Alicea-Diaz et al v. National Park Services

Filing 27

OPINION AND ORDER DENYING 25 MOTION to dismiss as to Janet Diaz-Pizarro, filed by United States Department of National Park Services, on the ground that their affirmative defense of Diaz's failure to perform a condition precedent cannot be established with certitude at the pleadings stage. Signed by Judge Jose A. Fuste on 1/29/2016.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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JORLANET ALICEA-DIAZ, et al.,
Plaintiffs,

Civil No. 3:14-CV-01871 (JAF)

v.
UNITED STATES OF AMERICA,
Defendant.
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OPINION AND ORDER

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On May 9, 2014, plaintiffs Jorlanet Alicea-Díaz (“Alicea”) and Janet Díaz-Pizarro

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(“Díaz”) brought a federal tort action against defendant United States of America (“the

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Government”), seeking damages from an injury that Alicea had allegedly suffered on

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January 14, 2012, due to the negligent maintenance of National Park Service land in San

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Juan, Puerto Rico. (14-CV-01378, ECF No. 1.) On September 30, 2014, Judge Carmen

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Consuelo Cerezo dismissed the action without prejudice for failure to serve process on

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the Government within the 120 days that Federal Rule of Civil Procedure 4(m) provided

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at the time. (14-CV-01378, ECF No. 7.) On October 9, 2014, plaintiffs moved the court

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to reconsider the dismissal. (14-CV-01378, ECF No. 9.) On July 23, 2015, Judge Cerezo

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denied the motion. (14-CV-01378, ECF No. 10.)

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On December 2, 2014, plaintiffs commenced this action by refiling their complaint

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from the earlier action, changing only the date on the signature page. (ECF No. 1.) On

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June 25, 2015, the Government answered the complaint, alleging, among other things,

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that Díaz had failed to perform the condition precedent of filing an administrative claim

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and that the Government had denied Alicea’s administrative claim by a certified mailing

Civil No. 3:14-CV-01871 (JAF)

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sent on November 3, 2013. (ECF No. 19 ¶ 18.) On December 31, 2015, the Government

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moved the court to dismiss Díaz’s claim due to her alleged failure to exhaust her

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administrative remedies. (ECF No. 25.) Under Local Rule 7(b), if the party opposing a

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motion fails to object to it in writing within fourteen days of its service, “the opposing

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party shall be deemed to have waived objection” to the motion. L.Cv.R. 7(b). As of the

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date of this opinion, nearly one month after service of the Government’s partial motion to

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dismiss, plaintiffs have failed to object or in any way respond to the motion. Thus, the

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court finds that plaintiffs have waived any and all objections to the motion.

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Plaintiffs have brought this action under the Federal Tort Claims Act (“the Act”),

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28 U.S.C. §§ 1346(b)(1), 2671 et seq. (ECF No. 1 ¶ 1.) The Act “provides that a tort

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claim against the United States ‘shall be forever barred’ unless it is presented to the

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‘appropriate Federal agency within two years after such claim accrues’ and then brought

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to federal court ‘within six months’ after the agency acts on the claim.” United States v.

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Kwai Fun Wong, 135 S. Ct. 1625, 1629 (2015) (quoting 28 U.S.C. § 2401(b)). These

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“time bars are nonjurisdictional and subject to equitable tolling.” Id. at 1638.

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Under the Act, a “prior administrative denial” of a plaintiff’s claim is “a condition

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precedent to suit.” Rodrigue v. United States, 968 F.2d 1430, 1431 (1st Cir. 1992) (citing

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28 U.S.C. § 2675). Under Federal Rule of Civil Procedure 9(c), “[i]n pleading conditions

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precedent, it suffices to allege generally that all conditions precedent have occurred or

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been performed.” Fed. R. Civ. P. 9(c); see also Walton v. Nalco Chem. Co., 272 F.3d 13,

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21 (1st Cir. 2001). Here, plaintiffs have made such a general allegation, averring that

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“[a]ll conditions precedent required of [them] prior to bringing this action have occurred

Civil No. 3:14-CV-01871 (JAF)

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or have been met, including . . . filing their administrative claims for sums certain with

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the [National Park Service] on June 25, 2013.” (ECF No. 1 ¶¶ 15-16.) The Government

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concedes that Alicea “filed an administrative claim on June 25, 2013,” with, presumably,

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the appropriate federal agency. (ECF No. 25 at 1.) The Government contests only

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whether Díaz properly filed an administrative claim as well. (ECF No. 25 at 1, 3.)

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The Government’s claim that Díaz failed to perform a condition precedent and,

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thus, is barred from suit, is an affirmative defense. See Walton, 272 F.3d at 21-22 &

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n.14.

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(1) definitively ascertainable from the complaint and other sources of information that are

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reviewable at this stage, and (2) the facts establish the affirmative defense with

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certitude.” Citibank Global Mkts., Inc. v. Santana, 573 F.3d 17, 23 (1st Cir. 2009) (citing

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Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008)). Here, as

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noted above, plaintiffs claim that they both filed an administrative claim with the

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National Park Service, whereas the Government alleges that only Alicea filed a claim.

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This presents a genuine dispute of material fact that cannot be resolved on a motion to

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dismiss, where we must “accept as true all of [plaintiffs’] well-pleaded facts and draw all

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reasonable inferences in the light most favorable to [them].” See id. at 23 (citing Gray,

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544 F.3d at 324). Accordingly, the Government’s motion to dismiss Díaz’s claim is

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unavailing.

An affirmative defense “will support a motion to dismiss only where it is

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Looking ahead, the court notes another factual dispute of potentially dispositive

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importance. Plaintiffs allege that the National Park Service “has not yet notified [them]”

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about whether their administrative claims have been “granted or denied.” (ECF No. 1

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¶ 19.)

Plaintiffs argue that this alleged two-and-one-half-year-long “non-response”

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should not preclude them from suing in court. (ECF No. 1 ¶ 20.) This allegation is

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significant because “[a] tort claim against the United States ‘shall be forever barred . . .

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unless action is begun within six months after the date of mailing . . . of notice of final

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denial of the claim by the agency to which it was presented.” Roman-Cancel v. United

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States, 613 F.3d 37, 41 (1st Cir. 2010) (quoting 28 U.S.C. § 2401(b)). Equally significant

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is the Government’s answer in opposition to that allegation, where the Government states

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that “on November 3, 2013, a decision denying the claim of [Alicea] was mailed to her,

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via Certified Mail . . . , to the address specified in her administrative claim, and [a receipt

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of delivery] was returned.” (ECF No. 19 ¶¶ 18-19.) If the Government can substantiate

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that allegation, it would appear that, absent tolling, the May 9, 2014, filing of plaintiffs’

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complaint in the first action was slightly untimely and the December 2, 2014, filing of the

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complaint in this action was rather untimely. This appears to be a dispute that can be

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easily resolved on a future motion upon presentation of the right evidence.

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In sum, the court DENIES the Government’s partial motion to dismiss, filed under

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ECF No. 25, on the ground that their affirmative defense of Díaz’s failure to perform a

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condition precedent cannot be established with certitude at the pleadings stage.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 29th day of January, 2016.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE