Hardie v. Richards et al

Filing 28

MEMORANDUM and ORDER: Defendant's motion 25 to dismiss without prejudice is GRANTED. The Clerk is directed to enter judgment accordingly. Ordered by Judge Frederic Block on 10/23/2018. (Innelli, Michael) Modified on 10/23/2018 (Innelli, Michael).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DELROY HARDIE,
Plaintiff,
MEMORANDUM AND ORDER
Case No. 17-CV-01201 (FB) (RLM)

-againstTHE UNITED STATES OF AMERICA
and THE UNITED STATES POSTAL
SERVICE
Defendants.
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Appearances:
For the Plaintiff:
ADAM J. ROTH
Law Offices of Adam J. Roth
26 Court Street, Suite 913
Brooklyn, New York 11242

For the Defendants:
RICHARD P. DONOGHUE
United States Attorney
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201
By: DARA A. OLDS

BLOCK, Senior District Judge:
The United States of America, the United States Postal Service (“USPS”), and
Roberto Richards (collectively, “Defendants”) move to dismiss this Federal Torts
Claims Act (“FTCA”) action, see 28 U.S.C. §§ 1346, 2671 et seq., for lack of
subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
Defendants contend that the Court lacks jurisdiction because Plaintiff Delroy
Hardie’s claim was not properly presented to the USPS as required by
28 U.S.C. § 2675. The Court agrees and dismisses the action.
1

I.
Hardie alleges that on March 6, 2015, he was sitting in a parked car when it
was sideswiped by a USPS truck operated by Richards. On April 8, 2016, Hardie
submitted a “Standard Form 95” (“SF-95”),1 claiming $20,000,000 in personal
injury damages. Hardie claimed that he “has had a lumbar fusion of the L3-L4
spine” and “suffered multiple injuries to the head, neck, back, arms, knees, legs, feet,
internal and external injuries to the whole body, [and] lower and upper extremities.”
In support, Hardie attached a police accident report and a four-page “operative
report,” which described the L3-L4 fusion and noted complaints of pain in the lower
back and left leg. The operative report did not mention the other injuries and did not
include any estimation of costs.
By later dated May 5, 2016, the USPS requested that Hardie provided
additional information, including “a written report by the attending physician,
showing the nature and extent of injury, the nature and extent of treatment, the
degree of permanent disability, if any, the prognosis and the period of hospitalization
or incapacitation.” In addition, the USPS requested that Hardie include “itemized
bills for medical, hospital, or burial expenses actually incurred.” Hardie did not
respond to this letter. On February 2, 2017, the USPS wrote to him a second time,

1

The SF-95 is a form provided by the Department of Justice that can be used
to satisfy the “presentment” requirement of the FTCA. See 28 U.S.C. § 2675(a);
28 C.F.R. § 14.2(a).
2

requesting the same documentation. After Hardie again failed to respond, his request
was finally denied by letter dated March 23, 2017.
II.
As a precondition to filing a lawsuit, § 2675(a) requires claimants to “first
present[] the claim to the appropriate Federal agency.” Only after a final denial of
the claim by the agency is the claimant allowed to sue. The United States argues
that this “presentment” requirement is jurisdictional. Hardie disagrees and further
argues that he met the requirement even if it is jurisdictional.

Whether the

requirement is jurisdictional is a threshold question because the burden to show
jurisdiction is on the party asserting it. Shenandoah v. Halbritter, 366 F.3d 89, 91
(2d Cir. 2004). Thus, if the presentment requirement is jurisdictional, the burden is
on Hardie to show that he met the requirement. The Court holds that the presentment
requirement is jurisdictional and that Hardie did not fulfill it.
A.
Because the FTCA is a waiver of the United States’ sovereign immunity, it is
“not to be ‘liberally construed,’” United States v. Nordic Village, Inc., 503 U.S. 30,
34 (1992), and the procedural requirements imposed by Congress must be strictly
respected by the courts, see Dolan v. USPS, 546 U.S. 481, 492–93 (2006).
Accordingly, the Second Circuit has repeatedly held that the presentment
requirement is jurisdictional. See, e.g., Romulus v. United States, 160 F.3d 131 (2d
3

Cir. 1998) (per curiam); Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.
1983) (“The requirement that a notice of claim be filed is jurisdictional and cannot
be waived.

