Abdalla v. United States of America
Filing
19
ORDER granting 12 Motion to Dismiss for Lack of Jurisdiction: For the reasons stated in the attached Memorandum and Order, Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) is granted and this case is dismissed for l ack of subject-matter jurisdiction. The Clerk of Court is respectfully directed to close the case.Additionally, Plaintiff's counsel shall provide a copy of the Memorandum and Order to Plaintiff within three business days. Plaintiff' ;s counsel shall then file a letter on the docket no later than February 4, 2025, certifying that Plaintiff has been provided the Memorandum and Order and specifying the manner in which it was transmitted to Plaintiff. Ordered by Judge Nina R. Morrison on 1/29/2025. (AH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Emad Abdalla,
Plaintiff,
23-cv-03551 (NRM) (VMS)
v.
MEMORANDUM AND ORDER
The United States of America,
Defendant.
NINA R. MORRISON, United States District Judge:
Plaintiff Emad Abdalla brings claims against Defendant the United States of
America pursuant to the Federal Tort Claims Act (“FTCA”), seeking damages for
serious injuries and property damage he says he incurred as a result of a motor
vehicle accident caused by an employee of the United States Army (the “Army”) while
said employee drove a government-owned vehicle in October 2022.
Defendant moves to dismiss for lack of subject matter jurisdiction. Specifically,
Defendant argues that Plaintiff failed to satisfy the FTCA’s presentment
requirement, which requires plaintiffs to present any tort claims to the appropriate
federal agency prior to filing suit.
While all parties agree that Plaintiff timely
submitted a Standard Form 95, Claim for Damage, Injury, or Death, (SF-95) to the
appropriate agency, Defendant contends that Plaintiff did not provide enough
1
specificity in his claim to satisfy the presentment requirement. 1 The Court agrees.
For the reasons to follow, Plaintiff’s submission of an SF-95 to the Army was not
sufficient to satisfy the presentment requirement. Accordingly, the Court grants
Defendant’s motion to dismiss without prejudice.
BACKGROUND
On October 31, 2022, Abdalla filed an SF-95 with the U.S. Army Claims
Service. Abdalla SF-95, Gov’t Ex. A, ECF No. 13-1. In the section titled “Basis of
Claim,” he stated that he “was the driver of Veh. 1, on George Washington Bridge,
New York side, when a vehicle behind me, operated by Kofi O. Serebour, Staff
Sergeant, US Army, struck me from the rear.” Id. at 3. 2 Under the section titled
“Property Damage,” he indicated only that there was damage “to the back of my Grey,
2013 Toyota.” Id. And in the personal injury section he stated as follows: “Multiple
serious bodily injuries, the full extent of which is unknown, but which includes back,
head, neck and left leg, as well as other injuries to body and limbs.” Id. The form
claimed six thousand dollars in property damage and two million dollars in damages
for “personal injury.” Id.
1 Defendant also argues that, to the extent the Army and Kofi Otou Serebour
are construed as Defendants, this is improper as the only proper defendant in an
FTCA case is the United States. See Gov’t Br. at 9–10, ECF No. 14; see also Rivera
v. United States, 928 F.2d 592, 609 (2d Cir. 1991) (explaining that the United States
itself is the only proper defendant in an FTCA suit). Plaintiff does not dispute this
contention. See Abdalla Br. at 6, ECF No. 17. Thus, any claims that could be
construed against the Army or Kofi Otou Serebour are dismissed.
Pincites refer to page numbers generated by CM/ECF, and not the document’s
internal pagination.
2
2
The SF-95 came with a cover letter from the Law Offices of William Pager,
indicating that the firm “represents [Emad Abdalla]” and with the instruction to
“acknowledge [the firm’s] representation and forward any/all future correspondence
to [the firm’s] attention.” Id. at 2. The letter did not contain, nor attach, further
“evidence . . . establishing express authority to act for the claimant,” as required by
the instructions on the SF-95 form. Id. at 4.
What transpired next is debated in the parties’ moving papers, although it is
largely irrelevant to the question of whether Abdalla’s presentment of his claim was
adequate. Alma L. Whitelaw, an Attorney Advisor at the Army’s Fort Hamilton
Installation Legal Office, submitted a declaration with the Defendant’s motion to
dismiss indicating that upon receiving the SF-95, the Army determined that “there
were deficiencies in the information presented.” Whitelaw Decl. at 2, ECF No. 13.
The Army sent a letter to Abdalla asking him to provide a police report, no fault
insurance contact information, an estimate for the property damage, medicals from
the last five years, his current telephone, and a signed attorney agreement. See Letter
to Abdalla at 2, Gov’t Ex. C, ECF No. 13-3. It also sent an email to the Law Offices of
William Pager asking for similar information and indicating that the Army could not
“continue to reply to [the firm] regarding the claim of Emad H. Abdalla” without a
representative agreement or retainer. See Email to Pager at 2, Gov’t Ex. D, ECF No.
13-4. Plaintiff does not dispute either of these communications were sent, 3 but does
While not directly disputing that both these communications were sent,
Plaintiff argues that Defendant’s representations that it made efforts to contact the
Law Offices of William Pager are “discredited” because if the Army knew he was
3
3
dispute that the information sought by the Army had not previously been provided.
See Abdalla Br. at 8–9, ECF No. 17. Specifically, Plaintiff contends that he wrote his
insurance policy details on the SF-95 form, which was sufficient contact information
for his no-fault insurer, that he did not send police or medical records because none
had been generated at that point, and that he was not required to provide a retainer
agreement under the statute’s presentment requirements. Id.
The Army then received a letter from Mr. William Pager and called his law
office, informing a person at the office of the items the Army required for Abdalla’s
claim. Whitelaw Decl. ¶ 8. Though that person stated the information would be
submitted shortly, the Army did not receive a response. Id. ¶¶ 8–9. About one month
later, on January 9, 2023, a person who identified themselves as Joseph Medic left
the Army a voicemail claiming to be a lawyer from the Law Offices of William Pager
and identifying Abdalla’s claim number, asking for a return call. Id. ¶ 10. When Ms.
Whitelaw returned the call the next day, the person who answered told Ms. Whitelaw
that Mr. Medic was not available and that she would let him know Ms. Whitelaw had
called. Id. ¶ 11. Mr. Medic left a voicemail for the Army on January 11, and when
Ms. Whitelaw called back the same day, she was informed that Mr. Medic was again
unavailable. Id. ¶ 12. According to Ms. Whitelaw, the Army did not receive any
further communication from the Law Offices of William Pager. Id. ¶ 13.
represented by counsel, then Defendant violated the New York Rules of Professional
Conduct by sending a letter to Plaintiff directly. See Abdalla Br. at 7–8, ECF No. 17.
4
In May of 2023, Plaintiff filed suit in this Court against the United States
pursuant to the FTCA. See Compl. at 1, ECF No. 1. In it, he indicated that on
November 4, 2022, he “served upon the United States Army [a] Claim for Damage,
Injury, or Death,” and as of May 11, 2023, the Army “failed to respond and/or adjust
it in a timely fashion, pursuant to 28 U.S.C.A. § 2675.” Id. at 2. In the Complaint,
Plaintiff does not provide any more details than he did on his SF-95 as to the specifics
of his injuries or the damage to his 2013 Toyota motor vehicle. See id. at 6–7. He
claims five million dollars in damages for “personal injury” and ten thousand dollars
in damages to his vehicle. Id.
On November 15, 2023, Defendant filed the instant motion to dismiss for lack
of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). See generally Gov’t
Br., ECF No. 14. In it, Defendant argues that the action should be dismissed as
Plaintiff failed to satisfy the presentment requirement, and thereby failed to
administratively exhaust his claims, before bringing them to this Court under the
FTCA. See id. at 6.
LEGAL STANDARD
“When considering a motion to dismiss pursuant to Rule 12(b)(1), the court
must take all facts alleged in the complaint as true and draw all reasonable inferences
in favor of plaintiff.” Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). In resolving
such a motion, district courts are empowered to “refer to evidence outside the
pleadings.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
5
Additionally, “[a] plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Id.
DISCUSSION
Defendant moves to dismiss the Complaint because it argues that Plaintiff has
not satisfied the FTCA’s presentment requirement, which is a prerequisite to this
Court’s jurisdiction. Specifically, Defendant argues that the generalized assertion as
to damages in Plaintiff’s notice of claim violates well-settled law requiring FTCA
claimants to identify their damages with specificity, in order to give the United States
a fair opportunity to investigate the surrounding circumstances and any claimed
damages in advance of litigation. The Court agrees.
