Tirado-Maldonado et al v. United States of America et al
Filing
20
ORDER granting 12 Motion to Dismiss. Signed by Judge Juan M. Perez-Gimenez on 11/20/2013. (VCC)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
GLORINES TIRADO-MALDONADO;
MALDONADO-GONZALEZ
and
ROBLES-BURGOS
SANTOS
CARMEN
Plaintiffs,
Civil Case. NO. 12-1673 (PG)
v.
UNITED STATES OF AMERICA;
DEPARTMENT OF JUSTICE; U.S.
ENFORCEMENT ADMINISTRATION
U.S.
DRUG
Defendants.
OPINION AND ORDER
Pending before the Court is United States of America, the U.S. Drug
Enforcement Administration (“DEA”) and the U.S. Department of Justice’s
(“DOJ”) motion to dismiss (Docket No. 12) and the plaintiffs’ opposition
thereto (Docket No. 14). For the reasons set forth below, the Court
hereby GRANTS the government’s request.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Glorines Tirado-Maldonado, Santos Maldonado-Gonzalez and
Carmen Robles-Burgos (hereinafter “plaintiffs”) filed the above-captioned
complaint pursuant to the Federal Tort Claims Act (“FTCA”). Therein, they
brought suit against
government”)
and
the United States of America
individual
federal
agencies
after
(hereinafter “the
DEA
Agent
Jimmy
Alverio-Hernandez was allegedly involved in a traffic accident which
resulted, inter alia, in the loss of plaintiff Santos Maldonado-Gonzalez’
automobile. See Docket No. 1.
Subsequently the government filed a motion to dismiss (Docket No.
12). In short, the government asserts that co-defendants U.S. Department
of Justice and the U.S. Drug Enforcement Administration are not proper
party defendants pursuant to the Federal Tort Claims At, inasmuch as
federal agencies are immune from suit eo nominee. See Docket No. 12.
In
addition, the government alleges that the complaint filed by plaintiff
Santos
Maldonado-Gonzales
is
timed-barred
insofar
as
the
accident
occurred on August 25, 2009, and the plaintiff filed the administrative
claim on October 31, 2011. Thus, the government asserts that by the time
that Mr. Maldonado-Gonzalez filed his claim, the statute of limitations
Civil No. 12-1673 (PG)
set
forth
government
in
28
Page 2
U.S.C.
requests
this
§
2401(b)
Court
had
dismiss
elapsed.
plaintiff
Consequently,
the
Maldonado-Gonzalez’
claim pursuant to FED.R.CIV.P. 12(b)(1).
Thereafter,
on
January
31,
2013,
the
plaintiffs
filed
their
response to the government’s motion to dismiss (Docket No. 14). Therein,
the plaintiffs consent to the government’s request for dismissal as to
co-defendants
U.S.
Department
of
Justice
and
U.S.
Drug
Enforcement
Administration.1 See Docket No. 14. However, plaintiff Maldonado-Gonzalez
opposes the government’s assertion that his complaint was time-barred. To
that effect, the plaintiffs include the Standard Form 95 submitted to the
U.S.
Drug
Enforcement
Administration
on
December
07,
2010,
wherein
plaintiff Maldonado-Gonzalez’s claim was allegedly accumulated as his
name was listed under the “property damage” section of said form. See
Docket No. 14-1. Accordingly, plaintiff Maldonado-Gonzalez asserts that
the claim for the loss of his vehicle was timely filed pursuant to 28
U.S.C. § 2401(b).
The government then filed its sur-reply to the plaintiffs’ response
to motion to dismiss (Docket No. 17), wherein it contends that the
administrative claim of plaintiff Maldonado-Gonzalez was not accumulated
in
the
Standard
Form
95
submitted
to
the
U.S.
Drug
Enforcement
Administration on December 07, 2010. See Docket No. 17. Moreover, the
government includes a statement under penalty of perjury of Associate
Chief Counsel Karen K. Richardson2 in which she asserts she denied “the
claim presented by plaintiff Maldonado-Gonzalez because it had not been
presented within two years of the date of the accident on August 25,
2009.” See Docket No. 17-1 ¶ 12.
II. STANDARD OF REVIEW
Motions to dismiss brought under FED.R.CIV.P. 12(b)(1) and 12(b)(6)
are subject to the same standard of review. See Negrón-Gaztambide v.
Hernández-Torres, 35 F.3d 25, 27 (1st Cir. 1994). Firstly, when ruling on
a motion to dismiss for failure to state a claim, a district court “must
1
Accordingly, the Court hereby DISMISSES plaintiffs’ claims against the U.S. Drug
Enforcement Association and U.S. Department of Justice WITH PREDJUDICE.
