Murphy v. Cooper
| Docket Number | 1:21-cv-00211-MLG-SCY |
| Decision Date | 11 September 2023 |
| Parties | DENNIS MURPHY, as Personal Representative of THE ESTATE OF ANGELICA BACA, and JAMES DALLAS WICKER, as parent and guardian of J.D.B., and as guardian of R.C.B., Plaintiffs, v. CALVIN COOPER and THE UNITED STATES OF AMERICA, Defendants. |
| Court | U.S. District Court — District of New Mexico |
This matter is before the Court upon Defendant United States of America's Motion to Dismiss and Motion for Summary Judgment, filed April 6, 2022. Doc. 32. The Motion seeks dismissal of the loss of consortium claims and summary judgment on the negligence claim brought by Plaintiffs, the Estate of Angelica Baca (“the Estate”) and Baca's children, J.D.B. and R.C.B. (“Minor Plaintiffs”). Following briefing and a motion hearing on the issues, the Court concludes that Minor Plaintiffs did not satisfy the statutory prerequisites necessary to comply with the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, prior to filing suit and the Court is without subject matter jurisdiction to hear those claims. See Fed.R.Civ.P. 12(b)(1). The Court grants the United States' motion to dismiss as to the loss of consortium claims. The Court grants the United States' motion for summary judgment as to Plaintiffs' negligence claim because the Amended Complaint, Doc. 27, does not relate back to the Original Complaint, Doc. 1. See Fed.R.Civ.P. 15(c).
On March 23, 2019, Calvin Cooper was driving down Louisiana Boulevard at a high rate of speed after leaving Kirtland Air Force Base. Doc. 27 at 2. Cooper attempted to pass another vehicle and struck Baca as she was crossing Louisiana Boulevard on foot. Id. Baca died as a result of the collision. Id.
Exactly one year later, on March 23, 2020, Baca's Estate submitted a “Claim for Damage, Injury or Death,” or a Standard Form 95 (“SF-95”), and a supplemental letter (“Claim Letter”) to the United States Air Force. See Doc. 33-2; 33-3. The Estate claimed that the Air Force did not properly mark the drive path on Louisiana Boulevard during construction and that these conditions were a contributing factor in Baca's death. Id. On October 8, 2020, the Air Force sent the Estate a letter denying the claim. See Doc. 33-4. That correspondence advised the Estate it could “file suit in an appropriate United States District Court not later than six months after the date of the mailing of this letter.” Id.
On March 10, 2021, Plaintiffs filed their Original Complaint in the United States District Court for the District of New Mexico. Doc. 1. That pleading raised various causes of action including, inter alia, claims for negligence against the Air Force and loss of consortium on behalf of Minor Plaintiffs. Id. at 3-5. The Estate did not timely serve the Air Force and on June 14, 2021, the Court issued an Order to Show Cause, Doc. 3, noting that Plaintiffs had not yet served Defendants in accordance with Federal Rule of Civil Procedure 4(m) (). Plaintiffs responded to the Order to Show Cause explaining that software updates and difficulties locating Cooper had resulted in delayed service. Doc. 4 at 1. The Court subsequently extended the Rule 4(m) period by sixty days (until September 7, 2021). Doc. 5.
Later that same summer, on July 8, 2021, Plaintiffs attempted (erroneously) to serve the Air Force by leaving a copy of the Complaint and summons with a desk sergeant at Kirtland Air Force Base. Docs. 6, 7. When the Air Force did not answer or otherwise respond to that filing, the Magistrate Judge set the matter for a status conference. Doc. 20. Thereafter, in a limited entry of appearance, the Assistant United States Attorney (“AUSA”) told the Court that the Air Force had not been served with the summons and Complaint pursuant to Federal Rule of Civil Procedure 4(i)(1)(A)(ii) and (B), and that Plaintiffs had failed to mail service to the agency as Rule 4(i)(2) requires. Doc. 23 ¶ 3. The AUSA alleged additional procedural errors. She claimed that Plaintiffs failed to include a copy of the summons in their mailing to the United States Attorney's Office for the District of New Mexico (“USAO”), and that the USAO received only a copy of the Complaint and a cover letter dated September 24, 2021. Doc. 23 ¶ 1. The Attorney General was mailed the Complaint and the cover letter, but again no summons was included. Id. There is no indication that the USAO or the Attorney General were served before September 7, 2021.
On November 29, 2021, Plaintiffs filed an unopposed motion to amend their Original Complaint. See Doc. 25. The sole purpose of the amendment was to substitute the United States as the proper defendant in place of the Air Force. Id. ¶¶ 2, 4. The Court granted the motion the next day. Doc. 26. Plaintiffs filed their Amended Complaint on January 17, 2022. Doc. 27. The Amended Complaint alleges the same claims for relief as the Original Complaint. Compare Doc. 1 with Doc. 27.
Then, on February 7, 2022,[1]Plaintiffs finally served the USAO. Doc. 30.[2] (3) Plaintiffs' demands for punitive damages and prejudgment interest should be dismissed insofar as those damages pertain to pending FTCA claims; and (4) Plaintiffs' demand for a jury trial should be stricken.[3]Doc. 32 at 1. These matters are addressed in turn below.
“The FTCA gives federal district courts jurisdiction over claims 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'” Sheridan v. United States, 487 U.S. 392, 398 (1988) (quoting 28 U.S.C. § 1346(b)). However, “[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies,” as provided by 28 U.S.C. § 2675(a).[4] McNeil v. United States, 508 U.S. 106, 113 (1993). Specifically, the relief afforded to a plaintiff who sues under the FTCA is conditioned on satisfying the administrative notice requirements, including the provision of “(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim.” Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) (quoting Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005)). These notice requirements are jurisdictional and cannot be waived. Trentadue, 397 F.3d at 852; see also 28 U.S.C. § 1346(b).
The Estate submitted a SF-95 and the Claim Letter to the Air Force on March 19, 2020.[5]Docs. 33-2; 33-3. Those documents graphically describe the injuries resulting in Baca's death but are silent regarding loss of consortium claims or the value of those claimed damages. Id. Plaintiffs do not dispute this point. Indeed, they concede, “The narrative response in Box 10 refers only to . . . Baca's bodily injuries and does not mention any injuries suffered by Minor Plaintiffs as a result of her death such as loss of consortium.” Doc. 32 ¶ 8 (admitted in Doc. 35 ¶ 3). Plaintiffs also admit that Minor Plaintiffs are “not listed as claimants or mentioned anywhere on the SF-95,” as Section 2675(a) requires. Doc. 38 ¶ 6 (admitted in Doc. 35 ¶ 1). Thus, there is no dispute that Minor Plaintiffs failed to file a written statement describing their injuries or claimed damages sufficient to meet the requirements of 28 U.S.C. § 2675(a).[6]
Notwithstanding these deficiencies, Plaintiffs argue that the loss of consortium claim is derivative of the Estate's wrongful death claim as detailed in the SF-95, and for this reason, a separate claim is not necessary. Doc. 35 at 4. But this position is inconsistent with New Mexico law. Loss of consortium constitutes a standalone cause of action that is separate from a wrongful death claim. See State Farm Mut. Auto. Ins. Co. v. Luebbers, 2005-NMCA-112, ¶ 37, 138 N.M. 289, 119 P.3d 169 (). And other courts in this district have rejected similar claims. See Skeet v. United States, No. CIV-10-010-RB/WDS, 2012 WL 12884644, at *3 (D.N.M. Jan. 23, 2012) (); Dukert v. United States, Civil No. 14-506 WJ/WPL, 2016 WL 10721258, at *5-7 (D.N.M. Jan. 5, 2016) (); McNeese v. United States, No. 1:17-cv-01164 KWR/KK, 2020 WL 365038, at *3 (D.N.M. Jan. 22, 2020) (). Plaintiffs provide no convincing reason to depart from this authority.
Plaintiffs also contend that the United States was on notice that Minor Plaintiffs suffered from the loss of Baca's guidance...
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