I.
FTCA Presentment Requirement
“‘[S]overeign immunity’ protects the United States from suit unless Congress
specifically abrogates that immunity by statute.” Mortise v. United States, 102 F.3d
693, 696 (2d Cir. 1996). The FTCA, which states that “[t]he United States shall be
liable, respecting the provisions of this title relating to tort claims, in the same
manner and to the same extent as a private individual under like circumstances,”
expressly waives the United States’ sovereign immunity. 28 U.S.C. § 2674; Collins v.
United States, 996 F.3d 102, 109 (2d Cir. 2021). However, the FTCA’s sovereign
immunity waiver “is subject to a jurisdictional prerequisite.” Collins, 996 F.3d at
109. That is, a tort action against the United States “shall not be instituted . . . unless
the claimant shall have first presented the claim to the appropriate Federal agency.”
28 U.S.C. § 2675(a); see also Dominguez v. Chornoma, No. 23-cv-2593 (ENV) (RER),
6
2023 WL 3366619, at *1 (E.D.N.Y. May 10, 2023) (“Article III courts have no
jurisdiction over FTCA claims that have not been administratively exhausted.”).
Because the presentment requirement is jurisdictional, it cannot be equitably
tolled. See United States v. Wong, 575 U.S. 402, 408–09 (2015); see also Beretin v.
United States, 22-cv-7570 (RPK) (MMH), 2024 WL 707282 at *2 (E.D.N.Y. Feb. 21,
2024) (stating that as the presentment requirement is jurisdictional, it “consequently
cannot be equitably tolled”). Proper presentment is important because it empowers
the government agency to “investigate, evaluate and consider settlement of a claim.”
Pina v. United States, 20-cv-1371 (PAE) (BCM), 2021 WL 2019003 at *3 (S.D.N.Y.
Apr. 20, 2021) (quoting Furman v. U.S. Postal Serv., 349 F. Supp. 2d 553, 557
(E.D.N.Y. 2004)).
The “mere act of filing a SF-95 [notice of claim] does not necessarily fulfill the
presentment requirement.” Romulus v. United States, 160 F.3d 131, 132 (2d Cir.
1998) (“Romulus II”), aff’g 983 F. Supp. 336 (E.D.N.Y. 1997) (“Romulus I”). This is
because a claimant “must provide a reviewing agency with sufficiently specific
information as to the basis of the claim, the nature of the claimant’s injuries, and the
amount of damages sought such that the agency can reasonably understand what it
must investigate to determine liability, to value the claim, and to assess the
advisability of settlement.” Collins, 996 F.3d at 119. Therefore, mere “conclusory
statements which afford the agency involved no reasonable opportunity to
investigate” will not satisfy this jurisdictional hurdle. Romulus II, 160 F.3d at 132.
7
It is important to note, however, that “the presentment requirement [is] one of
notice, not proof.” Collins, 996 F.3d at 110. As such, the Second Circuit has confirmed
that presentment does not “require[] an administrative claimant to supply the agency
with supporting evidence referenced in regulations promulgated pursuant to 28
U.S.C. § 2672.”
Id. at 114–115.
Thus, while a claimant must provide enough
information such that an agency can sufficiently investigate a claim, that information
need not necessarily be in the form “specific regulatory-defined evidence.” id. at 115.
II.
Application
Defendant maintains that Plaintiff “failed to provide adequate specificity for
notice” either in the SF-95 or in response to the Army’s follow up inquiries. Gov’t Br.
at 12. Plaintiff focuses his opposition on the fact that the Collins court specifically
held that supporting documentation is not essential to satisfy the presentment
requirement. See Abdalla Br. at 10. Additionally, Plaintiff argues that the Army did
not make sufficient “efforts to obtain the information they claimed to seek” in that,
according to Plaintiff, the only steps the Army took to obtain that information after
receiving the SF-95 were two phone calls by Ms. Whitelaw to the Law Offices of
William Pager and a letter written directly to Abdalla, which Plaintiff argues was
improper. Id. at 10–12
Addressing Plaintiff’s argument about the Army’s efforts to obtain information
first: while there have been many cases in which an agency has reached out to an
FTCA claimant informing them that their claim was insufficient, “no court [has]
found a statutorily mandated duty to solicit further information from an FTCA
8
claimant.”
