Boada v. Autoridad de Carreteras y Transportacion, ELA y Otros

Filing 27

OPINION AND ORDER denying 11 Motion to Dismiss as to the United States of America; denying 16 Motion to Dismiss as to Dick Corporation of Puerto Rico, Inc. Joint Case Managment Memorandum Filing due by 2/12/2010. Joint Rule 26 Meeting Report due by 2/12/2010.Signed by Judge Salvador E Casellas on 1/22/2010.(THD)

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO G U IL L E R M O JOSE BOADA, et al. Plaintiffs v. A U T O R ID A D DE CARRETERAS Y T R A N S P O R T A C IO N , et al. Defendants C iv il No. 09-1930

OPINION and ORDER P e n d in g before this Court are two motions to dismiss, one from each Co-Defendant, the U n ite d States of America ("United States")(Docket # 11) and Dick Corporation of Puerto Rico, In c . ("Dick Corporation"). Docket # 16. Plaintiffs have proffered a reply in opposition to each m o tio n (Dockets # 18 & 24). After reviewing the filings, and the applicable law, both the United S ta te s and Dick Corporation's motions to dismiss will be DENIED. Factual & Procedural Background On the evening of December 17, 2005, Guillermo José Boada Santamaría ("Boada") a lle g e d ly crashed his Dodge Caravan into a concrete barrier obstructing Puerto Rico Highway 2 8 in San Juan. Boada, his wife, Ximara Llorens Berrios, and their Conjugal Partnership (c o lle c tiv e ly, "Plaintiffs"), allege that the concrete block/or divider was left unmarked, unlit, a n d unattended, during a construction project on the roadway. Docket # 1-6 at 4. The accident c a u s e d Boada numerous injuries, and he brought suit in local court seeking to recover tort d a m a g e s from the Commonwealth of Puerto Rico, and various local government dependencies, P u e rto Rico Electric Power Authority ("PREPA"), Puerto Rico Department of Transportation a n d Public Works ("DTOP"), and the Puerto Rico Ports Authority ("PRPA") (collectively, the " C o m m o n w e a lth " ), along with their unnamed insurance providers, and Dick Corporation, a p riv a te government contractor.

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CIVIL NO. 09-1930(SEC)

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O n August 12, 2009, Commonwealth attorneys, representing DTOP, filed a third-party c la im against the United States Army Corps of Engineers ("USACE"). Docket # 1-4. USACE th e n filed a timely Notice of Removal to this Court on September 15, 2009, and followed with a Motion to Dismiss on December 1, 2009. Docket # 16. The Motion to Dismiss alleges that this C o u rt lacks jurisdiction to entertain the third-party complaint, because said claim necessarily a ris e s under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) & 2671 et seq, and n e ith e r Plaintiffs nor the Commonwealth have gone through the necessary steps to comply with s a id law's administrative exhaustion requirements. Dick Corporation has brought a separate Motion to Dismiss alleging that it has not been p ro p e rly served. Docket # 16. More specifically, it avers that only "[o]n October 19, 2009, after th e case had been removed and dismissed from the Commonwealth Court, [Dick Corporation] w a s served with a summons issued by the Commonwealth Court and a copy of an Amended C o m p la in t filed therein." Id. at 1. For purposes of expediency, this Court will now analyze both m o tio n s , rather than issuing separate opinions. Standard of Review F ED. R. CIV. P. 12(b)(1) is the proper vehicle for challenging a court's subject matter ju ris d ic tio n . Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). Under this ru le , a wide variety of challenges to the Court's subject matter jurisdiction may be asserted, a m o n g them those based on sovereign immunity, ripeness, mootness, and the existence of a f e d e ra l question. Id. (citations omitted). When faced with such a jurisdictional challenge, this C o u rt must ". . . give weight to the well-pleaded factual averments in the operative pleadings [ . . .] and indulge every reasonable inference in the pleader's favor." Aguilar v. U.S.

