SANTIAGO et al v. UNITED STATES OF AMERICA et al
Filing
25
OPINION. Signed by Judge Joseph E. Irenas on 09/13/2011. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSE SANTIAGO and JEAN
SANTIAGO,
HONORABLE JOSEPH E. IRENAS
Plaintiffs,
CIVIL ACTION NO. 10-5750
(JEI/JS)
v.
OPINION
UNITED STATES OF AMERICA, et
al.,
Defendants.
APPEARANCES:
SZAFERMAN, LAKIND, BLUMSTEIN & BLADER, P.C.
By: Tracey C. Hinson, Esq.
101 Grovers Mill Road, Suite 200
Lawrenceville, NJ 08648
Counsel for Plaintiffs
PAUL J. FISHMAN, UNITED STATES ATTORNEY
By: Mark Orlowski, Assistant U.S. Attorney
402 East State Street
Trenton, NJ 08608
Counsel for Defendants United States of America and United
States Army Reserve
PARKER YOUNG & ANTINOFF, LLC
By: Steven Antinoff, Esq.
733 Route 70 East, Suite 205
Marlton, NJ 08053
Counsel for Defendant Richard W. Zamparelli
IRENAS, Senior District Judge:
Plaintiffs Jose Santiago and Jean Santiago (collectively
“Plaintiffs”) initiated this action pursuant to the Federal Tort
Claims Act (“FTCA”) to recover for personal injuries suffered as
1
a result of a motor vehicle accident.1
Pending before the Court
is a Partial Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6) by Defendants United States of America
(“United States”) and United States Army Reserve (“Army
Reserve”).
I.
On April 10, 2008, Plaintiff Jose Santiago was injured in a
motor vehicle accident on Route 206 in Bordentown, NJ.
The
accident involved a motor vehicle operated by Plaintiff Jose
Santiago, a vehicle operated by Defendant Richard Zamparelli, and
a vehicle operated by Robert McDonald but owned by Defendant Army
Reserve.2
On January 4, 2010, Plaintiff Jose Santiago filed an
administrative claim with the Army Reserve.
On November 4, 2010,
Planitiffs filed a Complaint in this Court.
An Amended Complaint
was filed on January 28, 2011.
The Amended Complaint alleges
that Defendants United States and Army Reserve were negligent in
that McDonald, an employee of the Army Reserve, operated his
motor vehicle in a negligent, careless and/or reckless manner.
1
The Court exercises subject matter jurisdiction pursuant
to 28 U.S.C. § 1346(b) and 28 U.S.C. § 1367. Although Plaintiffs
allege jurisdiction pursuant to 28 U.S.C. § 1332, there is not
complete diversity between the parties.
2
On August 2, 2011, this Court entered an Order
substituting Defendant United States for McDonald and terminating
McDonald as a Defendant in the action because McDonald was deemed
to be acting within the scope of federal employment at the
relevant time.
2
The Amended Complaint also includes allegations against Defendant
Zamparelli of negligent, careless and/or reckless operation and
maintenance of a motor vehicle allegedly causing Plaintiff Jose
Santiago’s injuries.
Plaintiff Jean Santiago’s claim arises from
an alleged loss of services, companionship and consortium from
the injuries allegedly sustained by Plaintiff Jose Santiago.
Defendants United States and Army Reserve filed the instant
Partial Motion to Dismiss on August 3, 2011.
II.
A.
Federal Rule of Civil Procedure 12(b)(1) provides that a
court may dismiss a complaint for lack of subject matter
jurisdiction.
Rule 12(b)(1) motions may be based upon the
complaint’s face or its underlying facts.
Mortensen v. First
Federal Savings & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
“A facial attack questions the sufficiency of the pleading,
and in reviewing a facial attack, a trial court accepts the
allegations in the complaint as true.”
Pittman v. Metuchen
Police Dept., No. 08-2373, 2009 WL 3207854, *1 (D.N.J. Sept. 29,
2009).
A factual attack permits the court to consider conflicting
evidence that may bear on its jurisdiction.
Id.
“No presumptive
truthfulness attaches to plaintiff’s allegations, and the
existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional
3
claims.”
Carpet Group Int’l v. Oriental Rug Importers Ass’n
Inc., 227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen v. First
Fed. Savings & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
B.
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”
In order to survive a motion to
dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
8(a)(2).
While a court must accept as true all allegations in the
plaintiff’s complaint, and view them in the light most favorable
to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008), a court is not required to accept sweeping
legal conclusions cast in the form of factual allegations,
unwarranted inferences, or unsupported conclusions.
Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
The
complaint must state sufficient facts to show that the legal
allegations are not simply possible, but plausible.
515 F.3d at 234.
Phillips,
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009).
4
When evaluating a Rule 12(b)(6) motion to dismiss, the Court
considers “only the allegations in the complaint, exhibits
attached to the complaint, matters of public record, and
documents that form the basis of a claim.”
Lum v. Bank of
America, 361 F.3d 217, 221 n.3 (3d Cir. 2004).
A document that
forms the basis of a claim is one that is “integral to or
explicitly relied upon in the complaint.”
Id. (quoting In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997)).
III.
A.
Moving Defendants argue that Plaintiffs’ claims against the
Army Reserve must be dismissed because the United States is the
only proper party in an action pursuant to the FTCA.3
6.)
(Br. at
Plaintiffs do not oppose the dismissal of the Army Reserve
from this action.
(Pls’ Opp. at 4.)