Guzman v. U.S. Postal Serv., 21-cv-4415 (LAK) (RWL), 2022 WL
17169529, at *7 (S.D.N.Y. Nov. 17, 2022). In fact, contacting a claimant to address
potential deficiencies in the notice, including to seek further documentation, has been
referred to as a “courtesy,” as “[t]he Government is under no obligation to solicit
information to ensure that jurisdiction is proper.” Donahue v. U.S. Transp. Sec.
Admin., 457 F. Supp. 2d 137, 143 (E.D.N.Y. 2006) (ADS) (AKT). Ultimately, it is the
claimant’s burden to “provide the appropriate agency with sufficient notice of his
claim to permit the agency to conduct an inquiry into the merits of his demand for
compensation.” Collins, 996 F.3d at 110. Thus, Plaintiff’s argument that the Army’s
attempts to contact his attorney were insufficient is irrelevant to the presentment
analysis. 4
Turning to the crux of Defendant’s motion, this Court finds that the SF-95
notice submitted to the Army by Abdalla was not sufficient to satisfy the FTCA’s
jurisdictional presentment requirement. Plaintiff’s SF-95 contains no more than
vague and conclusory descriptions of his injuries and the damage to his vehicle. When
describing his personal injuries, Plaintiff stated that he incurred “[m]ultiple serious
bodily injuries” from the accident. Abdalla SF-95 at 3. At the time of filing, Plaintiff
stated that “the full extent of [these injuries] is unknown, but which includes back,
This is not to say that a claimant cannot later remedy a SF-95 which
insufficiently presented his claim with further information that would give the
agency a “reasonable opportunity to investigate.” Romulus II, 160 F.3d at 132. But
it is not the federal agency’s burden to elicit that information from the claimant, who
has an independent obligation to satisfy the presentment requirement in his or her
own filings.
4
9
head, neck and left leg, as well as other injuries to body and limbs.” Id. In recounting
the damage to his vehicle, he indicated only that there was damage “to the back of
[his] Grey, 2013 Toyota.” Id.
Abdalla has not alleged that he provided the Army
with any additional details concerning his personal injuries or property damage in
the six months between his submission of the SF-95 and his filing of the instant
lawsuit.
The facts in this case bear a striking similarity to those in Romulus I, where
one of the plaintiffs submitted an SF-95 to a federal agency after a vehicle accident
with a federal employee, did not identify the offending driver, and reported injuries
to her “head, body, and extremities, [as well as] pain and suffering, and emotional
distress.” Romulus I, 983 F. Supp. at 337. Her co-plaintiff and spouse wrote in his
claim that, from the same accident, he sought $100,000.00 for “loss of services,” and
$3,500.00 for damage to the vehicle. Id. In that case, the district court found that
this dearth of details in presentment made it “essentially impossible to evaluate the
claim” and dismissed the plaintiffs’ case for lack of subject matter jurisdiction. Id. at
342–43. To be sure, Abdalla, unlike the plaintiffs in Romulus I, identified the driver
of the Army vehicle. See Abdalla SF-95 at 3. However, this only distinguishes his
case from Romulus I in that he may have given the Army sufficient information to
investigate the liability aspect of his claim. This Court can find no discernable
difference, however, in Abdalla’s generalized description of his injuries and those of
the plaintiff in Romulus I. And as in Romulus I, under established Second Circuit
precedent, the information provided was insufficient “to alert [the Army] to the scope
10
of [Abdalla’s] alleged injuries and to permit an investigation in order to value [his]
claim.” Collins, 996 F.3d at 113.
Abdalla argues that he should not be required to provide certain supporting
documentation, such as medical records and police reports, to satisfy the presentment
requirement because those documents did not exist at the time he filed his SF-95.
See Abdalla Br. at 8–10. It is true that the Second Circuit has held that a claimant
is not necessarily required to provide supporting documentation, as “[a]n FTCA
claimant who provides a sufficiently specific narrative need not also submit
substantiating evidence to satisfy presentment.” Collins, 996 F.3d at 119. However,
Abdalla’s argument ignores the requirement that the claimant “provide[] a
sufficiently specific narrative.” Id. In Collins, where the Circuit found that the
supporting documentation requested from an agency was not necessarily required to
satisfy presentment, the claimant in that case had “identifie[d] seven bone fractures
by location: one in [claimant’s] left knee, three to his front ribs, and three to his back
ribs.” Id. at 112. He also reported “a possible fracture to [claimant’s] left elbow, chest
and blood infections, and equilibrium issues.” Id. Additionally, the claimant in
Collins provided the federal agency with documents from Huntington Hospital,
where the claimant had received treatment for his claimed injuries. Id.
