RODRIGUEZ v. UNITED STATES OF AMERICA
MEMORANDUM OPINION. Signed by Judge Esther Salas on 3/28/2016. (seb)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civil No. 15-4117 (ES) (JAD)
Pending before the Court is Defendant United States of America’s motion to dismiss
Plaintiff Nephtali Rodriguez’s complaint under Federal Rule of Civil Procedure 12(b)(1). (D.E.
No. 2). Plaintiff did not file opposition to Defendant’s motion. The Court decides Defendant’s
motion without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the following
reasons, the Court will GRANT Defendant’s motion and dismiss Plaintiff’s complaint without
On May 22, 2015, Plaintiff commenced this action by filing a pro se complaint in the
Hudson County Superior Court’s Small Claims Section against the United States Postal Service
(“USPS”) alleging that Plaintiff’s “car was hit by a postal truck causing damages to [his] bumper,”
and demanding $1006.00 plus costs. (See D.E. No. 1, Exhibit 1 to Government’s Notice of
Removal (“Compl.”) at 9). Defendant removed the matter to this Court and requested that the
United States be substituted as the named defendant pursuant to 28 U.S.C. § 2679(d)(2). 1 (D.E.
No. 1, Government’s Notice of Removal (“Rem. Notice”) ¶¶ 4-9).
Section 2679(d)(2) states:
On June 18, 2015, the Government filed a motion to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (See generally D.E. No. 2). On
June 19, 2015, the Government filed an amended memorandum of law in support of its motion to
dismiss, asserting that Plaintiff’s complaint “failed to allege subject matter jurisdiction,” and that
Plaintiff “has failed to exhaust . . . administrative remedies” under the Federal Tort Claims Act
(“FTCA”). (See D.E. No. 3, Amended Memorandum of Law in Support of Motion to Dismiss at
4-5). As noted, Plaintiff did not file opposition to Defendant’s motion.
“Pursuant to the FTCA, the United States has consented to being sued in tort under certain
limited circumstances.” Kieffer v. Vilk, 8 F. Supp. 2d 387, 392 (D.N.J. 1998). The FTCA provides
the exclusive means by which an individual may seek redress for tort claims against government
employees. See United States v. Smith, 499 U.S. 160, 161-62 (1991) (citing 28 U.S.C. §
2679(b)(1)). Under the doctrine of sovereign immunity, neither federal employees nor federal
agencies are subject to liability for personal injuries arising out of their negligence, see Kieffer, 8
F. Supp. 2d at 393-94; “the United States is the only proper defendant in a suit for personal injuries
arising out of the negligence of federal employees,” Dilg v. U.S. Postal Serv., 635 F. Supp. 406,
407 (D.N.J. 1985).
“In order to promote the efficient disposition of claims against the government, the FTCA
establishes an administrative system. The claimant is required to file a claim with the agency
allegedly responsible for her injuries.” Reo v. U.S. Postal Serv., 98 F.3d 73, 75 (3d Cir. 1996). If
Upon certification by the Attorney General that the defendant employee was acting within the scope
of his office or employment at the time of the incident out of which the claim arose, any civil action
or proceeding commenced upon such claim in a State court shall be removed without bond at any
time before trial by the Attorney General to the district court of the United States for the district and
division embracing the place in which the action or proceeding is pending. Such action or
proceeding shall be deemed to be an action or proceeding brought against the United States under
the provisions of this title and all references thereto, and the United States shall be substituted as the
party defendant. This certification of the Attorney General shall conclusively establish scope of
office or employment for purposes of removal.
the claim is denied, or if the agency fails to make a final decision within six months, “the claimant
may then file suit in federal court.” Id. Specifically, 28 U.S.C. § 2675(a) provides that “[a]n action
shall not be instituted upon a claim against the United States for money damages for injury or loss
of property . . . 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.” Failure to exhaust
administrative remedies is a bar to district court jurisdiction over such claims. See Martinez v.
U.S. Post Office, 875 F. Supp. 1067, 1074 (D.N.J. 1995) (“Fulfillment of the administrative
exhaustion requirement is essential to a court’s subject matter jurisdiction over a claim under the
“The determination as to whether the exhaustion requirement has been fulfilled is made
with reference to the applicable agency administrative regulations.” Id. at 1075. The USPS’s
regulations state that “a claim shall be deemed to have been presented when the . . . Postal Service
receives from a claimant, his [or her] duly authorized agent or legal representative, an executed
Standard Form 95, Claim for Damage or Injury, 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.” 39 C.F.R. § 912.5.
As to final denial of the claim, the regulations state that “[f]inal denial of an administrative claim
shall be in writing and sent to the claimant, his [or her] attorney, or legal representative by certified
or registered mail. The notification of final denial . . . shall include a statement that, if the claimant
is dissatisfied with the agency action, he [or she] may file suit in [a] . . . District Court . . . .” 39
C.F.R. § 912.9.
Here, Plaintiff has failed to exhaust his administrative remedies. It appears that Plaintiff
filed a complaint with the Hudson County Superior Court Small Claims Section in the first
instance. (Compl. at 9). Nothing suggests that “an executed Standard Form 95 [or] Claim for
Damage or Injury,” 39 C.F.R. § 912.5, has been filed with USPS in this matter. Although a
summons was issued for USPS, (Compl. at 6), and it may be inferred from the Government’s
removal of the action that USPS is on notice of Plaintiff’s claim, it is unlikely that the summons
and complaint filed in the Superior Court of New Jersey qualify as “other written notification of
an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of
property” under 39 C.F.R. § 912.5. Furthermore, Plaintiff has not established that he has received
a “final denial” of his claim within the meaning of 39 C.F.R. § 912.9, or that six months have
passed since first providing notice of his claim to USPS, see Reo, 98 F.3d at 75.
Because Plaintiff has failed to exhaust his administrative remedies, this Court lacks subject
matter jurisdiction over his claims and Plaintiff’s complaint must be dismissed, see Martinez, 875
F. Supp. at 1076-77. The Court notes that “[a] tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate [f]ederal agency within two years after
such claim accrues or unless action is begun within six months after the date of mailing, by certified
or registered mail, of notice of final denial of the claim by the agency to which it was presented.”
28 U.S.C. § 2401(b) (emphasis added). Neither the summons nor complaint contain information
as to the date of the alleged incident; only the date of the summons’s issuance and complaint’s
filing is noted. (See Compl. at 6-9). However, the Court recognizes that it is possible for Plaintiff
to timely comply with the exhaustion-of-administrative-remedies requirement outlined above and
contained in 28 U.S.C. § 2675(a), and 39 C.F.R. §§ 912.5 and 912.9, so long as Plaintiff presents
his claim to USPS within two years of the date of accrual.
An appropriate Order accompanies this Memorandum Opinion.
Esther Salas, U.S.D.J.
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