Marcus v. United States Postal Service et al

Filing 29

ORDER granting 14 Motion to Dismiss for Lack of Jurisdiction For the reasons discussed herein, defendants converted motion for summary judgment is granted, because plaintiffs claims are barred due to his failure to timely comply with the FTCAs presentment requirement. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/20/2015. (Mesrobian, David)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-330 (JFB)(SIL)

_____________________

STEPHEN MARCUS,
Plaintiff,
VERSUS

UNITED STATES POSTAL SERVICE, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
May 20, 2015
___________________

JOSEPH F. BIANCO, District Judge:

Rule 12(b)(1), but rather must be considered
under Rule 12(b)(6). See, e.g., Torres v.
United States, --- F. Appx. ----, No. 143880, 2015 WL 2190966, at *2 (2d Cir. May
12, 2015) (“[A]lthough the district court was
correct that the statute of limitations bars
Torres's FTCA claim, that conclusion
requires a dismissal on substantive, not
jurisdictional, grounds.”); Jackson v.
Donahoe, No. 1:15-CV-3, 2015 WL
1962939, at *1 (W.D. Mich. May 1, 2015).
In the instant case, because both sides
submitted evidence regarding this issue, the
Court (with the consent of both sides) has
converted defendants’ motion into a
summary judgment motion under Rule 56 of
the Federal Rules of Civil Procedure. For
the reasons discussed below, defendants’
motion is granted, and the case is dismissed.

On January 15, 2014, plaintiff Stephen
Marcus (“plaintiff”) filed a complaint
against the United States Postal Service
(“USPS”), the United States of America, and
Thomas Reade (“defendants”) pursuant to
the Federal Tort Claims Act (“FTCA”) for
damages resulting from injuries he allegedly
suffered in a motor vehicle accident caused
by Reade while Reade was driving a USPS
vehicle on January 21, 2012.
Defendants now move to dismiss
plaintiff’s claims under Rule 12(b)(1) for
failure to timely file an administrative claim
with the USPS as plaintiff was required to
do under the FTCA’s presentment
requirement. As a threshold matter, because
the Supreme Court recently held in United
States v. Wong, 135 S. Ct. 1625, 1638
(2015), that the FTCA’s time bar is
nonjurisdictional (and subject to equitable
tolling), this issue cannot be decided under

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I. BACKGROUND

materials in the record, including
depositions,
documents,
electronically
stored
information,
affidavits
or
declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

A. Facts
Marcus alleges that, on the morning of
January 21, 2012, he was driving near
Huntington, NY, when his car was
negligently struck by a postal van driven by
defendant Reade. (Compl. ¶ 20.) Plaintiff
alleges that Reade was operating the postal
van on behalf of the USPS as part of his
employment duties. (Id. ¶¶ 15-16.) Plaintiff
alleges that because of the negligence of
defendants, he suffered serious personal
injuries requiring extensive medical care and
ongoing treatment. (Id. ¶¶ 26-27.)
B. Procedural History
Plaintiff commenced this action on
January 15, 2014. Defendants moved to
dismiss on January 16, 2015. Plaintiff filed
his opposition to the motion on March 12,
2015, and defendants filed their reply on
May 12, 2015. The Court heard oral
argument on the motion on May 18, 2015.
The Court has fully considered the
submissions of the parties.

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247–48 (emphasis in

II. STANDARD OF REVIEW
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “the
movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Gonzalez v. City
of Schenectady, 728 F.3d 149, 154 (2d Cir.
2013). The moving party bears the burden of
showing that he is entitled to summary
judgment. See Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2005). “A party
asserting that a fact cannot be or is
genuinely disputed must support the
assertion by: (A) citing to particular parts of

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original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.
1996) (quoting Research Automation Corp.,
585 F.2d at 33).

injury or loss of property, or personal
injury or death caused by the
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 in
accordance with the law of the place
where the act or omission occurred.
28 U.S.C. § 1346(b)(1). By enacting the
FTCA, Congress waived the United States’
sovereign immunity for claims arising out of
torts committed by federal employees. See
id. “The waiver of sovereign immunity
under the FTCA, 28 U.S.C. § 1346(b), is
strictly limited to suits predicated upon a tort
cause of action cognizable under state law
and brought in accordance with the
provisions of the FTCA,” Finelli v. Drug
Enforcement Agency, No. 92 Civ. 3463
(PKL), 1993 WL 51105, at *5 (S.D.N.Y.
Feb. 24, 1993), and this constitutes the
exclusive remedy for torts committed by
federal employees in the course of their
duties. See, e.g., James v. United States, No.
99 Civ. 4238 (BSJ), 2000 WL 1132035, at
*1 (S.D.N.Y. Aug. 8, 2000); see also
Olmeda v. Babbits, No. 07 Civ. 2140
(NRB), 2008 WL 282122, at *5 (S.D.N.Y.
Jan. 25, 2008); Finelli, 1993 WL 51105, at
*1 (“While this provision does not apply to
suits for violation of federal constitutional or
statutory rights, it is well settled that it does
provide Government employees with
absolute immunity against claims of
common-law tort.” (citing Rivera v. United
States, 928 F.2d 592, 608 (2d Cir. 1991)).
Thus, to the extent that plaintiff alleges that
the United States, or any agency thereof,
committed common law torts against
plaintiff, any such claim is governed by the
FTCA.