Thus, under Collins, while Abdalla is correct that he was not necessarily
required to provide the Army with hospital or police records, he was still required to
provide the Army with some information to evaluate the basis for his claimed
damages. Abdalla’s “vague” and “conclusory” statements regarding his injuries and
11
property damage “fail[ed] to ‘put [the Army] on notice . . . of the immediate’ injuries
and of potential ‘recovery challenges,’” and they certainly did not “alert [the Army] to
the scope of [his] alleged injuries.” Ruffin v. United States, 20-cv-4128 (ST), 2021 WL
4408039, at *4 (E.D.N.Y. Sep. 27, 2021) (quoting Collins, 996 F.3d at 113). This
Court’s review of other post-Collins cases in this Circuit confirm that Abdalla’s SF-95
form did not satisfy the bare minimum that courts have found is required to meet the
presentment requirement. See Beretin, 2024 WL 707282, at *1–2 (holding that an
SF-95 form claiming “severe permanent personal injuries, the full extent of which are
not presently known, but include, upon information and belief, severe and permanent
injuries to [claimant’s] both ankles, both shoulders, right knee, neck and back” was
insufficient to satisfy the presentment requirement); Harrison v. United States, 707
F. Supp. 3d 245, 247, 249 (E.D.N.Y. 2023) (EK) (MJ) (concluding that an SF-95 which
indicated “bodily injuries including but not limited to the right leg and right knee”
did “not constitute adequate presentment under the FTCA”); Guzman, 2022 WL
17169529, at *5 (finding that claimant’s writing of “serious injuries to his head, neck,
shoulders, arms, hands and back” did “not provide sufficient information about the
nature of the injuries he sustained in the collision” to satisfy the presentment
requirement); Ruffin, 2021 WL 4408039, at *3–4 (explaining that an SF-95 which
claimed injuries to “[right] side neck [and] shoulder; mid[dle] [and] lower back” was
not sufficient to satisfy the presentment requirement (alteration in original)).
Thus, because Plaintiff failed to administratively exhaust his claims as
required under 28 U.S.C. § 2675(a), this action must be dismissed for lack of subject
12
matter jurisdiction. The dismissal is without prejudice, as “where a court lacks
subject matter jurisdiction, it also lacks the power to dismiss with prejudice.”
Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999).
III.
Implications of Counsel’s Deficient SF-95
Unfortunately for Abdalla, the presentment requirement is both jurisdictional
and strict: failure to provide sufficient pre-filing notice to the United States requires
the Court to dismiss his entire lawsuit, regardless of its potential underlying merits.
This outcome might well have been avoided had his original SF-95 simply included
enough of a narrative as to his specific injuries to give the Army some basis on which
to evaluate his claim. And while Abdalla bears the consequences, this outcome may
not stem from any fault on Abdalla’s part. Rather, as his counsel’s filings in this
Court make clear, it was the Law Offices of William Pager (the “Firm”) who “served
the U.S. Army with an SF-95.” Abdalla Br. at 6. Additionally, given the amount of
ink spilled in his opposition papers admonishing the Army for sending a letter to
Abdalla himself asking for additional information instead of directing all
communication to his counsel, it appears that Abdalla may have been similarly
advised by his counsel not to communicate directly with the Army. See, e.g., id. at 7–
8 (“In a blatant violation of the Rule 4.2(a) or(b) [sic] of the New York Rules of
Professional Conduct (22 NYCRR 1200 et seq), the U.S. Army admit that they wrote
directly to the claimant . . . .”). While it is of course true that parties are not
authorized to contact represented opposing parties, even if the purpose of contacting
said party is to obtain more information to evaluate a claim, this rule can severely
13
prejudice a represented party where counsel has failed to “act with reasonable
diligence and promptness in representing [their] client.” N.Y. Comp. Codes R. &
Regs. tit. 22, § 1200.0, Rule 1.3(a).