Moreover, because the FTCA constitutes a waiver of sovereign

immunity, the procedures set forth in Section 2675 must be adhered to strictly.”
(internal citations omitted)).
Hardie points to a more recent Supreme Court case, United States v. Wong,
135 S. Ct. 1625 (2015), for the view that the requirement is non-jurisdictional.
Wong, however, only held that the FTCA’s statute of limitations, prescribed by
28 U.S.C. § 2401, are subject to equitable tolling. Wong’s reasoning was based on
the unique nature of statutes of limitations and thus do not extend to the presentment
requirement. Hardie’s reliance on lower court cases that cite Wong are therefore
unavailing because they only discuss the time bar.2 The Court adheres to circuit
precedent in holding that the presentment requirement is jurisdictional.
B.
Hardie has not met his burden of establishing the Court’s jurisdiction.
Presentment requires that the claimant allows the agency to investigate the claim and

2

See Casella v. United States, 642 F. App’x 54, 55–56 (2d Cir. 2016)
(acknowledging that time bar is non-jurisdictional after Wong); Torres v. United
States, 612 F. App’x 37, 40–41 (2d Cir. 2015) (district court should have dismissed
pursuant to Rule 12(b)(6) instead of 12(b)(1) because the FTCA’s time bar is not
jurisdictional after Wong); Marcus v. USPS, 14-CV-00330, 2015 WL 2389955
(E.D.N.Y. May 20, 2015) (same).
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its strength. Hardie’s threadbare SF-95 submission followed by repeated silence in
the face of the USPS’s requests for additional information deprived the agency of its
right to investigate his claims.
The facts of this case are similar to those in Romulus v. United States. Here,
as in Romulus, Hardie declined to provide the agency with sufficient information to
evaluate the worth of his claim, asserting in conclusory fashion multiple
undocumented injuries and their financial cost. See 983 F. Supp. 336, 342 (E.D.N.Y.
1997) (“[N]one of the relevant information that would provide the government with
a basis to evaluate the claim is within its possession. Moreover, the little information
that was presented was presented in a conclusory form, making it essentially
impossible to evaluate the claim.”). Affirming Romulus on appeal, the Second
Circuit explained: “[T]he mere act of filing a SF 95 does not necessarily fulfill the
presentment requirement of § 2675(a).

A claimant must provide more than

conclusory statements which afford the agency involved no reasonable opportunity
to investigate.” 160 F.3d at 132.
Hardie counters that his operative report “detailed a litany of diagnoses,” the
value of which “is readily obtainable” by the government. The operative report,
however, only addresses some aspects of the claimed injuries to Hardie’s back and
left leg, which are themselves only a small subset of the injuries described on the
SF-95. There is no documentation concerning the remaining injuries. Further, even
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as to the injuries described in the operative report, it is Hardie’s burden to provide
evidence of the value of his claims, rather than the government’s burden to discover
them. See Hewitt v. United States, No. 10-CV-5774, 2011 WL 2419856, at *3
(S.D.N.Y. June 6, 2011) (presentment requirement not met where plaintiff did not
submit costs of medical expenses, arguing that agency could estimate the costs);
accord In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987)
(“The burden is on the plaintiff to both plead and prove compliance with the statutory
requirements.”). Hardie provides no authority for the opposite view.
Accordingly, Hardie has not satisfied the presentment requirements of § 2675.
III.
For the foregoing reasons, the Court grants the motion to dismiss, without
prejudice.3
SO ORDERED.

/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
October 23, 2018

3

The dismissal is without prejudice because Hardie has sixty days to properly
present his claims to the agency following dismissal. See 28 U.S.C. § 2679(d)(5).
6