Lay et al v. United States of America
Filing
12
MEMORANDUM AND ORDER granting 6 Motion to Dismiss. IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (Doc. 6) is GRANTED. The Clerk of Courts is directed to mark the case as CLOSED. Signed by Honorable A. Richard Caputo on 5/2/11 (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONALD LAY and CAROL LAY,
Plaintiffs,
CIVIL ACTION NO. 3:10-CV-2623
(JUDGE CAPUTO)
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM
Presently before the Court is Defendant United States of America’s motion to
dismiss. (Doc. 6.) Defendant claims that Plaintiffs’ complaint should be dismissed either for
lack of subject-matter jurisdiction or for failure to state a claim because Plaintiffs failed to
follow the procedures of the Federal Tort Claims Act, specifically, providing a ‘sum certain’
as to damages sought within the applicable two-year limitations period. The Court agrees,
and the complaint will be dismissed.
BACKGROUND
The facts alleged in the complaint are as follows.
Plaintiffs are Pennsylvania citizens. At all times relevant to this action, Defendant
acted by and through the Transportation Security Administration (“TSA”), a federal agency
organized, existing, and operating under and pursuant to the laws of Defendant United
States of America. On June 22, 2007, Plaintiff Ronald Lay was checking his baggage at
the check-in counter at the Arkansas Regional Airport in Bentonville, Arkansas. After
checking-in his baggage, Plaintiff fell over a baggage cart owned by Defendant. The cart
had “no straps across the same and was the same color as the floor.” Plaintiff was taken
to the Emergency room of a local hospital, and, after an x-ray was taken, was told he had
fractured his hip and would need surgery.
Plaintiffs’ lawyer, Ronald Bumpass, submitted a claim to the U.S. Department of
Homeland Security\TSA on September 24, 2007. The letter outlined the incident and Mr.
Lay’s injuries, stated that Mr. Lay had hip surgery on June 23, 2007, and further stated that,
“Mr. Lay’s Medical bills are already over $27,000.00, not to mention the money put out for
hotels, meals, shuttles, airfare and prescription.” Mr. Bumpass then submitted a second
letter on December 16, 2009, claiming one-hundred thousand dollars ($100,000.00) as
medical bills, out of pocket expenses, pain and suffering, and loss of enjoyment. On
February 4, 2010, the TSA sent Mr. Bumpass a letter denying Plaintiff’s claim. After a
Request for Reconsideration of Denial of Claim was submitted, the TSA on September 14,
2010 sent Mr. Bumpass a final denial letter. Plaintiffs then filed this complaint on December
23, 2010, bringing claims for negligence (Count I) and loss of consortium (Count II).
Defendant then filed a motion to dismiss on March 18, 2011. The motion has been fully
briefed and is ripe for review.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal
is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has
not pleaded “enough facts to state a claim to relief that is plausible on its face,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations “‘to raise
a reasonable expectation that discovery will reveal evidence of’” each necessary element,
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550
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U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a
complaint to set forth information from which each element of a claim may be inferred). In
light of Federal Rule of Civil Procedure 8(a)(2), the statement need only “‘give the defendant
fair notice of what the ... claim is and the grounds upon which it rests.’” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). “[T]he factual
detail in a complaint [must not be] so undeveloped that it does not provide a defendant
[with] the type of notice of claim which is contemplated by Rule 8.” Phillips, 515 F.3d at 232;
see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir.
2007).
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The
Court may also consider “undisputedly authentic” documents when the plaintiff’s claims are
based on the documents and the defendant has attached copies of the documents to the
motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were
not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
263 & n.13 (3d Cir. 1998), or credit a complaint’s “‘bald assertions’” or “‘legal conclusions,’”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
When considering a Rule 12(b)(6) motion, the Court’s role is limited to determining
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if a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately
prevail. See id. A defendant bears the burden of establishing that a plaintiff’s complaint
fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
DISCUSSION
I.