Im m ig ra tio n and Customs Enforcement Div. of Dept. of Homeland Sec., 510 F.3d 1, 8 (1st C ir .2 0 0 7 ) .

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A party faced with a motion to dismiss for lack of subject matter jurisdiction has the b u rd e n to demonstrate that such jurisdiction exists. See Lord v. Casco Bay Weekly, Inc., 789 F . Supp. 32, 33 (D. Me. 1992); see also SURCCO V. PRASA, 157 F. Supp. 2d 160, 163 (D. P .R . 2001). Motions brought under Rule 12(b)(1) are subject to a similar standard of review a s Rule 12(b)(6) motions. Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1 9 9 4 ); Torres Maysonet v. Drillex, S.E., 229 F.Supp.2d 105, 107 (D.P.R. 2002). Under Rule 1 2 (b )(1 ), dismissal would be proper if the facts alleged reveal a jurisdictional defect not o th e rw is e remediable. This Court accepts all well-pleaded factual allegations as true, and draws a ll reasonable inferences in plaintiff's favor. See Correa-Martinez v. Arrillaga-Belendez, 903 F .2 d 49, 51 (1st Cir. 1990)(overruled on other grounds). This Court need not credit, however, " b a ld assertions, unsupportable conclusions, periphrastic circumlocutions, and the like" when e v a lu a tin g the Complaint's allegations. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). Applicable Law & Analysis FTCA Administrative Exhaustion Requirement The exclusive remedy for recovery from tortious acts committed by representatives of th e United States acting within the scope of their employment is the FTCA, which is ". . . a lim ite d waiver of sovereign immunity by the United States whereby a claimant can sue for the `n e g lig e n t or wrongful act or omission' of certain government employees." Ramirez-Carlo v. U n ite d States, 496 F.3d 41, 47 (1st Cir. 2007) (citing 28 U.S.C. § 1346(b)(1)). The FTCA re q u ire s that as a general condition precedent to suit, all tort claims against the United States m u s t pass through a prior administrative revision. In pertinent part, the statute states: An action shall not be instituted upon a claim against the United States for money d a m a g e s for injury or loss of property or personal injury or death caused by the n e g lig e n t or wrongful act or omission of any employee of the Government while a c tin g within the scope of his office or employment, unless the claimant shall have

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f irs t presented the claim to the appropriate Federal agency and his claim shall have b e e n finally denied by the agency in writing and sent by certified or registered m a il. . . . [However t]he provisions of this subsection shall not apply to such c la im s as may be asserted under the Federal Rules of Civil Procedure by th ir d party complaint, cross-claim, or counterclaim. 28 U.S.C. § 2675(a)(emphasis added). It is on the first grounds of this paragraph of the FTCA that the United States seeks d is m is s a l, and from the plain language of the final sentence that the Commonwealth argues that th is case fits into a statutory exception, and therefore should precede. Given that the general ru le regarding the administrative review requirement is not contested, this Court will focus on e lu c id a tin g whether the facts at bar fit into the third party claim exception. The United States'

m o tio n to dismiss did not develop its argumentation on the issue of a third party complaint, nor h a s it proffered a reply to the Commonwealth's response, predicated on the plain language of 2 8 U.S.C. § 2675(a). However, the original motion does cite West v. United States, 592 F.2d 4 8 7 , 492 (8th Cir. 1979), which stands for the proposition that a plaintiff cannot assert a claim d ire c tly against the United States if it is brought into an action as a third-party defendant. This Court will not rule on said issue, but instead agrees with the Commonwealth that a n o th e r series of cases better fits the facts at bar. See, e.g., Thompson v. Wheeler, 898 F.2d 406 (3 d Cir. 1990); Hassan v. Louisiana Dep't of Transp.& Dev., 923 F. Supp. 890, 893-894 (W.D. L a . 1996). These establish that third-party actions under FED. R. CIV. P. 14 seeking indemnity o r contribution from the United States are not subject to administrative exhaustion. 3-17 Jayson & Longstreth, Handling Federal Tort Claims § 17.01. The issue has not be directly resolved by th e First Circuit, but in Thompson the Third Circuit held a ". . .defendant as a third party p la in tif f may cause a summons and complaint to be served upon a person not party to the action `w h o is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against t h e third-party plaintiff' . . ." Id. at 410. Such language appears to fit the present situation,