2
Karen K. Richardson is the Associate Chief Counsel, Civil Litigation Section, in the
Office of Chief Counsel of the United States Department of Justice, Drug Enforcement
Administration. She is the custodian of DEA records relating to the filing, evaluation,
and disposition of administrative claims presented to DEA under the Federal Tort Claims
Act. See Docket No. 17-1.
Civil No. 12-1673 (PG)
Page 3
accept as true the well-pleaded factual allegations of the complaint,
draw all reasonable inferences therefrom in the plaintiff’s favor, and
determine whether the complaint,
so read, limns facts sufficient to
justify recovery on any cognizable theory.” Rivera v. Centro Médico de
Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (citing LaChapelle v.
Berkshire
Life
Ins.
Co.,
142
F.3d
507,
508
(1st
Cir.
1998)).
Additionally, courts “may augment the facts in the complaint by reference
to (i) documents annexed to the complaint or fairly incorporated into it,
and (ii) matters susceptible to judicial notice.” Gagliardi v. Sullivan,
513 F.3d 301, 306 (1st Cir. 2008) (internal citations and quotation marks
omitted).
In
determining
whether
dismissal
of
a
complaint
is
appropriate
pursuant to Rule 12(b)(1) or 12(b)(6), the court must keep in mind that
“[t]he general rules of pleading require a short and plain statement of
the claim showing that the pleader is entitled to relief… this short and
plain statement need only give the defendant fair notice of what the…
claim is and the grounds upon which it rests.” Gargano v. Liberty Intern.
Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009) (internal citations
and
quotation
marks
omitted).
Nevertheless,
“even
under
the
liberal
pleading standard of Federal Rule of Civil Procedure 8, the Supreme Court
has… held that to survive a motion to dismiss, a complaint must allege ‘a
plausible entitlement to relief.’” Rodríguez-Ortiz v. Margo Caribe, Inc.,
490 F.3d 92, 95 (1st Cir. 2007) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 559 (2007)). “A claim has facial plausibility when the
plaintiff
pleads
factual
content
that
allows
the
court
to
draw
the
reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 556). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level… on the
assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations and
quotation
marks
omitted).
“Determining
whether
a
complaint
states
a
plausible claim for relief will… be a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 129 S.Ct. at 1950.
Civil No. 12-1673 (PG)
Page 4
“In resolving a motion to dismiss, a court should employ a two
pronged
approach.
It
should
begin
by
identifying
and
disregarding
statements in the complaint that merely offer legal conclusions couched
as fact or threadbare recitals of the elements of a cause of action.”
Ocasio-Hernández
v.
Fortuño-Burset,
640
F.3d
1,
12
(1st
Cir.
2011)
(citing Twombly, 550 U.S. at 555) (internal quotation marks omitted).
Although a complaint attacked by a motion to dismiss pursuant to Federal
Rule
of
Civil
Procedure
12(b)(6)
“does
not
need
detailed
factual
allegations… a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.”
Twombly,
550
U.S.
at
555
(internal
citations
and
quotation
marks
omitted). That is, the court “need not accept as true legal conclusions
from
the
complaint
or
naked
assertions
devoid
of
further
factual
enhancement.” Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir.2009)
(citing Iqbal, 129 S.Ct. at 1960). “Non-conclusory factual allegations in
the
complaint
must
then
be
treated
as
true,
even
if
seemingly
incredible.” Ocasio-Hernández, 640 F.3d at 9 (citing Iqbal, 129 S.Ct. at
1951).
When evaluating the plausibility of a legal claim, a court may not
“attempt to forecast a plaintiff’s likelihood of success on the merits; a
well-pleaded complaint may proceed even if… a recovery is very remote and
unlikely.” Ocasio-Hernández, 640 F.3d at 12-13 (citing Twombly, 550 U.S.
at 556). Thus, “[t]he relevant inquiry focuses on the reasonableness of
the inference of liability that the plaintiff is asking the court to draw
from the facts alleged in the complaint.” Ocasio-Hernández, 640 F.3d at
13.
II.
It
is
well
settled
law
DISCUSSION
that
the
United
States
cannot
be
sued
without its prior consent. Accordingly, the United States Supreme Court
has held that “the United States, as sovereign, is immune from suit save
as it consents to be sued ..., and the terms of its consent to be sued in
any court define that court's jurisdiction to entertain the suit.” United
States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v.
Sherwood, 312 U.S. 584, 586 (1941)). In addition, “sovereign immunity is
jurisdictional in nature. Indeed,
the terms of [the United States']
Civil No. 12-1673 (PG)
Page 5
consent to be sued in any court define that court's jurisdiction to
entertain the suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941)).
