Depron v. United States of America

Filing 13

ORDER AND REASONS: IT IS ORDERED that the United States' 8 motion to dismiss Ethel Depron's claim is GRANTED, as set forth in document. Signed by Judge Martin L.C. Feldman on 11/9/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ETHEL DEPRON

CIVIL ACTION

v.

NO. 17-8391

UNITED STATES OF AMERICA

SECTION "F"

ORDER AND REASONS
Before the Court is the United States’ motion to dismiss the
plaintiff’s claim for lack of jurisdiction and failure to state a
claim. For the following reasons, the motion is GRANTED.
Background
A United States Postal Service vehicle, operated by Calvin
Daiz, Jr., collided with a Jefferson Parish Transit bus at the
intersection of Loyola Avenue and Tulane Avenue in New Orleans on
August 11, 2017. Ethel Depron was a passenger on the bus. She
alleges that as a result of the accident, she suffered from
headaches, neck pain, and back pain. According to Ms. Depron, she
was treated for these injuries at New Orleans East Medical Rehab
for five months, incurring $2,705 in medical expenses.
According to the defendant, counsel for Ms. Depron, Tim
Fields, attempted to file a claim with the United States Postal
Service on November 11, 2015. One week later, the Postal Service
sent Mr. Fields a letter stating that the initial letter did not
constitute a valid claim. The letter, a copy of which was appended
1

to the government’s instant motion, outlines the steps a claimant
must take to present a valid administrative tort claim to the
Postal Service. On April 15, 2016, Mr. Fields filed a claim for
injury using the appropriate forms, alleging that the Postal
Service “sideswiped” the bus, the bus did not sustain any damage,
and Ms. Depron claimed $15,000 for her injuries. On August 11,
2016, Mr. Fields sent the Postal Service a letter enclosing copies
of Ms. Depron’s medical records (not presently made available to
the Court) and threatening to file suit under the Federal Tort
Claims Act if the Postal Service failed to accept the claim.
On October 4, 2016, the Postal Service denied Ms. Depron’s
claim. In its letter, it stated that because the collision between
its vehicle and the bus were very minor, there was no proximate
cause between the collision and Ms. Depron’s injuries. The Postal
Service explained that if Ms. Depron was unsatisfied with its
decision, she could file suit under the Federal Tort Claims Act.
It also noted that the claim must be filed in federal district
court within six months, and that the United States of America is
the only proper defendant.
In response, Ethel Depron sued the United States Postal
Service and Calvin Daiz on February 8, 2017 in this Court, alleging
that her “body and mind” were injured in the collision that she
said was caused by Mr. Daiz. Ms. Depron sought to recover damages
caused by the negligence of Daiz and the U.S. Postal Service. She
2

alleged that the Court has jurisdiction pursuant to the Postal
Reorganization Act. Contending that the Court lacks jurisdiction,
the

U.S.

Postal

Service

and

Mr.

Daiz

sought

to

dismiss

the

plaintiff’s claims against them because the plaintiff failed to
name the United States or mention the Federal Tort Claims Act,
which is her exclusive basis for recovery. Ms. Depron did not file
an opposition to the defendants’ motion to dismiss. In its July
10, 2017 Order and Reasons, the Court dismissed Ms. Depron’s claim
for lack of jurisdiction. The Court held that the FTCA is the
exclusive remedy for damages arising from tortious acts of federal
agencies or their employees, and the United States is only proper
defendant in an FTCA lawsuit, which the plaintiff did not name.
On

August

28,

2017,

Ms.

Depron

sued

the

United

States,

recycling her February complaint, but properly naming the United
States as defendant. Accordingly, she contends that Daiz acted
negligently while in the scope of his employment, causing the
accident and severe injury. In response, the United States moved
the

Court

to

dismiss

Ms.

Depron’s

complaint

jurisdiction and failure to state claim.

I.

Legal Standards
3

for

lack

of

A.
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the Court’s subject
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The burden of proof
for a Rule 12()B(1) motion to dismiss is on the party asserting
jurisdiction.

Ramming v. United States, 281 F.3d 158, 161 (5th

Cir. 2001). The Court may find a plausible set of facts to support
subject matter jurisdiction by considering any of the following:
“(1)

the

complaint

alone;

(2)

the

complaint

supplemented

by

undisputed facts evidence in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996).
B.
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)). To survive dismissal, “a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Gonzalez v. Kay,
577 F.3d 600, 603 (5th Cir. 2009)(quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009))(internal quotation marks omitted). “Factual
4

allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnote
omitted). Further, “[a] Rule 12(b)(6) motion to dismiss for failure
to state a claim is an appropriate method for raising a statute of
limitations defense.” Mann v. Adams Realty Co., Inc., 556 F.2d
288, 293 (5th Cir. 1977).

II.

Discussion

The United States contends that the plaintiff’s complaint
should

be

dismissed

jurisdiction,

or

under

F.R.C.P.

alternatively,

under

12(b)(1)
F.R.C.P.

for

lack

12(b)(6)

of
for

failing to state a claim upon which relief can be granted. If a
claim cannot survive a F.R.C.P. 12(b)(1) jurisdictional attack,
the Court does not have jurisdiction to decide a party’s F.R.C.P.
12(b)(6)

motion

to

dismiss.

Stanley

v.

