the complaint would be futile because they failed to exhaust their
administrative remedy under 26 U.S.C. § 2675(a). “A proposed amendment is futile if
the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). The undersigned concludes
that amendment of the complaint would not be a futility.
Tobin, 2002 U.S. Dist. LEXIS 7105, established a precedent in this judicial district
that an amendment to a complaint may cure a premature filing under the FTCA, so long
as the United States has not previously moved to dismiss the complaint, but the court
made clear that this is not a bright-line rule. “The Court qualifies this statement because
this discretionary ruling necessarily turns on the circumstances presented by each motion,
as the unusual procedural posture of the instant case aptly demonstrates.” Id. at *18,
fn. 1.
However, an analysis of the procedural circumstances in this case need not be
undertaken because the Plaintiffs did not assert an FTCA claim in the original complaint.
This fact differentiates the present case from the cases cited by the Defendants, in which
those plaintiffs sought to cure prematurely filed FTCA actions.
The statute prohibits the institution of an action for tort damages against the
United States until the administrative remedy is exhausted.
“Thus, the statute’s
jurisdictional limit is specific to actions that raise claims for tort damages.” Malouf v.
Turner, 814 F. Supp. 2d 454, 461 (D.N.J. 2011). Where an amendment to a complaint,
after the exhaustion of administrative remedy, asserts a new claim for tort under the
FTCA there is no jurisdictional restriction under the statute. Id.; see also Corley v.
6
United States, No. 14-CV-925 (NGG) (SMG), 2016 U.S. Dist. LEXIS 121034 (S.D.N.Y
Sept. 6, 2016); Grancio v. DeVecchio, 572 F. Supp. 2d 299 (E.D.N.Y 2008). The
rationale behind these cases is straightforward. A complaint is not premature if it does
not contain an allegation of negligence under the FTCA and sets forth some other
jurisdictional basis. The new FTCA claim is only “instituted” when the plaintiff seeks to
add it to the complaint by way of amendment. Allowing the amendment does no injury
to the policy deterring premature filings because the amendment is not a cure, rather it
represents a new claim asserted after the administrative remedy is exhausted. To hold
otherwise would mean that plaintiffs must delay filing otherwise ripe causes of action
until they can present all their claims in one complaint or needlessly file a separate
complaint which would ultimately be consolidated, thereby wasting judicial resources.
IT IS ORDERED Plaintiffs’ motion to file a first amended complaint, DN 13, is
GRANTED.
ENTERED this
Copies to:
January 10, 2017
Counsel of Record
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?