Broussard v. USA
MEMORANDUM RULING re 3 MOTION to Dismiss For Failure to State a Claim Plaintiff's Complaint MOTION for Summary Judgment filed by USA. Signed by Judge James D Cain, Jr on 6/7/2021. (crt,Benoit, T)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
CASE NO. 2:21-CV-00355
JUDGE JAMES D. CAIN, JR.
UNITED STATES OF AMERICA
MAGISTRATE JUDGE KAY
Before the court is a Motion to Dismiss and Motion for Summary Judgment [doc.
3], filed by the government and seeking dismissal of plaintiff’s FTCA suit on the basis of
prescription. Plaintiff opposes the motions. Doc. 5. The matter came before the court for
hearing on June 3, 2021, and the undersigned now issues this ruling.
This suit arises from a motor vehicle collision that occurred on November 14, 2019,
between plaintiff and a United States Postal Service driver in Sulphur, Louisiana. Plaintiff
presented an administrative claim to USPS via Standard Form 95 on December 2, 2019.
Doc. 3, att. 2, pp. 5–6. There he claimed $15,169.58 in property damage to the vehicle he
was driving as a result of the accident. Id. Under the space provided for personal injury
claims, he stated “None so far.” Id. On March 26, 2020, USPS responded with a letter
denying the claim because it had been turned over to plaintiff’s insurance. Id. at 7–8. In the
letter USPS also provided that plaintiff could file suit within six months if dissatisfied with
the result or file a written request for reconsideration with USPS within the same time
On November 10, 2020, plaintiff’s counsel submitted another SF-95 form to USPS
arising from the above accident. This claim was submitted on behalf of plaintiff’s spouse,
Belinda Broussard, as owner of the involved vehicle and sought $15,169.58 in property
damage. Doc. 5, att. 1, pp. 1–4. On December 1, 2020, plaintiff’s counsel also submitted
an SF-95 form on behalf of plaintiff seeking $2,000 in personal injury damages resulting
from lower back injuries plaintiff allegedly sustained in the accident. Doc. 3, att. 2, pp. 8–
12. USPS responded via letter dated February 2, 2021, stating that it was without legal
authority to take action on the new claims because the time had passed to seek
reconsideration of the March 2020 denial and the Broussards “are not entitled to submit
more than one claim resulting from the November 14, 2019 motor vehicle collision.” Id. at
On February 9, 2021, Plaintiff filed suit in this court under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 2671 et seq., raising his personal injury claim. Doc. 1. The
government now moves to dismiss the suit, arguing that plaintiff’s claim is untimely under
28 U.S.C. § 2401(b) because he did not file suit within six months of the March 2020
denial. Doc. 3, att. 1. Plaintiff opposes the motion, maintaining that the suit is timely with
the limitations period running from the February 2021 denial. Doc. 5.
LAW & APPLICATION
A. Legal Standards
Rule 12(b)(6) allows for dismissal of a claim when a plaintiff “fail[s] to state a claim
upon which relief can be granted.” When reviewing such a motion, the court focuses on
the complaint and its attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012).
The court can also consider matters of which it may take judicial notice as well as
documents referred to in the complaint and central to the plaintiff’s claims. Hall v.
Hodgkins, 305 Fed. App’x 224, 227 (5th Cir. 2008) (unpublished); In re Katrina Canal
Breaches Litig., 495 F.3d at 205. Pursuant to Federal Rule of Civil Procedure 12(d), a
motion to dismiss filed under Rule 12(b)(6) may be converted into a motion for summary
judgment under Rule 56 where it relies on matters outside of Rule 12(b)(6)’s scope, as long
as the court gives the parties a “reasonable opportunity to present all the material that is
pertinent to the motion.” Trinity Marine Prods., Inc. v. United States, 812 F.3d 481, 487
(5th Cir. 2016) (quoting Fed. R. Civ. P. 12(d)).
Here the government has moved in the alternative for summary judgment. Plaintiff
does not object to the motion being considered under Rule 56, to the extent that any of the
exhibits fall outside Rule 56’s scope. The March 2020 SF-95 and denial were not attached
to or referenced in plaintiff’s complaint, and neither party points to authority within this
circuit establishing these documents as matters of which the court may take judicial notice.
Therefore, out of an abundance of caution, the court will consider the matter as a motion
for summary judgment.
Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The moving party is initially responsible for identifying
portions of pleadings and discovery that show the lack of a genuine issue of material fact.
Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). He may meet his burden by
pointing out “the absence of evidence supporting the nonmoving party’s case.” Malacara
v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). The non-moving party is then required to go
beyond the pleadings and show that there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To this end he must submit
“significant probative evidence” in support of his claim. State Farm Life Ins. Co. v.
Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249 (citations omitted).
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The court is also required to view all evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material
fact exists if a reasonable trier of fact could render a verdict for the nonmoving party.
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
“The FTCA authorizes civil actions for damages against the United States . . . under
circumstances in which a private person would be liable under the law of the state in which
the negligent act or omission occurred.” Quijano v. United States, 325 F.3d 564, 567 (5th
Cir. 2003). Under 28 U.S.C. § 2401(b), such claims must be presented to the appropriate
federal agency within two years of the claim’s accrual and then brought to federal court
within six months of the agency’s action on the claim. See, e.g., Trinity Marine Prods., Inc.
v. United States, 812 F.3d 481, 487 (5th Cir. 2016). The tort claim is “forever barred”
unless the claimant meets both deadlines, but the limitations periods are non-jurisdictional
and therefore subject to equitable tolling. United States v. Kwai Fun Wong, 575 U.S. 402,
410–12 (2015) (quoting 28 U.S.C. § 2401(b)).