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w h e re Plaintiffs have brought suit against the Commonwealth in local court, only for said party 3 to assert a counter claim against the United States. This is not a situation parallel to West where 4 d ilig e n c e as to the original defendant's status to be sued would have shown that he was in fact 5 c o v e re d by the FTCA. On the contrary, the United States and the Commonwealth may very well 6 h a v e competing and contradictory theories of liability and Plaintiff has taken no steps to assert 7 a direct claim against a federal party. There is no evidence of artful pleading on the part of 8 P la in tif f s , and this situation is amenable to the plain language of 28 U.S.C. § 2675(a). 9 T h e re f o re , the United States motion to dismiss is hereby DENIED. 10 S e r v ic e of Process 11 T h e second motion to dismiss was brought by Dick Corporation. It alleges improper 12 s e rv ic e of process, and seeks dismissal under FED. R. CIV. P. 12(b)(4) & 12(b)(5). FED. R. CIV. 13 P (4 )(m ) allows for dismissal in circumstances where a Plaintiff fails to serve process on a 14 d e f e n d a n t within 120 days after the complaint is filed. However, the rule also allows for a 15 d is c re tio n a ry enlargement of the time to serve process, and this period must be extended if upon 16 n o tic e by the court of failure to serve, a plaintiff shows good cause for his or her delay. 17 In the present action, Dick Corporation acknowledges receipt of a summons in the 18 o rig in a l local court case, but alleges that it is null and void because it was served after notice 19 o f removal had been 20 In te rn a tio n a l (U.S.A.), Ltd., 610 F. Supp. 149, 152 (E.D. Mich. 1985) & Beecher v. Wallace, 21 3 8 1 F.2d 372 (9th Cir. 1967)).This Court agrees with Dick Corporation on the invalidity of the 22 lo c a l process. Nevertheless, it cannot grant dismissal due to the facts that Plaintiffs have shown 23 g o o d cause for the delay and problems related to the original, nullified, summons. To wit, 24 P la in tif f s took timely action to notify Dick Corporation, but their efforts were cut short by 25 re m o v a l. Nevertheless, nothing bars this Court from issuing new process under FED. R. CIV. P. 26 entered. Docket # 18 at 2 (citing Dean Marketing, Inc. v. AOC

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Beecher, 381 F.2d at 373. Because Plaintiff acted diligently in serving process on Dick

3 C o rp o ra tio n in the prior iteration of this suit, the company will suffer no prejudice beyond 4 h a v in g to defend itself against Plaintiffs' allegations, and dismissal would only cause 5 f ra g m e n te d and inefficient litigation. Accordingly, Dick Corporation's motion to dismiss shall 6 b e DENIED. 7 Conclusion 8 Plaintiffs are GRANTED 30 days to serve process on Dick Corporation in accordance 9 w ith FED. R. CIV. P. 4. The Clerk of the Court shall issue the necessary summons. Furthermore, 10 th e Case Management Schedule has not been stayed, and the parties should make every effort 11 to comply with the existing deadlines. In light of Dick Corporation's request at Docket # 26, 12 th e Joint Case Management Memorandum and separate Joint Rule 26 Meeting Report are 13 n o w due on 2/12/2010. 14 IT IS SO ORDERED. 15 In San Juan, Puerto Rico, this 22nd day of January, 2009. 16 17 18 19 20 21 22 23 24 25 26 S /S a lv a d o r E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge