JOHNSON v. US DEPARTMENT OF VETERAN AFFAIRS et al
Filing
31
MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 2/11/2014. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALLEN M. JOHNSON,
CIVIL ACTION NO. 12-4380 (MLC)
MEMORANDUM OPINION
Plaintiff,
v.
NEW JERSEY DOOR WORKS, INC.,
UNITED STATES OF AMERICA,
DEPARTMENT OF VETERANS AFFAIRS,
and JOHN DOE, a fictitious name,
Defendants.
COOPER, District Judge
The plaintiff, Allen M. Johnson (“Johnson”), brought this
action against the defendants, New Jersey Door Works, Inc., United
States of America, Department of Veterans Affairs (the “VA”), and
John Doe, a fictitious name (collectively, the “defendants”), to
recover damages for personal injuries.
Am. Comp.)
(See dkt. entry no. 17, 2d
The VA now moves to dismiss the Second Amended
Complaint, insofar as it is asserted against the VA, pursuant to
Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”), for
lack of subject-matter jurisdiction, arguing that the claims
asserted against the VA are barred by the Federal Tort Claims Act
(“FTCA”).
(See dkt. entry no. 24, Notice of Mot. & Br.)
opposes the Motion.
(See dkt. entry no. 26, Opp’n Br.)
Johnson
The Court will resolve the Motion on the papers and without
oral argument pursuant to Local Civil Rule 78.1(b).
The Court, for
the reasons stated herein, will grant the Motion.
I.
LEGAL STANDARDS
A.
Motion to Dismiss
A defendant may move to dismiss for lack of subject-matter
jurisdiction at any time.
See Iwanowa v. Ford Motor Co., 67
F.Supp.2d 424, 437–38 (D.N.J. 1999); see also Fed.R.Civ.P.
12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.”).
“A Rule 12(b)(1) motion may be treated as either a
facial or factual challenge to the court’s subject matter
jurisdiction.”
Gould Elecs. Inc. v. United States, 220 F.3d
169, 176 (3d Cir. 2000).
Under either challenge, the plaintiff
has the burden of persuasion to convince the Court it has
jurisdiction.
See id. at 178.
When reviewing a facial attack, the Court assumes the
allegations in the complaint are true, and may dismiss the
complaint only if it appears to a certainty that the plaintiff
will not be able to assert a colorable claim of subject-matter
jurisdiction.
See Cardio–Med. Assocs., Ltd. v. Crozer–Chester
Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F.Supp.2d
at 438.
When reviewing a factual challenge, in contrast, “no
presumptive truthfulness attaches to plaintiff’s allegations,
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and the existence of disputed material facts will not preclude
the trial court from evaluating for itself the merits of
jurisdictional claims.”
See Mortensen v. First Fed. Savs. and
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
The Court may
consider affidavits, depositions, and testimony to resolve
factual issues, and the Court is free to weigh the evidence to
satisfy itself as to the existence of its power to hear the
case.
See Iwanowa, 67 F.Supp.2d at 438.
The Motion concerns a
factual challenge, and thus the Court is permitted to look
beyond the pleadings.
See Medina v. City of Phila., 219
Fed.Appx. 169, 172 (3d Cir. 2007) (finding defendant’s motion to
dismiss based on plaintiff’s failure to exhaust remedies under
the FTCA to be factual attack on jurisdiction); Arias v. United
States, No. 05–4275, 2007 WL 608375, at *2 (D.N.J. Feb. 23,
2007) (same).
B.
The FTCA
“It is elementary that the United States, as sovereign, is
immune from suit save as it consents to be sued . . ., and the
terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.”
United States v.
Mitchell, 445 U.S. 535, 538 (1980) (internal quotation marks
omitted).
“A waiver of sovereign immunity cannot be implied but
must be unequivocally expressed.”
omitted).
Id. (internal quotation marks
“[F]ederal courts do not have jurisdiction over suits
3
against the United States unless Congress, via a statute,
expressly and unequivocally waives the United States’ immunity
to suit.”
United States v. Bein, 214 F.3d 408, 412 (3d Cir.
2000).
The FTCA waives sovereign immunity for claims against the
United States seeking monetary damages where the injury results
from a “negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant.”
§ 1346(b)(1).
See 28 U.S.C.
Such a claim, however, “shall be forever barred
unless it is presented in writing to the appropriate Federal
agency within two years after such claim accrues.”
U.S.C. § 2401(b) (emphasis added).
See 28
For purposes of 28 U.S.C. §
2401(b), “a claim shall be deemed to have been presented when a
Federal agency receives from a claimant, his duly authorized
agent or legal representative, an executed Standard Form 95
[(“SF-95”)] or other written notification of an incident . . .
.”