The Fifth Circuit, however, applies the doctrine of equitable tolling sparingly. Ellis
v. U.S. Dep’t of Veterans Affairs, 721 F. App’x 395, 397 (5th Cir. 2018). The burden lies
with the plaintiff to show that equitable tolling is justified. Granger v. Aaron’s, Inc., 636
F.3d 708, 712 (5th Cir. 2011). Possible bases for equitable tolling include (1) the pendency
of a suit between the parties in the wrong forum; (2) plaintiff’s unawareness of the facts
giving rise to the claim because of the defendant’s intentional concealment of them; and
(3) where the agency has misled the plaintiff about the nature of his rights. Id. (citing
Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995)). The Fifth
Circuit has also left the door open for other bases to be recognized. Id.
The government states that this action is untimely because plaintiff was only entitled
to submit one SF-95 relating to the subject accident, and because he failed to take any
action during the six months following the denial of his first claim. Plaintiff asserts that he
did not raise his personal injury claim in his first SF-95, because he had not sought any
treatment at that time and did not know that the soreness he was experiencing was enough
to justify a claim for damages. Accordingly, he maintains, the March 2020 denial did not
start a limitations period for filing suit on his personal injury claim.
In support of its argument that a claimant may only submit one SF-95, the
government relies on the text of the FTCA and USPS regulations governing the
administrative claims process. The FTCA’s presentment section provides that the claimant
may not institute suit against the agency for an amount in excess of that claimed in his SF95, “except where the increased amount is based upon newly discovered evidence not
reasonably discoverable at the time of presenting the claim to the federal agency, or upon
allegation and proof of intervening facts, relating to the amount of the claim.” 28 U.S.C. §
2675(b). As the government notes, this provision would be meaningless if the claimant
could instead submit his SF-95s piecemeal. Additionally, USPS’s implementing
regulations provide procedures for amending a claim and seeking reconsideration of a
denial. 39 C.F.R. §§ 912.5(b), 912.9(b)–(d). Either provision would have allowed the
plaintiff to elaborate on his personal injuries, even if they remained unknown at the initial
filing. Finally, the instructions on the SF-95 itself provide that “[i]f the claimant intends to
file for both personal injury and property damage,” he must show the amount claimed for
both categories on the appropriate line of the form. Doc. 3, att. 2, p. 6. In contrast, plaintiff
points to no statute, regulation, or other authority supporting his position. Instead, he relies
on the fact that the denial letter only addressed his property damage claim and that nothing
in the form or any of the above-referenced provisions expressly prohibited him from filing
a separate SF-95 relating to his personal injury claim.
The FTCA’s presentment requirement, which necessitates the filing and review of
the SF-95, provides the government with early notice of its potential liability in order to
encourage early settlement of claims, decrease litigation expenses for the government, and
reduce unnecessary congestion in the courts. Adams v. United States, 615 F.2d 284, 288–
90 (5th Cir.), decision clarified on denial of reh’g, 622 F.2d 197 (5th Cir. 1980). It is wellestablished that “one bite at the apple is all that the FTCA’s claim-filing scheme allows”
and that a plaintiff cannot restart the six-month clock simply by filing a duplicative SF-95
after the window has shut on a functionally equivalent claim. Roman-Cancel v. United
States, 613 F.3d 37, 42 (2d Cir. 2010). A claim is duplicative when it arises from the same
incident allegedly giving rise to the government’s liability. Freeman v. United States, 166
F.Supp.3d 215, 222 (D. Conn. 2016); cf. Spinazzola v. United States, 2019 WL 6050723
(N.D. Okla. Nov. 15, 2019) (SF-95s for medical negligence and for negligent hiring and
supervision were not duplicative because the first did not give the government notice of its
potential liability under the second incident).
The court is insufficiently persuaded that there is a hard and fast rule against separate
injury and property claims arising from the same accident. In this scenario, however,
plaintiff was clearly aware of the possibility of an injury claim when he stated “None so
far” on his first SF-95. The instructions on that form and the amendment process of the SF95 indicate that the proper procedure would be to amend that filing if circumstances
changed, and that any SF-95 filed based on such a changed circumstance would be
duplicative. Therefore the plaintiff could not restart the limitations period by filing his
second SF-95 based on the same accident. Furthermore, the court finds no basis for
equitably tolling the limitations period. Plaintiff was not misled by the agency on any front,
as the form language on the SF-95 in combination with the March 2020 denial letter make
his obligations clear, and plaintiff presents no other basis for tolling. Accordingly, the
personal injury claim is time-barred as a result of plaintiff’s failure to take appropriate
action within six months of the March 2020 denial.
For the reasons stated above, the Motion for Summary Judgment [doc. 3] will be
granted and the Motion to Dismiss [doc. 3] will be denied as moot, resulting in the dismissal
with prejudice of plaintiff’s suit.
THUS DONE AND SIGNED in Chambers on this 7th day of June, 2021.
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE
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