Central

Intelligence

Agency, 629 F.3d 1146, 1158 (5th Cir. 1981). Accordingly, the Court
must first address whether it has jurisdiction to adjudicate Ms.
Depron’s claims.
The plaintiff again has incorrectly alleged that the Court
has jurisdiction pursuant to the Postal Reorganization Act, 39
U.S.C. § 409(a), despite the Court’s explicit observation in its
July 10, 2017 Order and Reasons that the Postal Reorganization Act
5

does not apply to tort claims. 1 The Court does have jurisdiction
over tort claims against the United States of America. See 28
U.S.C. § 2679; Hernandez v. United States, 757 F.3d 249, 257 (5th
Cir.

2014)

(“The

FTCA

accordingly

gives

federal

courts

jurisdiction over claims against the United States for “personal
injury or death cause by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of
his office or employment . . . .”)
Next,

the

United

States

contends

that

the

plaintiff’s

complaint fails to state a claim upon which relief can be granted.
The FTCA requires that the claimant files suit no later than six
months after the agency denies her claim. 28 U.S.C. § 2401(b). The
United States contends that because the Postal Service denied her
claim on October 4, 2016, and the plaintiff did not file this
action until October 28, 2017, her claim is barred. It further
asserts that although the FTCA is subject to equitable tolling, it
should not be applied here. The plaintiff does not deny that her
complaint was filed after the six month deadline. Instead she
contends that because she did file a timely complaint in February
2017, albeit one the Court dismissed for failing to name the

1

In its July 10, 2017 Order and Reasons, the Court noted that “[t]he statute
under which she files suit, the Postal Reorganization Act, explicitly conditions
the waiver of sovereign immunity by Section 409(c), which provides that the
remedies and restrictions of the FTCA shall apply in all actions sounding in
tort. . . . [T]he FTCA is the exclusive remedy for damages arising from tortious
acts of federal agencies or their employees.”

6

correct

party,

equitable

tolling

should

apply

because

she

diligently pursued her claim.
Because it is undisputed that the plaintiff failed to timely
file this complaint, the only issue is whether equitable tolling
applies.

“The

doctrine

of

equitable

tolling

preserves

a

plaintiff’s claims when strict application of the statute of
limitations would be inequitable.” Davis v. Johnson, 158 F.3d 806,
810 (5th Cir. 1998) (internal citations omitted). “Statutes of
limitations serve a vital role in blocking state claims, [but some]
statutes allow for equitable tolling in limited circumstances to
prevent

a

plaintiff

from

unjustly

losing

a

claim

vigorously

pursued.” Perez v. United States, 167 F.3d 913, 919 (5th Cir.
1999). It is to be applied “sparingly,” but is appropriate in
extraordinary situations “where the complainant has been induced
or tricked by his adversary’s misconduct . . . .” Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 96 (1990). For example, courts
have allowed equitable tolling when the defendant intentionally
concealed facts giving rise to the claim or misled the plaintiff
about the nature of her rights. Granger v. Aaron’s, Inc., 636 F.3d
708, 712 (5th Cir. 2011). Although courts are hesitant to apply
the doctrine “to situations of error or neglect, because parties
are bound by the acts of their lawyer,” it is still available even
if the plaintiff filed a defective pleading, as long as she
“actively

pursued

judicial

remedies”
7

and

“exercised

due

diligence.” Id. (quoting Perez, 167 F.3d at 918). Courts have
applied equitable tolling in circumstances where the plaintiff’s
“errors [c]ould have been uncovered through more careful legal
research” if the plaintiff shows she “did not sleep on h[er]
rights.” Perez, 167 F.3d at 917-18 (quoting Burnett v. New York
Central R.R. Co., 380 U.S. 424, 429 (1965)).
Ms. Depron was not “induced or tricked” by the Postal Service.
On the contrary, it provided her with the information necessary to
avoid these errors. In the Postal Service’s letter denying her
claim, the agency explained that if she was not satisfied, she
would need to file a complaint, pursuant to the FTCA, in a federal
district court within six months. The letter specified that the
only proper defendant was the United States of America. Despite
that

notification,

Ms.

Depron

filed

her

February

complaint

improperly naming the Postal Service and Calvin Daiz as defendants.
She also cited the Postal Reorganization Act as the basis for
jurisdiction, even though the very section she cites states that
the provisions of the FTCA exclusively applies to tort claims.
After defendants raised these errors in their motion to dismiss,
Ms. Depron did not request to amend her complaint, or even oppose
the motion. In its July 10, 2017 Order and Reasons, the Court
explicitly held that the Postal Reorganization Act does not apply,
as the FTCA provides the exclusive remedy for damages. Ignoring
the

Court’s

ruling,

the

plaintiff
8

again

cited

the

Postal

Reorganization Act as the basis for the Court’s jurisdiction over
her claims. The plaintiff has not moved to amend her most recent
complaint to address this error, nor does she address it in her
opposition. Even though filing a complaint that is in compliance
with the FTCA would not require knowledge of unique procedural
issues

or

complicated

legal

rules

under

these

circumstances,

committing any one of these errors in isolation is excusable. But
in considering the plaintiff’s conduct since she filed her initial
complaint in February, it is clear that the plaintiff failed to
exercise due diligence in pursuing judicial remedies. Equitable
tolling is therefore not applicable. Because the plaintiff did not
file her FTCA claim pursuant to 28 U.S.C. § 2401(b) the within six
months, her claim is dismissed under F.R.C.P. 12(b)(6).
Accordingly, IT IS ORDERED: that the United States’ motion to
dismiss Ethel Depron’s claim is GRANTED.

New Orleans, Louisiana, November 9, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

9