28 C.F.R. § 14.2(a).
“A claim shall be presented to the Federal agency whose
activities gave rise to the claim. . . .
A claim shall be
presented as required by 28 U.S.C. 2401(b) as of the date it is
received by the appropriate agency.”
28 C.F.R. § 14.2(b)(1).
The plaintiff carries the burden of proof to establish
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presentment of the claim to the appropriate agency.
219 Fed.Appx. at 172.
See Medina,
The plaintiff “must offer proof of actual
receipt of the claim [by the appropriate agency] (or strong
evidence from which receipt can be inferred) to satisfy the two
year limitation in § 2401(b)”.
See id. at 173 (dismissing FTCA
claim where plaintiff offered no proof, other than unsigned
letter and her attorney’s affidavit indicating that her attorney
sent claim on particular date).
II.
FINDINGS OF FACT
Johnson was an employee of Mile Square Roofing Company and
was working at a job site located at the VA in Lyons, New
Jersey.
(See Br. at 2; Opp’n Br. at 6.)
Johnson alleges that
on July 15, 2010, while working at the VA job site, he was
struck on the head by a garage door motor, causing him severe
personal injuries.
(See id.)
Johnson filed a Complaint on July
13, 2012, initially naming the VA and New Jersey Door Works,
Inc. as defendants.
Compl.)
(See id.; see generally dkt. entry no. 1,
Johnson alleges that the defendants’ negligence caused
his injuries.
(See Br. at 2; Opp’n Br. at 6.)
Johnson
voluntarily dismissed the claims asserted against the VA on
December, 14, 2012.
(See Br. at 2; Opp’n Br. at 6.)
On June 3,
2013, Johnson filed a Second Amended Complaint, which again
named the VA as a defendant.
(See id.; see generally 2d Am.
Compl.)
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Johnson and the VA disagree as to the precise date
Johnson’s SF-95 was presented to the VA.
Johnson alleges that
he served the VA with a completed and signed copy of the SF-95
via personal service on July 13, 2012.
(See Opp’n Br. at 7.)
James Pfeiffer, Sr. was hired by Johnson’s attorney to be a
courier and hand deliver the SF-95 to the VA.
(See id.)
Pfeiffer is the father of Johnson’s attorney.
(See dkt. entry
no. 26-2, Certification of James Pfeiffer, Sr.)
Mr.
Johnson states
that when Mr. Pfeiffer arrived at the VA building, he was
directed to go to a specific building on the campus in order to
properly serve the SF-95.
(See Opp’n Br. at 7.)
Mr. Pfeiffer
allegedly proceeded to serve the SF-95 on the individual working
at the front desk of the building he was directed to go to, and
that individual accepted service of the SF-95.
(See id.)
The
VA alternatively argues that it did not receive the SF-95 until
July 17, 2012.
(See Br. at 2.)
III. ANALYSIS
The question in this case is one of presentment under the
FTCA.
As stated supra, Johnson carries the burden of proof to
establish presentment of his claim to the VA.
Fed.Appx. at 172.
See Medina, 219
In order to satisfy the presentment
requirement, Johnson must demonstrate that the VA actually
received his SF-95 by July 15, 2012, which is two years after he
suffered his injuries.
See 28 C.F.R. § 14.2(a).
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Johnson “must
offer proof of actual receipt of the SF-95 [by the VA] (or
strong evidence from which receipt can be inferred) to satisfy
the two year limitation.”
See Medina, 219 Fed.Appx. at 173.
Johnson argues that the VA received his SF-95 on July 13,
2012, and thus the SF-95 was properly presented to the VA.
Opp’n Br. at 7.)
(See
Johnson avers that, although he does not have
proof of actual receipt of the SF-95 by the VA, “there is strong
evidence from which receipt can be inferred.”
(See id. at 11.)
Johnson offers – as strong evidence from which receipt can be
inferred – the Certifications of Gwen Mills, a paralegal
employed by the plaintiff counsel’s law firm, and Mr. Pfeiffer.
(See id. at 11-13; dkt. entry no. 26-1, Certification of Gwen
Mills; Certification of James Pfeiffer, Sr.)
Ms. Mills certifies:
1.
. . . I am employed as a paralegal with the law
firm of Pfeiffer, Bruno, Minotti & DeEsch.
2.
On July 12, 2012 with information from Plaintiff,
Allen Johnson, and counsel for Plaintiff, James
Pfeiffer, Jr., I prepared and completed a [SF-95].
See attached Exhibit “A”.
3.
I then sent a check request/reimbursement form to
the payroll department of my law firm in order to hire
James Pfeiffer, Sr. to serve the SF-95 with cover
letter and a state Complaint for the Plaintiff. See
attached Exhibit “B”.
4.
