Glover v. U.S.

• Decision Date: 24 July 2000
• Docket Number: No. CIV.A. CV-99-547 (DGT).,CIV.A. CV-99-547 (DGT).
• Citation: 111 F.Supp.2d 190
• Parties: Jerome GLOVER and Michelle Glover, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

111 F.Supp.2d 190

Jerome GLOVER and Michelle Glover, Plaintiffs, v. UNITED STATES of America, Defendant.

No. CIV.A. CV-99-547 (DGT).

United States District Court, E.D. New York.

July 24, 2000.

Fred R. Profeta, Jr., Profeta & Eisenstein, Jay H. Tannenbaum, New York City, for Plaintiffs.

Sandra L. Levy, Assistant U.S. Attorney, Eastern District of New York, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

TRAGER, District Judge.

Plaintiffs brought this action under the Federal Tort Claims Act to recover damages arising from injuries sustained by Jerome Glover ("Glover" or "Mr. Glover") during an automobile accident involving a United States Postal Service ("USPS") vehicle. Defendant now moves to dismiss, or in the alternative, for summary judgment, on the grounds that (1) Glover failed to commence this action within sixty days after his claim was denied by the USPS, and (2) his wife, plaintiff Michelle Glover ("Mrs.Glover"), failed to present a notice of claim to the USPS within two years after the accident.

Background

On February 14, 1998, Glover was injured in a collision with a USPS vehicle. By a letter dated March 4, 1998, and sent by certified mail, return receipt requested, Glover's attorney requested a standard claim form from the USPS and forwarded a copy of a police report regarding the accident. (Gallaudet Decl. ¶ 3, Ex. A.) On June 2, 1998, Glover's attorney mailed a completed claim form to the USPS, which was received on June 4, 1998. (Plybon Decl. ¶ 3, Ex. A.) The form asserted a claim for property damage in the amount of $15,000 caused by the loss of Glover's Porsche automobile, and a claim for Glover's personal injuries, including "multiple serious injury [sic] to his head, neck, back and limbs including brain damage, contusion, coma, fractures of cervical spine, and ribs," in the amount of $25,000,000. (Id., Ex. A.) The form did not, however, include any claim on behalf of Mrs. Glover. (Id.)

By a letter dated June 24, 1998 and sent to Glover's attorney by certified mail, return receipt requested, the USPS denied Glover's claim on the ground that its investigation indicated that the accident resulted from Glover running a red-light and striking the USPS vehicle. (Id., Ex. C, at 1.) The June 24th letter advised Glover that if he was dissatisfied with the USPS's decision, he was entitled to file suit in the appropriate United States District Court not later than six months from the date of the letter. (Id.) The letter further advised:

Regulations of the Postal Service provide that prior to the commencement of suit and prior to the expiration of the six-month period allowed for filing suit, you have the right to file a request for reconsideration of your client's claim. To be timely filed, the request for reconsideration must be received within the six-month period.

(Id. at 1-2 (emphasis added).) The letter then supplied the address to which a request for reconsideration should be sent, and closed by explaining the form and required content of such a request. (Id. at 2.) The letter also referred Glover's attorney to the USPS regulation that outlines the procedures for submitting requests for reconsideration, 39 C.F.R. § 912.9. (Id.)

In a sworn affidavit, Glover's attorney, Jay H. Tannenbaum ("Tannenbaum"), states that on July 27, 1998, he drafted a letter requesting reconsideration of the USPS's decision on the ground that his investigation and the police report indicated that it was not Glover's vehicle, but the USPS vehicle that ran the red light and struck Glover's automobile. (Tannenbaum Aff. ¶ 3, Ex. A.)¹ Glover has submitted an unsigned copy of the letter, which bears the address indicated in the USPS's June 24th letter. (Id., Ex. A.) Tannenbaum further states that he verified that the address was correctly printed on the envelope before giving it to his secretary to send to the USPS's claims office by regular mail, no return receipt requested. (Id. ¶ 5, 9.) Tannenbaum's secretary states that she then delivered the letter directly to the post office. (D'Agnese Aff. ¶¶ 1-2.) The USPS, however, has submitted affidavits stating that it has no record of having received Tannenbaum's July 27th letter. (Gallaudet Decl. ¶¶ 4-6; Plybon Decl. ¶¶ 8-11.)