Plaintiff Ronald Lay’s Negligence Claim
Plaintiffs’ negligence claim will be dismissed for failing to meet the jurisdictional
prerequisites for bringing a suit against the United States in federal court.
As a sovereign, the United States is immune from suit unless it consents to be sued.
United States v. Mitchell, 445 U.S. 535, 538 (1980). The Federal Torts Claim Act (“FTCA”)
operates as a limited waiver of the United States's sovereign immunity. See Roma v. United
States, 344 F.3d 352, 362 (3d Cir.2003). “Because the Federal Tort Claims Act constitutes
a waiver of sovereign immunity, the Act's established procedures have been strictly
construed.” Livera v. First Nat'l State Bank of N.J., 879 F.2d 1186, 1194 (3d Cir.1989). The
FTCA is codified at various sections throughout Title 28 of the United States Code.
Subsection 1346(b)(1) provides:
Subject to the provisions of chapter 171 of this title, the district courts ... shall
have exclusive jurisdiction of civil actions on claims against the United States, for
money damages, ... for 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). Section 2675 mandates that an FTCA action “shall not be instituted
upon a claim against the United States for money damages ... unless the claimant shall
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have first presented the claim to the appropriate Federal agency....” 28 U.S.C. § 2675(a).
Subsection (b) further specifies that an FTCA action “shall not be instituted for any sum in
excess of the amount of the claim presented to the federal agency....” Id. § 2675(b)
(emphasis added). Further, under 28 U.S.C. § 2401(b), the claim must be presented to the
appropriate agency within two years after it accrues. Finally, the Third Circuit has recently
held that, “[b]ecause the requirements of presentation and a demand for a sum certain are
among the terms defining the United States's consent to be sued, they are jurisdictional.”
White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457 (3d Cir. 2010).
In White-Squire, plaintiff had sought damages after her car was struck by a United
States Postal Service (“USPS”) vehicle. Her attorney sent the USPS notice of a personal
injury claim, but did not include a sum certain for damages. After being advised of the sum
certain requirement by the USPS, plaintiff’s attorney informed them that he would be
submitting the sum certain claim once plaintiff was discharged from medical care, but it was
never submitted. After plaintiff’s complaint was brought, the district court dismissed the
action for lack of subject-matter jurisdiction because plaintiff failed to provide the USPS with
a sum certain request for damages. On appeal, plaintiff claimed that she was not required
to submit a sum certain request because her medical treatment was ongoing. In affirming
the district court, the Third Circuit chose not to allow for an exception to the sum certain
requirement based on plaintiff’s ongoing medical treatment, finding that such an exception
“would constitute a judicial expansion of the waiver of sovereign immunity embodied in the
FTCA, something which only Congress can effectuate.” White-Squire, 592 F. 3d at 458
(internal citation omitted). As a result, the Third Circuit held, “a claimant's failure to present
her FTCA claim to the appropriate agency with a sum certain, as required by § 2675(b),
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compels the conclusion that a district court lacks subject matter jurisdiction over the claim.”
Id.
The Third Circuit’s ruling in White-Squire adheres to the logic of its holding in a
factually similar case, Bialowas v. U.S., 443 F.2d 1047 (3d Cir. 1971). In that case,
plaintiff’s car was also struck by a mail truck. After the accident, plaintiff received a
standard claim form. The form, under the section, ‘amount of claim’, contained three boxes:
one for property damage dollar claim, one for personal injury dollar claim, and one for total
dollar claim.
In the property damage box, plaintiff wrote the word ‘estimates’ followed by
two numerical figures. In the personal injury box, plaintiff wrote ‘neck, chest, and right arm’,
and in the box for the total dollar claim, plaintiff wrote ‘price of x-rays $35.00'. Plaintiff did
not specify the amount of the claim but did attach two automobile estimates and his x-ray
bill. After the district court dismissed the complaint for plaintiff’s failure to file a proper
administrative claim prior to instituting suit, plaintiff appealed. Affirming the district court,
the Third Circuit found that plaintiff’s claim form was neither dated nor signed, and that “[n]o
specific sum was set forth in the claim, nor was there any information supplied from which
a specific amount could be computed.” Bialowas, 443 F.2d at 1049. In making its ruling,
the Third Circuit stressed that the sum certain rule enabled the head of the federal agency
in question to determine whether the claim fell within the jurisdictional limits he was
authorized to process, and insured uniform procedures in the exercise of settlement
authority. Id. at 1050. Furthermore, and significant for the instant suit, the court found no
merit in plaintiff’s contention that “exceptional circumstances” existed that excused his
failure to exhaust his administrative remedies. Id. at 1050.