Because the United States is the only proper defendant in an
action brought pursuant to the FTCA, CNA v. U.S., 535 F.3d 132,
138 n.2 (3d Cir. 2008), and a federal agency may not be sued in
its own name, F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994), the
Army Reserve, as an agency of the United States, is not a proper
party to this action.
Accordingly, moving Defendants’ Motion to
3
The FTCA provides a remedy for personal injuries suffered
as a result of a negligent act or omission committed by “any
employee of the Government while acting within the scope of his
office or employment . . . .” 28 U.S.C. § 1346(b).
5
Dismiss the Army Reserve from this action will be granted.
B.
Moving Defendants argue that Plaintiff Jean Santiago’s loss of
consortium claim asserted in Count Seven must be dismissed for lack
of subject matter jurisdiction because she failed to meet the
jurisdictional prerequisites to filing suit under the FTCA.
(Br.
at 8.)
Pursuant to the FTCA, the United States has given its consent
to be sued in tort under limited circumstances.
The FTCA’s waiver
of sovereign immunity is contingent on a plaintiff’s compliance
with the terms of the act.
Prior to initiating an action for money
damages, a plaintiff must present his claim in writing within two
years of its accrual to the appropriate federal agency, and the
claim must be denied.
28 U.S.C. §§ 2675(a), 2401(b); 28 C.F.R. §
14.2(a)(“a claim shall be deemed to have been presented when a
Federal agency receives from a claimant . . . an executed Standard
Form 95 or other written notification of an incident, accompanied
by a claim for money damages in a sum certain for . . . personal
injury. . . alleged to have occurred by reason of the incident”).
The requirement that an FTCA claim first be presented to a federal
agency is jurisdictional and cannot be waived.
Bialowas v. U.S.,
443 F.2d 1047, 1049 (3d Cir. 1971).
In order to exhaust administrative remedies and satisfy the
jurisdictional requirement of 28 U.S.C. § 2675 with respect to a
loss of consortium claim, a plaintiff must submit an independent
6
claim or join in her spouse’s claim.4
See, e.g., Nazzaro v. U.S.,
304 F.Supp. 2d 605, 622 (D.N.J. 2004)(dismissing wife’s claim for
loss of consortium because she did not file an administrative
claim); Dugan v. Coastal Industries, Inc., 96 F.Supp. 2d 481, 485
(E.D. Pa. 2000)(same); Kieffer v. Vilk, 8 F.Supp.2d 387, 396 n.10
(D.N.J. 1998)(dismissing husband’s loss of services claim where
husband failed to file administrative claim).
The Amended Complaint does not allege that Plaintiff Jean
Santiago filed an administrative claim, and the files maintained by
the United States Army Claims Service have no record of an
administrative claim filed on behalf of Jean Santiago.
Ferguson Dec.)
(See
Because Plaintiff Jean Santiago has not complied
with the exhaustion requirement set forth in 28 U.S.C. § 2675, her
claim must be dismissed for lack of subject matter jurisdiction.5
Accordingly, moving Defendants’ Motion will be granted with respect
4
Under New Jersey law, although a loss of consortium claim
is derivative of the injured spouse’s personal injury cause of
action, “it is also independent, as the damages which may be
awarded to the spouse pursuant to the per quod claim are clearly
different from the damages which may be awarded to the spouse
suffering the direct injury.” Kibble v. Weeks Dredging &
Construction Co., 161 N.J. 178, 190 (1999)(internal quotations
and citations omitted).
5
In reliance on Milacci v. Mato Realty Co., Inc., 217 N.J.
Super. 297 (1987), Plaintiffs argue that Jean Santiago was not
required to file a separate notice of claim for her loss of
consortium claim. This argument is unavailing as Milacci relates
to the New Jersey Tort Claims Act, N.J.S.A 59:8-3, et seq., not
the FTCA.
7
to Jean Santiago’s loss of consortium claim.6
C.
Moving Defendants argue that the Sixth Count of the Amended
Complaint should be dismissed because it merely contains factual
allegations supporting Plaintiff Jose Santiago’s negligence claim
and does not state a claim on an alternative basis.
(Br. at 14.)
Plaintiffs do not oppose the dismissal of Count Six to the extent
that it purports to assert a separate cause of action.
(Pls’ Opp.
at 4.)
Because Count Six contains only factual allegations that the
administrative claim attached to the Amended Complaint was filed
with the Army Reserve, and it does not state an independent claim
upon which relief may be granted, moving Defendants’ Motion to
Dismiss Count Six will be granted.
IV.
For the reasons stated above, Defendants United States and
Army Reserve’s Partial Motion to Dismiss will be granted.
The
remaining claims in this action are as follows: Plaintiff Jose
Santiago’s negligence claims against Defendants United States,
6
Although the instant Motion to Dismiss did not seek
dismissal of Defendant Zamparelli’s cross-claim for contribution,
Defendant Zamparelli filed opposition to the Motion in which he
argued that the FTCA’s notice requirements do not apply to his
cross-claim for contribution. Because the pending Motion seeks
only to dismiss Plaintiff Jean Santiago’s claim for loss of
consortium, Defendant Zamparelli’s cross-claim for contribution
will not be dismissed. The Court also notes that, contrary to
Defendant Zamparelli’s assertion, Plaintiff Jean Santiago has not
asserted her loss of consortium claim against him.
8
Zamparelli, John/Jane Doe, ABC Corporation, and XYZ Partnership;
Plaintiff Jean Santiago’s loss of consortium claim against
Defendants John/Jane Doe, ABC Corporation, and XYZ Partnership; and
Defendant Zamparelli’s cross-claim for contribution against coDefendants.
An appropriate Order accompanies this Opinion.
Dated: September 13, 2011
s/Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.
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