Holloway v. United States, Civil No. 15-30016-MGM

• Decision Date: 17 March 2016
• Docket Number: Civil No. 15-30016-MGM
• Parties: ERROL HOLLOWAY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Massachusetts

ERROL HOLLOWAY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Civil No. 15-30016-MGM

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

March 17, 2016

MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANT'S MOTION TO DISMISS

(Dkt. Nos. 8 and 22)

MASTROIANNI, U.S.D.J.

Plaintiff alleges he suffered injuries at a federally funded health center on June 22, 2012. On April 8, 2014, Plaintiff's counsel filed an administrative claim with the Department of Health and Human Services ("DHHS"). The submission did not include the amount of damages sought in a sum certain, which is required for a claim to be properly presented under the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 2675; 28 C.F.R. § 14.2(a). On August 14, 2014, Plaintiff's counsel amended the submission to include a sum certain, but this was beyond the two-year limitations period for presentment. 28 U.S.C. § 2401(b). On August 21, 2014, DHHS sent a letter denying Plaintiff's claim, stating the evidence failed to establish that Plaintiff's alleged injuries were due to the negligence of a federal employee.

Plaintiff then filed a complaint in this court. (Dkt. No. 1.) Defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (Dkt. No. 8.) In a Report and Recommendation (Dkt. No. 22, "R&R"), Magistrate Judge Katherine A. Robertson recognized that, following the Supreme Court's decision in United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015), dismissal must be sought on substantive grounds under Fed. R. Civ. P. 12(b)(6) or Fed R. Civ. P. 56. Judge Robertson recommended the court convert Defendant's motion to dismiss into a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d) and further recommended that such motion be allowed due to Plaintiff's failure to satisfy the FTCA's presentment requirement. After Judge Robertson issued the R&R, Plaintiff filed a timely objection, and Defendant filed a response to the objection. (Dkt. Nos. 23-24.) For the reasons set forth below, the court adopts the R&R in full and allows Defendant's motion for summary judgment.

Plaintiff's objection to the R&R raises two arguments. First, Plaintiff contends Judge Robertson erroneously relied on precedent from this court and the First Circuit regarding the FTCA's presentment requirement without recognizing factual distinctions between the precedent cases and the instant action. The cases from this court and the First Circuit cited in the R&R are squarely on point, however, and require denial of Plaintiff's claim. See, e.g., Magdalenski v. United States, 977 F. Supp. 66, 70 (D. Mass. 1997) ("At bottom, a claim that does not provide information as to an individual's claimed damages is wholly deficient under the standards set forth in 28 U.S.C. § 2675(a) and 28 C.F.R. § 14.2(a)."). Plaintiff argues none of the cases addressed an instance in which a sum certain was inadvertently omitted by a claimant. While the cases typically deal with closer calls than this case, they are clear that claims entirely failing to include a sum certain, like Plaintiff's claim, must be denied. See, e.g., Coska v. United States, 114 F.3d 319, 322 (1st Cir. 1997) ("In none of the cases [plaintiff] cites, where this court has allowed a claim to proceed despite a dispute over the fulfillment of the sum certain requirement, had the plaintiff completely failed to assert explicitly a damage amount against the United States."). Plaintiff's case is subsumed by the logic of the precedent cases, not distinguishable from them. Thus, this argument is without merit.

Second, Plaintiff argues Judge Robertson erroneously discounted the fact that Plaintiff's administrative claim was rejected on its merits when she concluded that the presentmentrequirement was not satisfied. According to Plaintiff, courts "look[] to whether the agency's investigatory purposes were satisfied. In doing do, the courts have uniformly looked to the manner in which the agency disposed of the claim." (Dkt. No. 23 at 5.) While this argument may have some intuitive appeal, it finds little support in the cases cited.

In Kokaras v. United States, 980 F.2d 20, 21 (1st Cir. 1992), the plaintiffs listed a property damage claim of $2,906.61, wrote "to be determined" in the space for their personal injury claim, and wrote nothing in the space requesting a total sum. The agency denied the plaintiffs' claims "on the ground that it was invalid, stating that 'it does not inform us to [sic] any dollar amount being claimed.'" Id. The First Circuit upheld this denial with respect to the plaintiffs' personal injury claim, but found that the plaintiffs had presented a sum certain for their property damage claim. Id. at 23. Far from relying on the manner of the agency's disposition, the Kokaras court treated the two claims differently based on the existence of a sum certain even though the agency treated the claims identically as it disposed of them. In Coska v. United States, 114 F.3d at 322, after the plaintiff failed to provide any information from which a sum certain could be determined, the First Circuit noted that the agency "apparently denied the claim by letter." While the court stated the agency had previously asked the plaintiff to specify a sum certain, see id. at 321, there is no indication the court relied on or even considered the grounds upon which the agency's denial rested. The Coska court simply denied the plaintiff's claim for failure to present a sum certain, noting that the "essential information" of "the amount of damages being sought from the United States" was missing from the plaintiff's submissions to the agency. Id. at 323. Both Kokaras and Coska support denying a claim that entirely fails to set forth a sum certain.

In Corte-Real v. United States, 949 F.2d 484, 485 (1st Cir. 1991), the agency's denial of the plaintiff's claim stated "that the claim had been improperly filed because it did not state a sum certain." But while the First Circuit found the plaintiff in that case had sufficiently identified a sumcertain by writing "$100,000" and "$100,000 plus" on his claim form, it also stated "the importance and absolute necessity of adherence to the sum certain requirement." Id. at 486. In other words, the fact that the plaintiff satisfied the sum certain requirement did not make it any less of a requirement.

In Kokaras, the First Circuit did state that "[o]ur decision in Corte-Real supports saving a claim that is flawed, where the government's investigatory needs are satisfied." Kokaras, 980 F.2d at 23. As the First Circuit observed in Cosk...