Boada v. Autoridad De Carreteras Y Transp.Acion

• Decision Date: 22 January 2010
• Docket Number: Civil No. 09-1930.
• Citation: 680 F.Supp.2d 382
• Parties: Guillermo Jose BOADA, et al., Plaintiffs v. AUTORIDAD DE CARRETERAS Y TRANSPORTACION, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

680 F.Supp.2d 382

Guillermo Jose BOADA, et al., Plaintiffs

v.AUTORIDAD DE CARRETERAS Y TRANSPORTACION, et al., Defendants.

Civil No. 09-1930.

United States District Court,

D. Puerto Rico.

Decided: Jan. 22, 2010.

Cesar A. Andreu, Andreu & Andreu Edif Centro de Seguros, San Juan, PR, for Plaintiffs.

Jose R. Cintron-Rodriguez, Litigation Division Puerto Rico Electric Power Authority, Jose J. Gueits-Ortiz, Department of Justice of Puerto Rico, Edgardo A Vega-Lopez, Jorge F. Blasini-Gonzalez Jimenez, Graffam & Lausell, Jose L. Ramirez-Coll, Maria Luisa Montalvo-Vera Fiddler Gonzalez & Rodriguez, P.S.C., San Juan, PR, for Defendants.

OPINION and ORDER

SALVADOR E. CASELLAS, Senior District Judge.

Pending before this Court are two motions to dismiss, one from each Co-Defendant, the United States of America ("United States")(Docket #11) and Dick Corporation of Puerto Rico, Inc. ("Dick Corporation"). Docket #16. Plaintiffs have proffered a reply in opposition to each motion (Dockets # 18 & 24). After reviewing the filings, and the applicable law, both the United States and Dick Corporation's motions to dismiss will be DENIED.

Factual & Procedural Background

On the evening of December 17, 2005 Guillermo Jose Boada Santamaria ("Boada") allegedly crashed his Dodge Caravan into a concrete barrier obstructing Puerto Rico Highway 28 in San Juan. Boada, his wife, Ximara Llorens Berrios, and their Conjugal Partnership (collectively, "Plaintiffs"), allege that the concrete block/or divider was left unmarked, unlit, and unattended, during a construction project on the roadway. Docket # 1-6 at 4. The accident caused Boada numerous injuries, and he brought suit in local court seeking to recover tort damages from the Commonwealth of Puerto Rico, and various local government dependencies, Puerto Rico Electric Power Authority ("PREPA"), Puerto Rico Department of Transportation and Public Works ("DTOP"), and the Puerto Rico Ports Authority ("PRPA") (collectively, the "Commonwealth"), along with their unnamed insurance providers, and Dick Corporation, a private government contractor.

On August 12, 2009, Commonwealth attorneys, representing DTOP, filed a thirdparty claim against the United States Army Corps of Engineers ("USACE"). Docket # 1-4. USACE then 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 Court lacks jurisdiction to entertain the third-party complaint, because said claim necessarily arises under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) & 2671 et seq, and neither Plaintiffs nor the Commonwealth have gone through the necessary steps to comply with said law's administrative exhaustion requirements.

Dick Corporation has brought a separate Motion to Dismiss alleging that it has not been properly served. Docket # 16. More specifically, it avers that only "[o]n October 19, 2009, after the case had been removed and dismissed from the Commonwealth Court, [Dick Corporation] was served with a summons issued by the Commonwealth Court and a copy of an Amended Complaint filed therein." Id. at 1. For purposes of expediency, this Court will now analyze both motions, rather than issuing separate opinions.

Standard of Review

Fed.R.Civ.P. 12(b)(1) is the proper vehicle for challenging a court's subject matter jurisdiction. Valentin v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir.2001). Under this rule, a wide variety of challenges to the Court's subject matter jurisdiction may be asserted, among them those based on sovereign immunity, ripeness, mootness, and the existence of a federal question. Id. (citations omitted). When faced with such a jurisdictional challenge, this Court 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. Immigration and Customs Enforcement Div. of Dept. of Homeland Sec, 510 F.3d 1, 8 (1st Cir. 2007).

A party faced with a motion to dismiss for lack of subject matter jurisdiction has the burden 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 as Rule 12(b)(6) motions. Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994); Torres Maysonet v. Drillex, S.E., 229 F.Supp.2d 105, 107 (D.P.R.2002). Under Rule 12(b)(1), dismissal would be proper if the facts alleged reveal a jurisdictional defect not otherwise remediable. This Court accepts all well-pleaded factual allegations as true, and draws all reasonable inferences in plaintiffs favor. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.l990)(overruled on other grounds). This Court need not credit, however, "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like" when evaluating 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 the United States acting within the scope of their employment is the FTCA, which is "... a limited waiver of sovereign immunity by the United States whereby a claimant can sue for the 'negligent or wrongful act or omission' of certain government employees." Ramirez-Carlo v. United States, 496 F.3d 41 47 (1st Cir.2007) (citing 28 U.S.C § 1346(b)(1)). The FTCA requires that as a general condition precedent to suit, all tort claims against the United States must 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 damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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 in writing and sent by certified or registered mail.... [However t]he provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third 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 dismissal, and from the plain language of the final sentence that the Commonwealth argues that this case fits into a statutory exception, and therefore should precede. Given that the general rule regarding the administrative review requirement is not contested, this Court will focus on elucidating whether the facts at bar fit into the third party claim exception. The United States' motion to dismiss did not develop its argumentation on the issue of a third party complaint, nor has it proffered a reply to the Commonwealth's response, predicated on the plain language of 28 U.S.C. § 2675(a). However, the original motion does cite West v. United States, 592 F.2d 487, 492 (8th Cir.1979), which stands for the proposition that a plaintiff cannot assert a claim directly 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 another series of cases better fits the facts at bar. See, e.g., Thompson v. Wheeler, 898 F.2d 406 (3d Cir.1990); Hassan v. Louisiana Dep't of Transp. & Dev., 923 F.Supp. 890, 893-894 (W.D.La. 1996). These establish that third-party actions under Fed.R.Civ.P. 14 seeking indemnity or 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 been directly resolved by the First Circuit, but in Thompson the Third Circuit held a "... defendant as a third party plai...