The opposition papers filed by the Law Offices of William Pager admit that the
Army, through Ms. Whitelaw, called the Firm twice, seeking more information as to
Abdalla’s claim. See Abdalla Br. at 11–12. While the Firm notes that an attorney
with the Firm named Joseph Medic called the Army back, it claims that Ms. Whitelaw
was “unavailable to speak with him” at the time he called. Id. at 12. Troublingly
absent from the Firm’s vigorous opposition to the motion on Plaintiff’s behalf is any
explanation as to why neither Mr. Medic nor any other representative of the Firm
simply called the Army back the following day or week, nor took any further steps to
follow up with the Army regarding the purported deficiencies in Abdalla’s SF-95 —
even though the Firm was no doubt aware that failure to provide the Army with
sufficient notice as to the basis of its client’s administrative claim could result in
dismissal. Instead, the Firm’s brief puts the blame on the Army, stating that “[t]he
U.S. Army did not follow these calls with either a letter or an email, as would be
logical or expected.”
Id. In fact, the Army’s request for additional information
relating to Abdalla’s injuries, was, as discussed supra, a “courtesy,” Donahue, 457 F.
Supp. 2d at 143, and it is just as “logical or expected” that Plaintiff’s own attorneys
would have taken it upon themselves to do more than make one or two unreturned
calls to find out why the Army had made a post-filing inquiry about the allegations
in the original SF-95 form they had filed on Plaintiff’s behalf.
14
It is by no means a new or novel concept of law that Abdalla’s SF-95 claiming
“[m]ultiple serious bodily injuries, the full extent of which is unknown, but which
includes back, head, neck and left leg, as well as other injuries to body and limbs”
was insufficient to satisfy the FTCA’s presentment requirement. Abdallah SF-95 at
3. Romulus I, which was affirmed by the Second Circuit in Romulus II, 160 F.3d at
132, and was relied upon by the Second Circuit in Collins, 996 F.3d at 110–12, held
that a claimant citing injuries to the “head, body, and extremities, [as well as] pain
and suffering, and emotional distress” was not sufficient to satisfy presentment.
Romulus I, 983 F. Supp. at 337, 343. This has been established law concerning the
FTCA’s presentment requirement in the Second Circuit for more than two decades.
Even though, in 2021, Collins explicitly held that supporting evidence was not
necessarily required to satisfy presentment, it did not overrule Romulus I. Indeed,
the Collins court reaffirmed that sufficient information must be presented at the
notice stage, “whether by narrative, evidence, or other means.” Collins, 996 F.3d at
114. Any attorney reasonably familiar with this area of law would be aware that the
generalized assertions in Abdalla’s SF-95 fall well short of this standard.
More specifically, the attorneys at this particular law firm should be intimately
familiar with the presentment requirement of the FTCA. Indeed, this Court has
identified no fewer than nine FTCA cases filed in the last thirteen years by the Law
Offices of William Pager in the Eastern District of New York alone. See Thermidor
v. United States of America, 24-cv-4764 (HG) (E.D.N.Y. filed July 9, 2024); Souza
Lima Viana v. United States of America, 24-cv-3118 (RER) (JAM) (E.D.N.Y. filed Apr.
15
25, 2024); Harding v. United States of America, 22-cv-1407 (OEM) (RER) (E.D.N.Y.
filed Mar. 14, 2022); Tonyali v. United States of America, 21-cv-6809 (DG) (MMH)
(E.D.N.Y. filed Dec. 8, 2021); Safonova v. United States of America, 15-cv-5580 (CBA)
(PK) (E.D.N.Y. filed Sep. 28, 2015); Sergutin v. United States of America, 15-cv-1147
(RJD) (SJB) (E.D.N.Y. filed Mar. 5, 2015); Wallace v. United States of America, 14-cv3660 (BMC) (E.D.N.Y. filed June 10, 2014); Korotkova v. United States of America,
12-cv-2436 (SJ) (RML) (E.D.N.Y. filed May 15, 2012); Varshavskiy v. United States of
America, 12-cv-1944 (MKB) (RLM) (E.D.N.Y. filed Apr. 20, 2012). Yet even with
extensive experience litigating FTCA claims, the Firm seems to have failed to do the
bare minimum as required by established law to present Abdalla’s claim and preserve
his right to sue for damages.