III. DISCUSSION
Defendants argue that plaintiff’s claims
should be dismissed because plaintiff did not
file an administrative claim with the USPS
regarding his personal injuries within two
years of the incident, and therefore failed to
present his administrative claim as required
by the FTCA. Having converted the motion
to a summary judgment motion, the Court
agrees and dismisses plaintiff’s complaint.1
The FTCA provides, in relevant part:
Subject to the provisions of chapter
171 of this title [28 U.S.C. §§ 2671
et seq.], the district courts . . . shall
have exclusive jurisdiction of civil
actions on claims against the United
States, for money damages, accruing
on and after January 1, 1945, for
1

Defendants also argue that, as a threshold matter,
the USPS and defendant Reade are not proper
defendants under the FTCA. The Court agrees. Any
tort claim against the USPS, an agency of the federal
government, or Reade, a federal employee, can only
be maintained against the United States under the
FTCA. See 28 U.S.C. § 2679(a). However, the
claims against the United States must be dismissed
for the reason discussed infra.

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The Supreme Court has clearly stated
that the FTCA “provides that a tort claim
against the United States ‘shall be forever
barred’ unless it is presented to the
‘appropriate Federal agency within two
years after such claim accrues’ and then
brought to federal court ‘within six months’
after the agency acts on the claim.” Wong,
135 S. Ct. at 1629 (quoting 28 U.S.C. §
2401(b)); see also 28 U.S.C. § 2675(a).
“The administrative exhaustion requirement
derives from a cardinal principle of law –
that the United States, as sovereign, is
immune from suits in the courts of law.”
Mosseri v. F.D.I.C., Nos. 95 Civ. 723 (BJS),
97 Civ. 969 (BSJ), 1999 WL 694289, at *7
(S.D.N.Y. Sept. 8, 1999). Failure to comply
with this requirement results in dismissal of
the suit. See McNeil v. United States, 508
U.S. 106, 113 (1993) (“The FTCA bars
claimants from bringing suits in federal
court until they have exhausted their
administrative remedies. Because petitioner
has failed to heed that clear statutory
command, the District Court properly
dismissed his suit.”); see also Celestine v.
Mount Vernon Neighborhood Health Ctr.,
403 F.3d 76, 82 (2d Cir. 2005) (“The FTCA
requires that a claimant exhaust all
administrative remedies before filing a
complaint in district court.”); Adams by
Adams v. United States Dep’t of Housing
and Urban Dev., 807 F.2d 318, 319-20 (2d
Cir. 1986); Willis v. United States, 719 F.2d
608 (2d Cir. 1983); Keene Corp. v. United
States, 700 F.2d 836, 841 (2d Cir. 1983);
Rawlins v. M&T Mortgage Corps., No. 05
Civ. 2572 (RCC), 2005 WL 2143334, at *4
(S.D.N.Y. Sept. 1, 2005); Harrison v.
Lutheran Med. Ctr., No. 05 Civ. 2059
(CBA), 2005 WL 1801626, at *2-3
(E.D.N.Y. July 27, 2005); Liebers v. St.
Albans Med. Ctr., No. 99 Civ. 6534 (JG),
2000 WL 235717, at *1 (E.D.N.Y. Feb. 25,
2000); Solomon v. United States, 566 F.
Supp. 1033, 1035 (E.D.N.Y. 1982).

Additionally, the Supreme Court recently
held that the FTCA’s time bars “are
nonjurisdictional and subject to equitable
tolling.” Wong, 135 S. Ct. at 1638 (2015). A
party therefore may avoid having a suit
barred under the exhaustion requirement of
the FTCA for failing to file a timely
administrative claim if he “‘pursued his
rights diligently but some extraordinary
circumstance’ prevents him from meeting a
deadline.” Id. at 1631 (quoting Lozano v.
Montoya Alvarez, 134 S. Ct. 1224, 1231-32
(2014)).
In the instant case, plaintiff failed to
present his administrative claim to the
USPS, as required by the FTCA. Plaintiff
originally alleged that counsel sent USPS
correspondence about his personal injury
claim on several occasions, including a
comprehensive package containing a
completed claim form and supporting
documents on October 26, 2012. (Toomey
Aff., ECF No. 18-5, ¶ 3.) Defendants
denied having received any such
correspondence, however, and their reply
declaration attached letters sent by
plaintiff’s counsel to the USPS which
demonstrated, in contradiction to plaintiff’s
allegations, that plaintiff’s counsel as of
January 14, 2014, had not complied with the
presentment requirement. (Cabrera Decl.,
ECF No. 26.) Based upon the additional
documentation filed by the government in its
reply, counsel for plaintiff conceded at oral
argument that the allegations made in the
complaint and opposition papers were
mistaken, and that plaintiff apparently did
not timely file an administrative claim with
the USPS or any federal agency. Plaintiff’s
counsel also conceded that there was no
factual basis for equitable tolling under these
circumstances.
In short, given the evidence submitted
by defendants (and the absence of evidence
to contradict it), it is clear that plaintiff did
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not file an administrative claim with the
USPS and that this case must be dismissed.
IV. CONCLUSION
Defendants’ converted motion for
summary judgment is granted, because
plaintiff’s claims are barred due to his
failure to timely comply with the FTCA’s
presentment requirement. The Clerk of the
Court shall enter judgment accordingly and
close this case.
SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: May 20, 2015
Central Islip, NY
*

*

*

Plaintiff is represented by Timothy
Kelly, Suris & Associates, 999 Walt
Whitman Road, Suite 201, Melville, NY
11747. Defendants are represented by
Robert Kambic, U.S. Attorney’s Office for
the Eastern District of New York, 610
Federal Plaza, Central Islip, NY 11722.

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