Emeric et al v. United States of America et al

Filing 31

OPINION AND ORDER. We DENY the United States' motion to dismiss (Docket No. 17 ) and GRANT IN PART Plaintiffs' motion for partial summary judgment and for a trial date on damages (Docket No. 11 ). We find the United States liable to Plain tiffs and ORDER a trial on damages beginning September 13, 2010, at 9:00 A.M. We also GRANT Plaintiffs' unopposed motion for fact and expert discovery deadlines (Docket No. 30 ), and set them as follows: Fact discovery is due June 15, 2010; th e United States' expert report is due July 15, 2010; and expert discovery shall close on August 15, 2010. Fact Discovery due by 6/15/2010. USA Expert Report due by 7/15/2010. Expert Discovery Deadline 8/15/2010. Jury Trial set for 9/13/2010 09:00 AM in Courtroom 7 before Chief Judge Jose A Fuste. Signed by Chief Judge Jose A Fuste on 5/5/2010.(mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO E L M E R EMERIC, BETSY LAGARES, their co n jug al partnership, and their minor daughter A S H L E Y EMERIC, C i v il No. 09-1806 (JAF) Plaintiffs, v. U N IT E D STATES OF AMERICA, JOHN D O E , and JIM DOE, Defendants.

O P I N IO N AND ORDER P la in t if f s sue the United States and unknown tortfeasors under the Federal Tort Claims A c t ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, alleging negligent infliction of actual harm. (D o ck et No. 1.) Plaintiffs move for partial summary judgment, on the issue of Defendants' liab ility, and for a trial date on damages. (Docket Nos. 11; 25; 28.) Plaintiffs also move for fact a n d expert discovery deadlines. (Docket No. 30.) The United States opposes Plaintiffs' motion f o r partial summary judgment and for a trial date on damages (Docket Nos. 16; 22; 29), and P lain tiff s reply (Docket No. 24). The United States also moves to dismiss for lack of subject m a tte r jurisdiction. (Docket No. 17.) Plaintiffs oppose that motion (Docket No. 18), and the U n ite d States replies (Docket No. 22).

Civil No. 09-1806 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 I. B a c k gro u n d

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W e derive the following facts regarding liability from Plaintiffs' statement of u n c o n tes ted facts (Docket No. 11-2), which the United States confirmed as uncontested (Docket N o . 16-2 at 1). On July 7, 2006, Plaintiff Ashley Emeric was aboard a bus owned by the U.S. g o v e r n m e n t and operated by its employee during the course of his official duties. Plaintiffs s u f f e re d damages due to an accident caused by that employee's negligent operation of the bus. W e derive the following facts regarding exhaustion of administrative remedies from the p arties' submissions on that issue. (Docket Nos. 17; 18; 22.) We note that Plaintiffs' d e s c r ip t io n of their exhaustion efforts (Docket No. 18) goes uncontested by the United States (D o c k e t No. 22). On March 25, 2008, Plaintiffs timely filed an administrative claim with the U n ite d States. On July 2, 2008, Department of Army claims attorney Joseph J. Frattallone (" F ra tta llo n e " ) requested via letter additional information and documentation from Plaintiffs, n o tif yin g them that noncompliance would frustrate the resolution of their claim. On D e c e m b e r 31, 2008, Plaintiffs' counsel replied but did not provide all the requested documents. O n January 27, 2009, Frattallone sent another round of similar correspondence to Plaintiffs. In February 2009, U.S. Army Claims Service attorney Walter E. Parker IV ("Parker") c o rre sp o n d e d with Plaintiffs' counsel via phone and e-mail regarding Plaintiffs' claim. On A p ril 22, 2009, Parker and Plaintiffs met for further resolution of the claim. On May 20, 2009, P a rk e r and Plaintiffs met to discuss settlement of the claim; the United States there provided P l ain tif f s a structured settlement offer. The parties failed to settle the claim at that time. On

Civil No. 09-1806 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A.

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A u g u s t 14, 2009, Plaintiffs filed suit in this court due to the government's failure to resolve their claim administratively within six months of their having filed it. (Docket No. 1.) II. A n a l y s is M o tio n to Dismiss for Lack of Subject Matter Jurisdiction T h e United States argues that Plaintiffs did not exhaust their administrative remedies b e f o re filing this suit, as required, since they did not provide the specific documents requested b y Frattallone. (See Docket Nos. 17; 22.) The United States claims that Plaintiffs' failure to p r o v id e said documents accounts for the parties' inability to reach a settlement. (Docket N o . 22.) U n d e r Federal Rule of Civil Procedure 12(b)(1), a movant may bring either a "factual c h a lle n g e " or a "sufficiency challenge" to a court's subject-matter jurisdiction. Valentín v. H o sp . Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). A movant may raise a factual c h a lle n g e by contradicting the "jurisdictional facts" that a plaintiff alleges. Id. Under a s u f f ic ie n c y challenge, the court takes the plaintiff's "jurisdictionally-significant facts as true," d raw s "all reasonable inferences from them in [the plaintiff's] favor," and then "assess[es] w h e t h e r the plaintiff has propounded an adequate basis for subject-matter jurisdiction." Id. As th e United States does not dispute the jurisdictional facts Plaintiffs allege (see Docket No. 22), w e construe the instant as a sufficiency challenge. B e f o r e filing suit under the FTCA, a plaintiff must exhaust her administrative remedies th r o u g h the relevant government agency. 28 U.S.C. § 2675(a). A failure to do so deprives this

