LEVINE et al v. MU et al

Filing 23

OPINION AND ORDER denying Plaintiff's request for permission to file a motion to reinstate the Complaint. Signed by Judge William H. Walls on 1/17/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NATALIE LEVINE, DAVID LEVINE,
Husband & Wife,
Plaintiffs,

OPINION AND ORDER

V.

UNITED STATES OF AMERICA,

:

Civ. No. 15-6830 (WHW)(CLW)

Defendant.

Walls. Senior District Judge
The Court is in receipt of Plaintiff Natalie Levine’s request for permission to file a
motion to reinstate her complaint against the United State of America for negligence and loss of
consortium arising out of a collision between a vehicle driven by Natalie Levine and a United
States Postal Service vehicle. ECF No. 21. On June 8, 2016, the Court dismissed Plaintiffs,
Natalie and David Levine’s, claims with prejudice for lack ofjurisdiction because Plaintiffs
failed to comply with the administrative presentment requirement of the Federal Tort Claims Act
(“FTCA”), 28 U.S.C.

§ 2675(a). ECF No. 17. Plaintiffs then moved for reconsideration of the

dismissal with prejudice, ECF No. 18, which the Court granted on July 6, 2016. ECF No. 20.
In the Court’s Opinion and Order granting Plaintiffs’ motion for reconsideration, the
Court recognized that Plaintiffs could refile a complaint in this Court if Plaintiffs properly
presented their administrative claims to the USPS within 60 days from the dismissal of their
action and Plaintiffs’ claims were denied. Id. at 6. Plaintiff Natalie Levine now states that she
timely filed an administrative claim against the USP$ and that her claim was denied because six
months elapsed without her receiving a response from the agency. ECF No. 21 at 1.
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NOT FOR PUBLICATION
“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
.“

2$ U.S.C.

§ 2675(a); see also Walkerv. United States, 616 F. App’x 497, 499 (3d Cir. 2015)

(An agency “finally denie[s]” an administrative claim “either when the agency denies a claim in
writing or when it fails to issue a decision within six months.”). While the Government does not
dispute that Ms. Levine has now properly exhausted her administrative remedies, it argues that
reinstatement of her complaint is not the correct remedy because it “would not cure the jurisdictional
defect.” ECF No 22 at 2. Instead, the Government argues that Ms. Levine must “file a separate action
that names the United States as a defendant in order to present her claims to the Court.” Id. at 3.
The Supreme Court has interpreted the FTCA to “require complete exhaustion of Executive
remedies before the invocation of the judicial process.” McNeil v. United States, 508 U.S. 106, 112
(1993). Citing McNeil, the Third Circuit affirmed a district court’s dismissal of an amended
complaint that attempted to assert a properly exhausted FTCA claim because plaintiff had initially
filed suit before exhausting his administrative remedies. Hoffenberg v. Provost, 154 F. App’x 307,
310 (3d Cir. 2005). The Hoffenberg Court rejected Plaintiffs argument that amending his complaint
in the original case was akin to refiling his suit, noting that amending the complaint did not cure the
jurisdictional defect because the date of the amended complaint could not “serve as the date the
federal suit was instituted.” Id. (citing McNeil, 508 U.S. at 111—12). It follows that courts have
required plaintiffs to file new lawsuits to cure the jurisdictional defect created when FTCA suits are
filed before the exhaustion requirement has been met. See, e.g., Sparrow v. United States Postal
Service, 825 F. Supp. 252, 255 (9th Cfr.1993) (“Because

§ 2675(a) of the FTCA requires that an

administrative claim be finalized at the time the complaint is filed, plaintiffs complaint cannot be
cured through amendment, but instead, plaintiff must file a new suit”); Germano v. United States,
No. 2:14-CV.-06330, 2015 WL 4138997, at *7 (D.N.J. July 9, 2015) (plaintiff who prematurely filed

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lawsuit before final denial of tort claim could not “cure this defect by filing an amended complaint”
but instead “must file a new FTCA suit”); Kelly v. Sapko, No. 03-3 68, 2006 WL 2380768, at *6
(W.D. Pa. Aug. 16, 2006) (holding that plaintiff could not revive an FTCA claim dismissed for
failure to exhaust by filing an amended complaint after agency denied administrative tort claim).
Because reinstating Plaintiffs complaint will not cure the jurisdictional defect which
resulted in its dismissal, it is hereby ORDERED that Plaintiffs request for permission to file a
motion to reinstate her complaint, ECF No. 21, is denied.

(J

William H.
s
Senior nited States District Court Judge

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