I prepared a cover letter to go along with the
completed SF-95 to be hand delivered by James
Pfeiffer, Sr., on July 13, 2012. See attached Exhibit
“C”.
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5.
On July 13, 2012 I gave to James Pfeiffer, Sr., a
state Complaint and a SF-95 with cover letter to hand
deliver the Complaint to the Somerset County
Courthouse and the SF-95 to the Veterans Affairs
Hospital, Lyons Campus, located at 151 Knollcroft
Road, Lyons, New Jersey.
6.
On July 13, 2012 at approximately 3:45 P.M. I
received a phone call from James Pfeiffer, Sr., he
told me that the Veterans Affairs secretary in the
first building he entered would not accept the SF-95
and that he was directed to the administration
building. I told him to go to the administration
building and to serve the SF-95 with cover letter
there.
7.
James Pfeiffer, Sr. thereafter informed me that
the secretary/clerk at the administrative office had
accepted service of the SF-95 on July 13, 2012.
(Certification of Gwen Mills at ¶¶ 1-7.)
Ms. Mills attached the
SF-95, the check reimbursement form, and the cover letter as
exhibits to her Certification.
Mills, Exs. A-C.)
(See Certification of Gwen
The cover letter is dated July 12, 2012.
(See Certification of Gwen Mills, Ex. C.)
Mr. Pfeiffer certifies:
2.
On July 12, 2012 I was hired by my son’s law firm
Pfeiffer, Bruno, Minotti, and DeEsch to serve two
items for the Plaintiff, Allen Johnson, a state
Complaint at the Somerset County Courthouse and a [SF95], with cover letter to the Veterans Affairs
Hospital, Lyons Campus, located at 151 Knollcroft
Road, Lyons, New Jersey.
3.
I picked up the state complaint and SF-95 with
cover letter from Gwen Mills at the law office of
Pfeiffer, Bruno, Minotti, and DeEsch at approximately
2:00 P.M. on July 13, 2012. I first traveled to the
Somerset County Courthouse in order to file a state
complaint in this matter. See attached Exhibit “A”.
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4.
I then traveled to the Veterans Affairs Hospital,
Lyons Campus located at 151 Knollcroft Road, Lyons,
New Jersey and arrived at approximately 3:30 P.M.
5.
I walked to the very first building from the
parking lot, as I entered the building I attempted to
serve the cover letter and SF-95 on the Veterans
Affairs secretary who was working at the desk next to
the entrance. The Veterans Affairs secretary told me
that this was not the right building to serve the SF95 and directed me to a specific office at the
administration building.
6.
I then called Gwen Mills to inform her that the
first building I entered would not accept the SF-95
and that I was directed to the administration
building.
7.
I then walked over to and entered the
administration building and went to the office I had
been directed to deliver the SF-95. Upon my arrival
at the office I had been directed to go to a
secretary/clerk reviewed the cover letter and SF-95
and told me “ok, thank you,” I then left the building.
8.
I billed the law firm of Pfeiffer, Bruno,
Minotti, and DeEsch for the delivering of the SF-95
form at the end of the month of July 2012, the
handwritten bill clearly indicates that I made the
delivery to the “Lyons Hosp” for client “Johnson” on
July 13, 2012. See attached Exhibit “B”.
9.
I was paid by the law firm of Pfeiffer, Bruno,
Minotti and DeEsch for my services of serving the
cover letter and SF-95 on the Veterans Affairs
Hospital via check #10483 dated August 17, 2012. See
attached Exhibit “C”.
(Certification of James Pfeiffer, Sr. at ¶¶ 2-9.)
Mr. Pfeiffer
attached copies of the Complaint, hand written bill, and check
to his Certification.
(See Certification of James Pfeiffer,
Sr., Exs. A-C.)
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The VA argues that it did not receive Johnson’s SF-95 until
July 17, 2012, two days after the two year limitations period
expired.
(See Br. at 2.)
The VA submits the Declaration of
Mary Jo A. Apice – an Administrative Officer in the Director’s
Office of the VA – wherein she avers that, although the SF-95 is
dated July 11, 2012, the SF-95 was not received by her office
until July 17, 2012.
(See dkt. entry no. 24-2, Decl. of Mary Jo
A. Apice at ¶¶ 1-2.)
The Court has evaluated the merits of the jurisdictional
claims - as it is permitted to do when reviewing a factual
challenge - and finds that Johnson has not carried his burden of
proving that he presented his claim to the VA by July 15, 2012.
See Mortensen, 549 F.2d at 891.
Johnson cites to Medina for the
proposition that a plaintiff “must offer proof of actual receipt
of the SF-95 [by the VA] (or strong evidence from which receipt
can be inferred) to satisfy the two year limitation.”
Medina, 219 Fed.Appx. at 173.