On January 28, 1999 — approximately seven months after the USPS denied Glover's claim, plaintiffs filed this complaint, seeking personal injury damages with respect to Mr. Glover and loss of consortium damages with respect to Mrs. Glover. Plaintiffs have not alleged that they or their attorney made any effort during the period from July 27, 1998, to January 28, 1999, to determine whether the July 27th letter was received by the USPS or whether the USPS had decided the request for reconsideration.

Defendant now moves to dismiss, or, in the alternative, for summary judgment.

Discussion

It is well-settled 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."'" Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981) (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941))). The Federal Tort Claims Act ("FTCA") provides a limited waiver of the sovereign immunity of the United States for certain torts. See 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680. In order to maintain a claim under the FTCA, a plaintiff attempting to assert it must comply with several strictly construed prerequisites to suit. See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir.1999) (citing United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979) ("[T]he [FTCA] waives the immunity of the United States and that in construing the statute of limitations, which is a condition of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended.")). Pertinently:

A tort claim against the United States shall be forever barred unless [1] it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless [2] action is begun within 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). "Unless a plaintiff complies with th[ese] requirements, a district court lacks subject matter jurisdiction over a plaintiffs FTCA claim." Smithsonian, 189 F.3d at 189 (citing Kubrick, 444 U.S. at 117-18, 100 S.Ct. at 357); accord Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 717 (2d Cir.1998); see also Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984) (stating that "[s]ome statutory time limits are treated as jurisdictional requirements, with the result that failure to timely file deprives the court of subject matter jurisdiction and the plaintiffs complaint can be dismissed at any time regardless of the excuse proffered for the delay" and citing FTCA). The burden is on the plaintiff to plead and prove compliance with § 2401(b). See Smithsonian, 189 F.3d at 189 (citing In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir.1987)).

The six-month period for filing an action in district court after final denial of a claim by the agency to which it was presented will, however, be tolled by a timely-filed request for reconsideration by the agency that denied the claim — here, the USPS. USPS regulations provide that:

Prior to the commencement of suit and prior to the expiration of the 6 month period provided in 28 U.S.C. 2401(b), a claimant, his duly authorized agent, or legal representative, may file a written request with the postal official who issued the final denial or with the Assistant General Counsel, Claims Division, U.S. Postal Service, Washington, D.C. 20260, for a reconsideration of a final denial of a claim ....

39 C.F.R. § 912.9(b). A "request for reconsideration of a final denial of a claim shall be deemed to have been filed when received in the office of the official who issued the final denial or in the office of the Assistant General Counsel, Claims Division, U.S. Postal Service, Washington, D.C. 20260-1111." Id. § 912.9(c) (emphasis added). If a claimant files a timely request for reconsideration and the USPS fails to render a decision on the request within six months after it is filed, the claimant may, at his option, deem the request to have been denied at any time after the expiration of the six-month period and may then commence an action in district court. See 28 U.S.C. § 2675(a); 39 C.F.R. § 912.9(b).

(1)

Mrs. Glover's claim for loss of consortium must be dismissed for failure to comply the FTCA's two-year limitations period for presenting a notice of claim to the USPS. Under FTCA regulations — the validity of which plaintiffs do not dispute, a claim is "deemed to have been presented [for the purposes of 28 U.S.C. §§ 2401(b), 2675(a)] when a Federal agency receives from a claimant, his duly authorized agent or legal representative" a written notice of claim. 28 C.F.R. § 14.2(a) (emphasis added). The Government has submitted affidavits stating that the USPS has no record of receiving any claim from or on behalf of Mrs. Glover during the two-year limitations period or any time thereafter, see Plybon Decl. ¶¶ 10-11; Gallaudet Decl. ¶¶ 4-5,² and plaintiffs do not dispute the accuracy of those statements. In a pre-motion letter dated May 14, 1999, plaintiffs' attorney acknowledged that no claim had been made on behalf of Mrs. Glover as of that date, but stated that in light of the fact that the two-year claims period had not yet expired at that point, he would be filing a claim on her behalf within the next five days. (See Letter from Plaintiffs' Counsel to Chambers of 5/14/99.) Plaintif...