Finally, while in Apollo v. U.S., the district court found that plaintiff’s amended
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damages claim properly “related back” and provided an adequate sum certain, the facts of
that case are dissimilar from those presented here. 451 F. Supp. 137, 140 (M.D. Pa. 1978).
In that case, plaintiff’s husband committed suicide on weekend furlough from the VA
hospital. Plaintiff’s attorney submitted a claim for damages “in excess” of ten-thousand
dollars ($10,000) exactly two years after the incident. After being informed by counsel for
the Veteran’s Administration that the claim was defective in that it was not for a definite
amount, approximately ten weeks later plaintiff submitted a corrected claim that requested
two-hundred and fifty-thousand dollars ($250,000.00) for personal injuries and the distress
and anguish of plaintiff. The court found that while the first claim was defective in failing
to provide a sum certain, it had been filed within the two-year limitations period and the
revised claim, having been promptly filed after plaintiff was alerted to the defect in the
original claim, cured the defect and satisfied the jurisdictional requirement. 451 F. Supp. at
139.
Here, the facts present something of a hybrid of the circumstances found in the
relevant case law and dictate that the Court dismiss Plaintiffs’ case. While Plaintiffs’ lawyer
did submit a damages figure in the September 2007 letter, the letter stated that, “Mr. Lay’s
Medical bills are already over $27,000, not to mention the money put out for hotels, meals,
shuttles, airfare and prescription.” This language indicates, at best, a floor to Mr. Lay’s
damages and is analogous to the “estimate” wording which was found wanting in Bialowas
and the “in excess” phrasing found defective in Apollo. Even if Planitiffs’ lawyer was waiting
for final medical costs to be tallied before submitting a definitive sum certain, that does not
excuse his failure to file such a statement within the two-year limitations period. Further,
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while in Apollo, plaintiff’s subsequent claim was found to have cured the prior, defective
one, the revised claim was filed ten weeks after plaintiff was notified of defect, while here,
Plaintiffs, after being alerted to the problems with the claim, waited over two years to file
a claim that contained a definitive sum certain. Plaintiffs argue that the second filing should
be seen as amending the first – which was filed within the limitations period – and therefore
sufficient to satisfy the jurisdictional requirement. However, they fail to make a convincing
case under the controlling Third Circuit precedent. As a result, following well-established
Third Circuit precedent, Plaintiffs’ negligence claim will be dismissed for failing to provide
a definite sum certain within the two-years limitations period.
II.
Plaintiff Carol Lay’s Claim for Loss of Consortium
Plaintiff Carol Lay’s claim for loss of consortium will also be dismissed. Loss of
consortium claims are derivative from claims of an injured spouse, but still need to be filed
separately with the agency. McDevitt v. United States Postal Service, 963 F. Supp. 482
(E.D. Pa. 1997). Mrs. Lay never filed such a claim with the TSA, and is therefore barred
under the limitations period from now asserting this cause of action.
CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss (Doc. 6) will be granted.
An appropriate order follows.
5/2/11
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONALD LAY and CAROL LAY,
CIVIL ACTION NO. 3:10-CV-2623
Plaintiffs,
(JUDGE CAPUTO)
UNITED STATES OF AMERICA,
Defendant.
ORDER
NOW, this
2nd
day of May, 2011, IT IS HEREBY ORDERED that
Defendant’s Motion to Dismiss (Doc. 6) is GRANTED. The Clerk of Courts is directed
to mark the case as CLOSED.
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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