Civil No. 09-1806 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

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c o u rt of subject matter jurisdiction over the prematurely-filed suit. See, e.g., Santiago-Ramirez v . Sec'y of Dep't of Def., 984 F.2d 16, 18-19 (1st Cir. 1993). A plaintiff exhausts administrative re m e d ie s once she has given the agency information sufficient for its investigation of the claim a n d has demanded of the agency a sum certain. See id. at 19. This exhaustion requirement is d e sig n e d to give the government an opportunity to settle the claim prior to suit. See id.; Lopez v . United States, 758 F.2d 806, 809-10 (1st Cir. 1985) ("The claims process is meant largely to f u rn ish notice to the government sufficient to allow it to investigate the alleged negligent e p is o d e to determine if settlement would be in the best interests of all."). T h e United States in this case would demand of Plaintiffs more than is required to e x h a u st administrative remedies. Plaintiffs provided the United States adequate opportunity to s e ttle their claim, as is evident from the fact that the United States offered Plaintiffs a structured s e t tle m e n t at a settlement meeting. Nevertheless, the United States argues that this case is s im i la r to Swift v. United States, in which the plaintiffs' attorney received letters from the g o v e rn m e n t agency looking to settle the claim prior to suit--similar to those Plaintiffs' counsel re c eiv e d from Frattallone in the instant suit--and the attorney simply did not respond. 614 F.2d 8 1 2 (1st Cir. 1980). Having ignored the government's correspondence, the attorney filed suit a f ter his clients' claim turned six months old. Id. at 813-14. The First Circuit there found that th e attorney's neglect rendered impossible the government's assessment of his clients' claim. Id . at 814. B y contrast, in the case at hand, Plaintiffs' attorney did not ignore or neglect the g o v e rn m ent. Rather, Plaintiffs' attorney failed to provide all documentation that the government

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d e e m e d necessary to substantiate Plaintiffs' claimed damages so that it could settle for the a m o u n t Plaintiffs demanded. This failure to provide documentation in the context of settlement, u n a c c o m p a n ied by the neglect found in Swift, does not constitute a failure to exhaust a d m in is tra ti v e remedies under the FTCA. See Santiago-Ramirez, 984 F.2d at 19; see also L o p e z , 758 F.2d at 809-10 (citing with approval Adams v. United States, 615 F.2d 284 (5th Cir. 1 9 8 0 ), clarified in 622 F.2d 197 (5th Cir. 1980)). As Plaintiffs here did all that was required to exhaust their administrative remedies, we have subject matter jurisdiction over the instant s u it. B. M o tio n for Partial Summary Judgment as to Liability W e grant a motion for summary judgment "if the pleadings, the discovery and disclosure m a ter ials on file, and any affidavits show that there is no genuine issue as to any material fact a n d the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). T h e elements of a tort claim under the FTCA are governed by the substantive law of the s ta te or territory in which it is brought--in this case, Puerto Rico. 28 U.S.C. §§ 1346(b), 2674. In Puerto Rico, a defendant is liable if the plaintiff proves an injury, a negligent or intentional a c t or omission, and a sufficient causal nexus between the injury and the act or omission. 31 L .P .R .A . § 5141 (1993); see also Wojciechowicz v. United States, 582 F.3d 57, 66 (1st Cir. 2 0 0 9 ). A s the United States makes no argument in opposition to Plaintiffs' motion for partial s u m m a ry judgment--outside its challenge to this court's subject matter jurisdiction, discussed in Part II.A--we find that no genuine issue of material fact exists as to the United States'

Civil No. 09-1806 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

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lia b ility. And, given the facts outlined above in Part I, we find that the United States is liable to Plaintiffs under 31 L.P.R.A. § 5141. We make no finding here as to Plaintiffs' claims against th e Defendant unknown tortfeasors. III. C o n c lu s io n G iv e n the foregoing, we hereby DENY the United States' motion to dismiss (Docket N o . 17) and GRANT IN PART Plaintiffs' motion for partial summary judgment and for a trial d a te on damages (Docket No. 11). We find the United States liable to Plaintiffs and ORDER a trial on damages beginning September 13, 2010, at 9:00 A.M.1 We also GRANT P lain tiff s' unopposed motion for fact and expert discovery deadlines (Docket No. 30), and set th e m as follows: Fact discovery is due June 15, 2010; the United States' expert report is d u e July 15, 2010; and expert discovery shall close on August 15, 2010. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 5 th day of May, 2010. s/ José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge

In subsequent motions for a trial date, Plaintiffs suggested that the trial be held in September 2010. (See Docket Nos. 25; 28.) The United States stated that it too could be ready for trial in September 2010. (Docket No. 29.)

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