The Federal Tort Claims Act3 “is a limited waiver of the federal
government’s
sovereign
immunity
with
respect
to
tortuous
conduct
of
federal employees.” Shansky v. United States, 164 F.3d 688, 690 (1st
Cir.1999). Moreover, it is the exclusive remedy for suits against the
United States or its agencies sounding in tort.4
Pursuant to the FTCA, a plaintiff is required to exhaust his or her
administrative remedies prior to filing suit. Accordingly, section 2675
provides, in relevant part, that “[a]n action shall not be instituted
upon a claim against the United States ... unless the claimant shall have
first presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency...”5 In order to properly
exhaust administrative remedies pursuant to section 2675, a plaintiff
shall file a “claim form or other written notification which includes (1)
sufficient information for the agency to investigate the claims, and (2)
the amount of damages sought.” Santiago-Ramirez v. Sec. of the Department
of Defense, 984 F.2d 16, at 19 (1st Cir. 1993). If a petitioner fails to
comply with the aforementioned statutory prerequisite, “the court must
dismiss the complaint for lack of subject matter jurisdiction.” McNeil v.
U.S., 508 U.S. 106, at 113(1993). Moreover, “plaintiffs bear the burden
of establishing that a proper administrative claim has been filed.”
Livera v. First Natl’ State Bank, 879 F.2d 1186, at 1195 (3rd Cir.
1989)). “If multiple claimants exist, each claimant must individually
satisfy the jurisdictional prerequisite of filing a proper claim...”
Frantz v. United States, 791 F.Supp. 445, at 450 (D. Delaware 1992)
(citing Estate of Santos v. United States, 525 F. Supp. 982 (D.P.R.)).
On a separate point, 28 U.S.C. §2401(b) sets forth the statute of
limitations applicable to claims brought under the FTCA. In accordance,
said section states:
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
3
4
5
28 U.S.C. §§ 1346, 2671–2680.
See 28 U.S.C. § 2679(a).
28 U.S.C. § 2675(a).
Civil No. 12-1673 (PG)
Page 6
after such claim accrues or unless action is begun
six months after the date of mailing, by certified
or registered mail, of notice of final denial of
the claim by the agency to which it was presented.
28 U.S.C. §2401(b). “Failure to timely file an administrative claim with
the appropriate federal agency results in dismissal of the plaintiff’s
claim, since the filing of an administrative claim is a non-waivable
jurisdictional requirement.” Santiago-Ramirez, 984 F.2d at 18.
Whether a claim accrues under the FTCA is a question of federal
law. Brazzell v. United States, 788 F.2d 1353, 1355 (8th Cir. 1986). As a
general rule, an FTCA claim accrues at the time of injury. United States
v. Kubrick, 444 U.S. 111 (1979). The accident that gave rise to the
above-captioned complaint took place on August 25, 2009. Thus, plaintiffs
were required to file their claim before the appropriate agency on or
before
August
25,
2011.
Plaintiff
Glorines
Tirado-Maldonado,
on
her
behalf and on behalf of minors Leomar and Ian Rodriguez-Tirado, timely
filed
her
complaint
before
the
Drug
Enforcement
Administration
on
December 7, 2010. Plaintiff Carmen Robles-Burgos did so as well. See
Docket No. 17-1. However, plaintiff Santos Maldonado-Gonzalez filed his
complaint on October 31, 2011, at which time the two year period set
forth in section 2401(b) had already expired. See Docket No. 12-1.
Mr. Maldonado-Gonzalez now avers that his claim was timely filed,
insofar as it was accumulated on the original Standard Form 95 submitted
to
the
agency
on
December
07,
2010.
See
Docket
No.
14.
The
Court
disagrees. Inasmuch as the present case involves multiple plaintiffs,
each claimant is required to “individually satisfy the jurisdictional
prerequisite of filing a proper claim...” Frantz v. United States, 791
F.Supp.
at
450.
Mr.
Maldonado-Gonzalez’
name
merely
appears
on
the
“property damage” section of Tirado-Maldonado’s claim form. Nonetheless,
he failed to timely file one in claimant capacity and thus, failed to
properly
exhaust
administrative
remedies
as
required
by
the
FTCA.
Accordingly, the Court finds that Mr. Maldonado-Gonzalez failed to carry
“the burden of establishing that a proper administrative claim has been
filed.” Livera v. First Natl’ State Bank, 879 F.2d at 1195. Consequently,
the Court finds that Mr. Maldonado-Gonzalez’ complaint is time-barred.
Civil No. 12-1673 (PG)
Page 7
CONCLUSION
Pursuant
to
the
foregoing,
the
government’s
motion
to
dismiss
(Docket No. 12) is GRANTED. Plaintiffs’ claims against co-defendants U.S.
Department
of
Justice
and
U.S.
Drug
Enforcement
Administration
are
DISMISSED WITH PREJUDICE, and plaintiff Maldonado-Gonzalez’ claim against
the government is DISMISSED WITH PREJUDICE. Partial judgment shall be
entered accordingly.
SO ORDERED.
In San Juan, Puerto Rico, November 20, 2013.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?