DIAZ et al v. UNITED STATES OF AMERICA et al
MEMORANDUM OPINION. SIGNED BY HONORABLE JOHN M. GALLAGHER ON 7/16/21. 7/16/21 ENTERED AND COPIES E-MAILED.(er, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SU-LIN DIAZ, et al.,
UNITED STATES OF AMERICA, et al.,
Civil No. 5:20-cv-6305-JMG
July 16, 2021
Plaintiff Su-Lin Diaz filed suit in this matter pursuant to the Federal Tort Claims Act
(“FTCA”) alleging that she was struck by a vehicle driven by a negligent federal employee while
she was walking across an intersection in downtown Philadelphia. Presently before the Court is the
Government’s Rule 12(b)(1) Motion to Dismiss, which asserts that Ms. Diaz did not present a claim
for money damages in a sum certain, thereby failing to exhaust her administrative remedies before
filing suit. As a result, the United States argues that this Court lacks subject-matter jurisdiction
over Plaintiff’s claims. For the reasons set forth below, the Court finds that Plaintiff did not
exhaust her administrative remedies under the FTCA, and that dismissal for lack of subject-matter
jurisdiction is appropriate. Accordingly, Defendant’s Motion is granted, and the Complaint is
dismissed with prejudice.
Plaintiff alleges that on January 14, 2019, FBI Special Agent Adrian Andresi negligently
turned his car into a pedestrian crosswalk while Plaintiff was crossing the street and struck Plaintiff
with his vehicle. See Compl. ¶¶ 8-11, 15-17. As a result of this accident, Plaintiff contends that she
sustained numerous injuries, lost wages, and unpaid medical bills. Id. ¶¶ 24-32. On January 15,
2019, the FBI sent Ms. Diaz a Standard Form 95 (“SF-95”) and asked her to report any injuries that
she may have suffered during the incident, attach all supporting documentation, and return the Form
to the FBI. See Def. Mot. 2, ECF No. 6. The SF-95 Form included instructions directing claimants
to provide “an executed Standard Form 95 or other written notification of an incident, accompanied
by a claim for money damages, in a sum certain for injury to or loss of property.” Id. at 3. The FBI
received a response from Ms. Diaz’s attorney on January 24, 2019. Id. at 2. However, while the
letter detailed some of the damages Ms. Diaz allegedly sustained, it did not include a completed SF95 or state the total amount of damages sought. Id. That same day, the FBI sent a second blank SF95 to Ms. Diaz’s attorney and again requested that Ms. Diaz complete the Form. Id. at 3.
Upon receipt of Ms. Diaz’s completed SF-95 on March 21, 2019, the FBI advised Ms.
Diaz’s attorney that it was still awaiting receipt of all documentation supporting her personal injury
and economic loss claims. Id. at 4. Additionally, under the “Personal Injury” section of the Form,
Ms. Diaz wrote “$500,000 until further info[rmation] available.” Id., Ex. D at 3. The FBI received
no further communication or documents from Ms. Diaz or her attorney in connection with her
claims. Id. at 4. Plaintiff thereafter filed a Complaint with this Court alleging that the United States
negligently entrusted Agent Andresi with a motor vehicle on the day of the accident. See Compl.
The Government seeks dismissal of Plaintiff's suit under Federal Rule of Civil Procedure 12(b)(1),
arguing that Plaintiff failed to exhaust her administrative remedies because she did not complete the
SF-95 and specify a claim for money damages in a sum certain in accordance with the FTCA. Id.
Plaintiff counters that they complied with their obligations under the FTCA because the United
States failed to raise their assertion when it received and responded to Plaintiff's completed SF-95.
See Pl. Resp. 3-6, ECF No. 7.
