GARCIA et al

Filing 22

OPINION AND ORDER dismissing with prejudice Plaintiffs' claims as time barred. Signed by Judge Salvador E Casellas on 11/5/2010.(PR)

Garcia et al, v. United States of America

Doc. 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. R o s a Garcia, et al., Plaintiffs

I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

C iv il No. 09-1674 (SEC)

U n ite d States of America Defendant. OPINION AND ORDER B e f o re the Court are a motion to dismiss filed by Defendant the United States of America (D o c k e t # 15) and Plaintiffs' opposition thereto. Docket # 21. Plaintiffs are the widow and sons o f the late Ramon R. Roca-Gomez who passed away victim of cancer. Dockets #1, ¶¶ 2 and 7 . Plaintiffs filed suit under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et. sec, f o r negligent medical treatment Roca-Gomez allegedly received at the San Juan Veterans A f f a irs ' Hospital (the "VA"). Defendant moves to dismiss Plaintiffs' claims as time barred, a rg u in g that Plaintiffs filed the prerequisite administrative claims 22 days after the expiration o f the FTCA's statute of limitation. Docket # 15, p. 1-3. Plaintiffs oppose dismissal, stating that t h e y mailed their administrative claims to the VA 12 days before the applicable deadline. D o c k e t # 21, ¶¶ 2-4. F o r purposes of the FTCA statute of limitation, the critical date is when claims are re c e iv e d by an administrative agency, and not the date in which the claims are mailed. 28 C.F.R. § 14.2 (a) ("For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall b e deemed to have been presented when ... receive[d] from a claimant...."). Plaintiffs do not d isp u te that the VA received their administrative claims after the statutory period expired, and th e evidence of record clearly shows that such was the case. See Dockets ## 21 - 21-6. A c c o rd in g ly, the Court finds that Plaintiffs' claims are time barred and, as a result, dismisses

Dockets.Justia.com

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CIVIL NO. 09-1674 (SEC)

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th e m for lack of subject matter jurisdiction. See Gonzalez v. U.S., 284 F.3d 281, 288 (1st Cir. 3 2 0 0 2 ) ("[I]t is well-settled that an FTCA claim must be dismissed if a plaintiff fails to file a 4 tim e ly administrative claim. This Court has repeatedly held that compliance with this statutory 5 re q u ire m e n t is a jurisdictional prerequisite to suit that cannot be waived.") (internal citations 6 o m itte d ). 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Conclusion Based on the foregoing, Plaintiffs' claims are DISMISSED with prejudice. IT IS SO ORDER. In San Juan, Puerto Rico, this 5th of November 2010. s/S a lv a d o r E. Casellas SALVADOR E. CASELLAS U.S. Senior District Judge