Nor is this the first time that the Law Offices of William Pager has been
specifically admonished for using “conclusory language to allege negligence by the
government and serious injury to the Plaintiff” in an FTCA case. See, e.g., Korotkova
v. United States, 990 F. Supp. 2d 324, 330 (E.D.N.Y. 2014) (SJ). In Korotkova, Judge
Johnson dismissed the Firm’s Complaint in an FTCA case involving a fall at an iceskating rink because of deficiencies that echo those in the SF-95 in Abdalla’s case:
because the Complaint included “[n]o facts . . . as to the nature or extent of the injury.”
Id. The court then went on to note that as of 2014, the Firm had at least three other
cases in this district “that have identical jurisdictional defects and similarly unpled
claims,” and put counsel “on notice that filing frivolous, vexatious, harassing, or
duplicative claims constitutes sanctionable conduct.” Id. at 331. Thus, as far back
16
as a decade ago, the Firm was on notice that, in Judge Johnson’s words, “enough is
enough” when it came to the Firm’s deficient filings on behalf of its FTCA clients. Id.
And yet the Firm appears to have continued this pattern. 5
This record raises a serious question as to whether Abdalla would have been
better off if he had no lawyer at all. Had he proceeded pro se, he at least might have
responded to the Army’s requests for more information rather than relying on his
counsel to do so (or in this case, failing to do so). “To prevail on a claim for legal
malpractice under New York law, a plaintiff must establish: (1) attorney negligence;
(2) which is the proximate cause of a loss; and (3) actual damages.” Nordwind v.
Rowland, 584 F.3d 420, 429 (2d Cir. 2009) (internal quotation marks omitted). To
satisfy the first prong of this test, “a plaintiff must prove that the attorney failed to
exercise that degree of care, skill, and diligence commonly possessed and exercised
by a member of the legal community.” Cannistra v. O’Connor, 728 N.Y.S.2d 770, 772
(N.Y. App. Div. 2001). And New York courts have found that an attorney’s failure to
diligently pursue a client’s claim, such that the client loses any right to pursue the
claim, can be considered malpractice. See, e.g., Gardner v. Sacco & Fillas, LLP, 189
N.Y.S.3d 725, 726 (N.Y. App. Div. 2023) (affirming denial of motion for summary
judgment against legal malpractice claim that alleged plaintiff’s attorneys “fail[ed] to
Indeed, in another of the Firm’s recent cases in this District, Souza Lima
Viana v. United States of America, also a claim from an alleged motor vehicle
accident, it simply pleads “severe and permanent injuries” for the plaintiff’s personal
damages, and broadly claims damages of five million dollars for these injuries — just
as in the instant case. Complaint ¶¶ 43, 48, Souza Lima Viana, 24-cv-3118 (RER)
(JAM) (E.D.N.Y. filed Apr. 25, 2024).
5
17
timely file a personal injury action on his behalf”); Prout v. Vladeck, 316 F. Supp. 784,
798 (S.D.N.Y. 2018) (JSR) (“An attorney’s negligence in allowing a statute of
limitations to run constitutes malpractice under New York law.”).
To be sure, whether the Firm committed legal malpractice, and whether
Abdalla was actually injured by any actions or inactions on the Firm’s part (since this
Court has not considered, and takes no view on, the potential merits of his underlying
tort claim against the United States), are issues that are not before this Court. The
Court would be remiss, however, if it simply dismissed Plaintiff’s entire lawsuit
without noting the considerable record evidence that his retained counsel may be
largely if not entirely responsible for that outcome — particularly since this is not the
first time that one of the Firm’s FTCA clients has been similarly penalized in this
district.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss under Federal Rule
of Civil Procedure 12(b)(1) is granted and this case is dismissed without prejudice for
lack of subject-matter jurisdiction. See Katz v. Donna Karan Company, L.L.C., 872
F.3d 114, 121 (2d Cir. 2017) (“[W]hen a case is dismissed for lack of federal subject
matter jurisdiction, Article III deprives federal courts of the power to dismiss the case
with prejudice.” (internal quotation marks and alterations omitted)).
SO ORDERED.
Dated: January 29, 2025
Brooklyn, New York
/s/Nina R. Morrison
NINA R. MORRISON
United States District Judge
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?