Plaintiffs Su-Lin Diaz and her spouse, Luis Corredor, filed a Complaint against the United
States, FBI Special Agent Adrian Andresi, and Angela Amato, the owner of the vehicle driven by
Special Agent Andresi, on December 15, 2020. See ECF No.1. On February 10, 2021, the parties
stipulated to dismiss the claims against Defendants Amato and Andresi. See ECF No. 5. The
Parties further stipulated to dismissal of Plaintiff Corredor’s claim for loss of consortium (Count
IV). Id. The remaining count (Count I), Ms. Diaz’s claim for negligence against the United States,
is the subject of the present Motion, which the United States filed on March 15, 2021. See ECF No.
6. On March 26, 2021, Plaintiff filed a Response in Opposition to Defendant’s Motion. See ECF
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss the
complaint by alleging that the court lacks subject-matter jurisdiction over the plaintiff's claims.
Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). There are two types of 12(b)(1)
motions: those that attack the complaint on its face and those that attack the existence of subject
matter jurisdiction in fact. Mortensen v. First Federal Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d
Cir. 1977). Facial attacks “assume that the allegations of the complaint are true, but contend that
the pleadings fail to present an action within the court’s jurisdiction.” Wheeler v. Corrections
Emergency Response Team, No. 18-3813, 2019 WL 2715636, at *3 (E.D. Pa. June 28, 2019) (citing
Mortensen, 549 F.2d at 891). Factual attacks, on the other hand, contend that even if the pleadings
establish subject-matter jurisdiction on their face, the factual allegations within the complaint are
untrue, thus rendering the case outside of the court’s jurisdiction. Mortensen, 549 F.2d at 891.
A 12(b)(1) motion predicated on the contention that the plaintiff has failed to exhaust their
administrative remedies prior to filing suit is a factual attack because it challenges the existence of
jurisdiction itself. Medina v. City of Philadelphia, No. 04-5698, 2005 WL 1124178, at *2 (E.D. Pa.
May 9, 2005). Ultimately, the plaintiff bears “the burden of proof that jurisdiction does in fact
exist” when faced with a 12(b)(1) motion to dismiss. Mortensen, 549 F.2d at 891. If the plaintiff is
unable to establish the existence of subject-matter jurisdiction over their claims, the court is without
power to hear those claims and must dismiss the case. Id. In considering the motion, the Court
may evaluate documents outside of the pleadings that are “integral to or explicitly relied upon in the
complaint.” Savage v. Temple Univ., No. 19-6026, 2020 WL 3469039, at *2 (E.D. Pa. June 25,
The United States is immune from civil causes of action unless it explicitly consents to be
sued. White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). Accordingly, when the
United States is named as a defendant in a civil lawsuit, the court must first determine that it has
jurisdiction to hear the case by confirming that the Government has waived its sovereign immunity.
Id. The FTCA operates as a limited waiver sovereign immunity for tort claims against the United
States and provides the exclusive remedy for “nonconstitutional torts based on the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of his
office or employment.” Couden v. Duffe, 446 F.3d 483, 498 (3d Cir. 2006) (citing 28 U.S.C. §
2679(b)(1)). Under the FTCA, a tort claimant must first exhaust their administrative remedies prior
to filing suit against the United States. See 28 U.S.C. § 2675(a); see also McNeil v. United States,
508 U.S. 106, 113 (1993).
Claimants may not institute an FTCA action “for any sum in excess of the amount of the claim
presented to the federal agency.” 28 U.S.C. § 2675(b). This provision anticipates that FTCA
claimants will seek recovery for a definite amount. White-Squire, 592 F.3d at 457. Therefore, in order
to exhaust their administrative remedies, a plaintiff must submit to the appropriate agency an executed
SF-95, or other written notification of the incident, with a claim for money damages in a sum certain
within two years of the date that the claim accrues. Id. Prior to filing suit, the agency must also have
issued a final written denial of the claim. 28 U.S.C. § 2675(a). These requirements are jurisdictional
and thus cannot be waived. White-Squire, 592 F.3d at 457. Likewise, given their jurisdictional nature,
these provisions must be strictly construed. Id. Failure to exhaust the FTCA’s administrative
remedies within the statutory timeframe “deprives a claimant of federal court jurisdiction over his or
her claim.” Tucker v. United States Postal Serv., 676 F.2d 954, 959 (3d Cir. 1982).
Courts in this District have generally held that claims lacking a minimum and maximum
amount of claimed damages are too imprecise to constitute a sum certain. See, e.g., London v. United
States, No. 19-71, 2019 WL 2121053, at *4 (E.D. Pa. May 15, 2019) (finding claim for damages “in
an amount not in excess of $50,000” was insufficient to satisfy the sum certain requirement); Farr v.
United States, 580 F. Supp. 1194, 1196 (E.D. Pa. 1984) (dismissing complaint where plaintiff
submitted an administrative claim for “less than $50,000” because the claim was too ambiguous).
“Supplying an inexact or ambiguous amount of money damages” conflicts with the statutory
requirement that FTCA claimants seek recovery for a definite amount. See London, 2019 WL
2121053, at *3 n.3 (citing White-Squire, 592 F.3d at 457). This requirement remains in force even if
a plaintiff anticipates that they may continue to accrue damages through ongoing medical care or lost
wages after they submit their claim. White-Squire, 592 F.3d at 458. Even if damages may not be
fully ascertainable early in the two-year statutory window, claimants have the flexibility within this
period to amend their claim as evidence develops. See 28 C.F.R. § 14.2(c) (claim presented in
compliance with 28 C.F.R. § 14.2(a) “may be amended by the claimant at any time prior to final
agency action or prior to the exercise of the claimant’s option under 28 U.S.C. 2675(a)”).
Alternatively, the plaintiff may ask their treating physician to estimate what further treatment she may
require, in addition to the cost of such treatment, and include that cost within her administrative
claim. White-Squire, 592 F.3d at 459.
The Court finds that Ms. Diaz failed to submit a claim for a sum certain within the time
allotted under the FTCA. Instructions on the SF- 95 completed by Ms. Diaz required her to include
“a claim for money damages in a sum certain for injury to or loss of property, personal injury, or
death alleged to have occurred by reason of the incident.” See Def. Mot., Ex. A at 3. The Form also
cautioned that “[f]ailure to specify a sum certain will render your claim invalid and may result in
forfeiture of your rights.” Id. Despite these explicit instructions, Ms. Diaz did not provide the FBI
with a sum certain claim. In her SF-95, Ms. Diaz asserted a claim for personal injury damages of
“$500,000 until further info[rmation] available” and total damages of “$500,000 until further
info[rmation] available.” Id. at 2. As a result, Plaintiff’s claim, which lacks the requisite supporting
documents, was subject to the express caveat that it was not a sum certain, but instead would be
adjusted, potentially up or down, when unspecified further information became available. See WhiteSquire, 592 F.3d at 459-60. However, the purpose of the administrative exhaustion requirement is
not to put the Government on notice of a forthcoming claim, but to enable the appropriate agency to
investigate and render a decision regarding its merits. Flickinger v. U.S., 523 F. Supp. 1372, 1377
(W.D. Pa. 1981).
The sum certain requirement is “central to [the] policy of presentment of claims to the
appropriate federal agency because it enables the agency head to determine whether the claim can
legally be settled by the agency.” White-Squire, 592 F.3d at 459. The inability of an agency to
ascertain the claim’s value frustrates this objective. Id. In the instant case, Plaintiff did not provide
the FBI with a certain, fixed number or any supporting documentation. Accordingly, the FBI did not,
and could not, issue a final written denial of her claim. Ms. Diaz therefore not only failed to present
claim for a sum certain, but she filed suit prior to any final disposition of her administrative claim, as
required under 28 U.S.C. § 2675(a). 1
While Ms. Diaz may argue that she did not know the full extent of her damages two months
after the accident, such contingencies do not excuse the sum certain requirement or spare her claim
from dismissal. In the twenty-one months between submitting her SF-95 and filing suit, Ms. Diaz
never amended her claim to reflect any actual losses that she may have incurred. Additionally, Ms.
