Toro-Ojio et al v. USA et al
Filing
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OPINION AND ORDER: Remanding case against remaining defendant to the Puerto Rico Court of First Instance. Signed by Judge Gustavo A. Gelpi (AS) Modified to add text on 11/18/2014 (su).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF PUERTO RICO
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ANGLES M. TORO-OJIO and ERICK
VEGA-BONILLA,
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Plaintiffs,
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CIVIL NO. 14-1702 (GAG)
v.
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UNITED STATES OF AMERICA et. al,
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Defendants.
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OPINION AND ORDER
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The present action was originally filed by Angeles M. Toro-Ojio (“Plaintiff”) and Erick
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Vega Bonilla in Ponce Superior Court of the Commonwealth of Puerto Rico on July 29, 2014,
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against the United States, the President of the United States, the Department of Defense, the
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United States Army Reserve, and Ronnie Molina Rodríguez in his official and personal capacities
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(collectively referred to as “Defendants”). (See Docket No. 6.) Plaintiff alleges that while she was
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driving her vehicle on Route 153, Rodríguez negligently hit her car with the National Guard truck
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that he was driving, thereby causing her injuries. (Docket No. 6-1 ¶¶ 3-6.)
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On September 15, 2014, Defendants removed said action to this court. (See Docket No. 1.)
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Thereafter, Defendants moved to dismiss Plaintiff’s complaint in its entirety for lack of subject
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matter jurisdiction, arguing that the only proper party this action is the United States pursuant to
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the waiver of sovereign immunity under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. § 2671
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et seq., and also that the complaint is premature because Plaintiff failed to exhaust her
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administrative remedies before filing said action. (See Docket No. 7.) Plaintiff failed to respond
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to Defendants’ motion.
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Civil No. 14-1702 (GAG)
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I.
Discussion
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A. Proper Party to the Action
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As a sovereign, the United States is immune from suit unless it waives its immunity by
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consenting to be sued. See United States v. Mitchell, 436 U.S. 206, 212 (1983). The FTCA
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provides the mechanism through which individuals can sue the United States for the tortious
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conduct of its employees. See Roman v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000). “The FTCA
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waives the sovereign immunity of the United States with respect to tort claims . . . and provides the
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exclusive remedy to compensate for a federal employee's tortious acts, committed within his or her
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scope of employment.” Id. Therefore, the remedies provided under the FTCA against the United
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States for negligent suits are exclusive and federal employees are immune from negligence suits
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for acts or omissions taken within the scope of their employment. See 28 U.S.C. § 2679(b)(1).
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In the present case, Defendants contends that the all of the named defendants other than the
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United States should be dismissed from this action because the United States is the only proper
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party defendant to a suit based on torts arising from the negligent acts of its employees that occur
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within the scope of their employment. (Docket No. 7 at 3-6.) Defendants are correct. Only the
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United States may be a named defendant in an action such as the present one. See 28 U.S.C. §
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2679; McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). Although Plaintiff did not
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institute this cause of action pursuant to the FTCA, because as the statute provides the exclusive
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remedy her action and it shields federal agencies and individuals acting within the scope of their
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employment from liability, Plaintiff’s claims against the President of the United States, the
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Department of Defense, and the United States Army Reserve are hereby DISMISSED.
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Civil No. 14-1702 (GAG)
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B. Exhaustion of Administrative Remedies
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The court also agrees with Defendants’ argument that this action must be dismissed against
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the United States because Plaintiff failed to first exhaust her administrative remedies by presenting
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her claim to the appropriate federal agency. Defendants attached to their motion to dismiss a
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sworn statement by Joseph Frattallone, the claims attorney for the Installation Office at Fort
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Buchanan, Puerto Rico. (See Docket No. 7-1 at 1.) In the statement, Frattallone states that he has
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not received nor does he have any knowledge that any claims by Plaintiff have been filed under the
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FTCA with his office. (See id. at 2.) “An action shall not be instituted upon a claim against the
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United States for money damages for injury . . . caused by the negligent or wrongful act or
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omission of any employee of the Government while acting within the scope of his office or
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employment, unless the claimant shall have first presented the claim to the appropriate Federal
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agency and his claim shall have been finally denied by the agency in writing and sent by certified
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or registered mail.” 28 U.S.C. § 2675(a); see Santiago Acevedo-Pérez v. United States, 768 F.3d
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51, 55 (1st Cir. 2014). Therefore, the court finds that Plaintiff has not exhausted her claim as
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required under 28 U.S.C. § 2675(a) and, hence, she is not permitted to pursue a claim against the
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United States in this action. Accordingly, Plaintiff’s claim against the United States is hereby
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DISMISSED.
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C. Claim Against Rodríguez
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Although the FTCA provides the exclusive remedy to compensate Plaintiff for a federal
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employee's tortious acts and she indeed alleges that Rodríguez is a federal employee, this rule is
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limited to negligent acts or omissions committed within of the scope of the employee’s
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employment.
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Commonwealth Court reveals that Plaintiff did not allege that Rodríguez was acting within the
See Roman, 224 F.3d at 27.
An examination of the complaint filed in
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Civil No. 14-1702 (GAG)
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scope of his employment when he hit Plaintiff’s car. (See Docket No. 6.) Therefore, on the face
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of the complaint, Plaintiff could very well have a valid negligence claim against Rodríguez in his
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individual capacity. As such, the court REMANDS this case back to Commonwealth Court for
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that court to adjudicate the claim to the extent that Plaintiff seeks to recover for Rodríguez’s
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negligence outside the scope of his employment with the National Guard.
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II.
Conclusion
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Accordingly, Plaintiff’s claims against the United States, the President of the United States,
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the Department of Defense, and the United States Army Reserve are dismissed from the present
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action. To the extent that Plaintiff seeks to recover from Rodríguez for his negligence outside the
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scope of his employment with the National Guard, the court remands this case back to
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Commonwealth Court. For those reasons, Defendants’ Motion to Dismiss at Docket No. 7 is
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hereby GRANTED in part and DENIED in part.
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SO ORDERED.
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In San Juan, Puerto Rico this 18th day of November, 2014.
s/ Gustavo A. Gelpí
GUSTAVO A. GELPI
United States District Judge
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