See
In Medina, the court held that
the “attorney’s affidavit, standing alone, indicating that she
mailed an administrative claim, is insufficient to prove
presentment of such claim to the appropriate federal agency”
where the agency had no record of receipt of the plaintiff’s
administrative claim.
See id.1
1
In Medina, the plaintiff alleged that she was injured on
December 9, 2002 and mailed a completed administrative claim to
10
Johnson argues that Ms. Mills’s Certification is “strong
evidence from which receipt can be inferred,” like that
contemplated by Medina.
(See Opp’n Br. at 11-12.)
Her
Certification indicating that she completed Johnson’s SF-95 and
gave it to a courier to deliver to the VA, however, has the same
weight as the attorney’s affidavit in Medina.
Neither instance
“demonstrate[s] that the appropriate federal agency actually
received the claim.”
See Medina, 219 Fed.Appx. at 172; see also
28 C.F.R. § 14.2(a); Murray v. United States, 604 F.Supp. 444,
445 (E.D. Pa. 1985).
Johnson also mistakenly attempts to distinguish his case
from Murray.
(See Opp’n Br. at 10-11.)
In Murray, there was a
dispute as to when the plaintiffs’ SF-95 was delivered to the
agency and to whom it was delivered.
See Murray, 604 F.Supp. at
the appropriate agency on March 11, 2004. See id. at 170-71.
The agency, however, had no record of receipt of the plaintiff’s
administrative claim. See id. at 173. The court remarked that
“[e]ven if the March 11, 2004, letter was actually mailed within
two years of her alleged injury, Medina must offer proof of
actual receipt of the claim (or strong evidence from which
receipt can be inferred) to satisfy the two year limitation in §
2401(b).” Id. The plaintiff had no actual proof that the
agency received her claim; the only evidence that she offered
was an unsigned letter and her attorney’s affidavit indicating
that her attorney sent the claim on that date. See id. The
agency submitted the declarations of two employees, which stated
that the agency had no record of receipt of the plaintiff’s
administrative claim. See id. The court held that “[i]n most
cases, as in this one, an attorney’s affidavit, standing alone,
indicating that she mailed an administrative claim, is
insufficient to prove presentment of such claim to the
appropriate federal agency.” Id.
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445.
The plaintiffs’ attorney stated in an affidavit that he
hand delivered the SF-95 to an unidentified employee at the
agency.
See id.
The defendant submitted an affidavit from the
agency’s accident investigator stating that they never received
the SF-95.
See id.
The court - acknowledging that the
plaintiffs had no receipt and were unable to identify the
individual to whom the claim was hand delivered - declared that
“[i]t would be reasonable to conclude that plaintiffs’ attorney
must have delivered the form to someone who was not an agency
employee and that no proper presentment could be established on
the record.”
See id.
Johnson argues that his case
present[s] a different factual scenario, as
Plaintiff’s courier did not give it to just any person
at the Defendant’s place of business. Upon arrival at
Defendant’s place of business Plaintiff’s courier was
directed to a specific office building. . . . [and]
presented the documents to the person who was working
the front desk.
(See Opp’n Br. at 11.)
The Court disagrees with Johnson and
finds that his proffered evidence of presentment is analogous to
that of the plaintiffs in Murray.
Just as in Murray where
plaintiffs’ counsel stated in his affidavit that he hand
delivered the SF-95 to an unidentified agency employee, Mr.
Pfeiffer certifies that he hand delivered Johnson’s SF-95 to an
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unidentified clerk in an unidentified building on the VA’s
campus.
(See Opp’n Br. at 7, 11.)
The presentment requirement is not an onerous requirement,
as proof of receipt can easily be secured by obtaining
acknowledgment of receipt from the agency.
Fed.Appx. at 172.
See Medina, 219
Surely, Mr. Pfeiffer, a professional courier,
should have benefited from a depth and breadth of personal
experience, teaching him to secure a receipt.
Although actual
proof of receipt is not the sole method of establishing
presentment, the proof offered by Johnson is simply not strong
enough to establish that the VA actually received the claim by
July 15, 2012.
See Medina, 219 Fed.Appx. at 172-73; see also 28
C.F.R. § 14.2(a).
For the above reasons, the Court finds that Johnson has
failed to offer proof of actual receipt of the SF-95 by the VA,
or strong evidence from which receipt can be inferred.
Because
Johnson fails to satisfy the presentment requirement, the Court
lacks subject-matter jurisdiction over the claims brought
against the VA.
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IV.
CONCLUSION
For the reasons stated, and for good cause showing, the Court
will grant the motion to dismiss.
The Court will issue an
appropriate order and judgment.2
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: February 11, 2014
2
The Court will also issue a separate Order To Show Cause
concerning subject-matter jurisdiction over any remaining claims.
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