Diaz never complied with the instruction that she submit medical records or other documentation to
the Government to substantiate, itemize, or aid in calculating her claimed losses. Ms. Diaz also did
not respond to the FBI’s letters expressly requesting this information. Instead, Ms. Diaz left the
The statute provides that “[t]he 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 for the purposes of
this section.” 28 U.S.C. § 2675(a). Plaintiff filed her SF-95 with the FBI on March 21, 2019 and filed the Complaint
in this matter on December 15, 2020. According to Plaintiff, the failure of the FBI to render a final disposition of her
case within six months constituted a final denial for the purposes of § 2675(a). See Compl. ¶ 20. However, allowing
Plaintiff to proceed in this manner would frustrate the central policy underlying the FTCA’s administrative exhaustion
requirement. By submitting to the FBI an uncertain claim without supporting documentation, and ignoring their
subsequent attempts to clarify her position, the FBI was not able to investigate and issue a decision, thereby leaving her
claims unexhausted. See London, 2019 WL 2121053, at *3 (citing White-Squire, 502 F.3d at 457). Accepting
Plaintiff’s argument would, in essence, allow a claimant to circumvent the second prong of the exhaustion requirement
by failing to satisfy the first. Given that the “conditions upon which the Government consents to be sued must be
strictly observed,” the Court cannot sanction such a permissive interpretation of the FTCA. See White-Squire, 592 F.3d
at 458 (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)).
FBI unable to investigate the extent of her injuries, evaluate her claim, or analyze any damages
amount, much less determine whether settlement was appropriate. See White-Squire, 592 F.3d at
459 (describing purposes of sum certain claim requirement). Ms. Diaz’s wholly uncertain claim
was thus insufficient to satisfy this jurisdictional requirements of the FTCA.
Since Ms. Diaz failed to exhaust her administrative remedies, this Court lacks jurisdiction
over her claims. See id. at 460; Bruno v. United States Postal Serv., 264 F. App’x 248, 248-49 (3d
Cir. 2008) (affirming dismissal of FTCA complaint where plaintiff failed to satisfy sum certain
requirement by stating either a specific sum or information from which a specific amount could be
computed). Ms. Diaz is also now beyond the two-year statutory period within which she was
required to satisfy this obligation. See 28 U.S.C. § 2401(b) (“A tort claim against the United States
shall be forever barred unless it is presented in writing to the appropriate Federal agency within two
years after such claim accrues.”). Although dismissal of her claims undoubtedly works a hardship
upon Ms. Diaz, “the courts ‘are not free to enlarge that consent to be sued which the Government,
through Congress, has undertaken so carefully to limit.’” 2 Medina, 2005 WL 1124178, at *4
(quoting Flickinger, 523 F. Supp. at 1377). Ms. Diaz’s claims are therefore dismissed with
prejudice, as she is unable to cure this defect. Phillips v. County of Allegheny, 515 F.3d 224, 245
(3d Cir. 2008) (the court should “permit curative amendment unless such an amendment would be
inequitable for futile”).
Plaintiff failed to submit an administrative claim for money damages in a sum certain prior to
filing suit in this matter. As a result, this Court lacks subject matter jurisdiction over the claims in
A court may find it more desirable to seek an equitable exception to the harsh outcomes sometimes associated with
strict adherence to the requirements of administrative exhaustion. Flickinger, 523 F. Supp. 1372 at 1376-77. However,
courts must apply the law as written to the facts they are given. It is the province of Congress, not the courts, to
consider how these results may be avoided. See id.
this case because Plaintiff has not exhausted her administrative remedies under the FTCA. The
two-year period in which to do so has since expired, leaving Plaintiff unable to cure this deficiency.
Therefore, Defendant’s Motion to Dismiss is granted and the Complaint is dismissed with
prejudice. An appropriate Order follows.
BY THE COURT:
/s/ John M. Gallagher
JOHN M. GALLAGHER
United States District Court Judge
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