Ortiz-Lebron v. United States
| Decision Date | 14 December 2012 |
| Docket Number | Civil No. 10-1513 (SEC) |
| Parties | ISIDRA ORTIZ-LEBRON, ET AL., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Before the Court are the defendant's motion to dismiss (Docket # 105), the plaintiffs' opposition thereto (Docket # 112), and the defendant's reply (Docket # 118). After reviewing the filings and the applicable law, the defendant's motion is GRANTED in part and DENIED in part.
In this tort suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680, the plaintiffs seek damages in connection with the shooting death of Orlando González-Ortíz, an officer of the Police of Puerto Rico. The plaintiffs are the decedent's relatives: Isidra Ortiz-Lebron (mother), Angel H. Gonzalez-Gonzalez (father), and Angel Gonzalez-Ortiz (brother) (collectively, "Plaintiffs"). The facts, as alleged by Plaintiffs, follow.
The shooting occurred on the night of August 7, 2008, near a parking lot in San Juan, Puerto Rico, in the course of a law-enforcement operation launched by the Federal Bureau of Investigation ("FBI") to rescue a kidnapping victim and apprehend the perpetrators. Docket # 4, ¶¶ 10-13, 15-17, 19, 22. That night, the decedent and his partner were at the scene of the operation and, according to the complaint, were instructed to await "the money drop and attempt to apprehend the kidnappers." Id. ¶¶ 11-12. After "the operation started," FBI vehicles "began to move," "the suspects' car slammed into them," and the decedent and his partner "got out of their car" and were "around." Id. ¶¶ 16-18.
According to the complaint, FBI Special Agent Jared Hewitt then approached the decedent, "pointed his gun," and shot him twice. Id. ¶¶ 19 & 22. After the shooting, the decedent's partner could hear his "lungs rasping, gasping for air." Id. ¶ 26. An ambulance was called, "which arrived very quickly." Id. ¶ 27. But it was too late: Gonzalez-Ortiz was declared death upon arrival at the hospital Id. ¶ 31.
Shortly thereafter, the FBI described the decedent as a hero, fallen in the line of duty and honored him posthumously. Id. ¶ 41.Then, in August 2009, the Commonwealth filed criminal charges against Hewitt for "cardinally negligent homicide," but the United States removed the state charges against Hewitt to this district court, whereupon the FBI decided not to bring criminal charges against him. Id. ¶¶ 44-46.
Plaintiffs presented their administrative claim to the FBI through a letter signed by their counsel and dated July 2, 2009. Docket # 105-1, p. 11. The letter stated in pertinent part:
As a result of the untimely death of Agent Gonzalez Ortiz, his mother, father, and brother have suffered and continue to suffer severe mental pain and suffering, requiring continuing professional assistance. . . . The damages suffered by . . . [Plaintiffs], therefore call for compensation in an amount of not less than one million dollars each. Id., p. 12.
Thereafter, on December 7, 2009, the FBI, through counsel, wrote to Plaintiffs' counsel, requesting evidence of his "authority to present claims on behalf of each individual." Id., p. 8. The FBI also requested "evidence or information to support your claim for damages in the amount of not less than one million dollars for each claimant." Id.1
Plaintiffs' counsel wrote back to FBI's counsel on February 25, 2010, enclosing the requested written authorization of representation. Id., p. 3. He further stated that Id.
On March 4, 2010, FBI's counsel called Plaintiffs' counsel "to discuss the administrative claims . . . [and] advise[] . . . [him] that the authority of the FBI's Office of the General Counsel to settle claims is far below the amount you requested for each claimant." Id., p. 1.2 The affidavit submitted by Plaintiffs' counsel describes that telephone conversation as follows:
The conversation was very cordial and she [the FBI's counsel] advised the undersigned that the kind of authority that she had to make an offer for an extrajudicial settlement of our clients' claims was way too low in reference to the amounts being claimed in our letter of July 2, 2009, and that we might as well go ahead and file the complaint in court. I thanked her for her candidness, and stated that indeed we would proceed to file the claim in court. Although the FBI's letter to us of December 7, 2009 had requested . . . [additional] information . . . , during our conversation the FBI attorney did not mention that request. If she had, I would have politely brought to her attention that because Orlando was dead, we have no reports from an attending physician, no prognosis, no nature and extent of treatment, no degree of temporary or permanent disability, no hospitalization period, no itemized bills for medical, dental and hospital expenses, no necessity for future treatment, etc. But the fact is that that portion of the FBI's letter was not discussed during our brief telephone conversation. I honestly took that portion of the letter as boilerplate paragraphs of a form letter, patently inapplicable to our case. Docket # 130, pp. 3-4.
The FBI's counsel also submitted an affidavit regarding her recollection of the aforementioned phone call: "I have neither recollection, nor record, of telling . . . [Plaintiffs' counsel] during the March 4, 2010 telephone conversation that he "'might as well file the Complaint . . . .'" Docket # 130-1, p. 5.
That same day, the FBI's counsel wrote back to Plaintiffs' counsel, acknowledging receipt of the requested documents evincing authorization of representation. She noted, however, that Plaintiffs' counsel had failed to "submit, as requested, any evidence or information to support the claims for damages in the amount of not less than one million dollars for each claimant." Id. (citation omitted).
Plaintiffs then filed the complaint on June 10, 2010. Docket # 4. Seeking damages on their own behalf, Plaintiffs sued the United States on the sole ground that Hewitt committed negligence under Puerto Rico law when he shot the decedent.3 The decedent's parents, as putative heirs, also asserted an "inherited claim," on behalf of the decedent, for the suffering he experienced between the shooting and his death. After the United States answered the complaint (Docket # 21), the parties proceeded with discovery and settlement negotiations.
As the case proceeded, Plaintiffs filed an amended complaint on May 22, 2012, reiterating their damages claims based on the decedent's pain and suffering between the shooting and his death. Docket # 100, ¶¶ 10, 77-79. While the amended complaint is mostly identical to the original one, there is a significant difference. For the first time, Plaintiffs allege that the United States' negligence also stems from the manner in which the FBI conducted the underlying kidnapping investigation and the related arrest-and-rescue operation during which the shooting occurred. See, e.g., id. ¶¶ 69, 72-75 (alleging "poor planning" in regard to the operation and ascribing negligence to the "federal government" based on its alleged failures to"assur[e] that all the officers involved in the operation knew each other," to "know[] of the involvement of the Puerto Rican officers in the rescue operation," to "disseminate that information," to "hav[e] air surveillance," and to "assur[e] a clear chain of command"). Notably, according to the amended complaint, then Special-Agent-in-Charge of the FBI's San Juan Field Office, Luis Fraticelli, attended Gonzalez's funeral, where he told the Puerto Rico Police Chief "that the federal government was going to have to pay at least two million dollars to compensate Orlando's family for their loss." Id. ¶ 60.
Advancing a myriad of arguments, the government moved to dismiss in June 2012. Docket # 105. Because Plaintiffs neither furnished the supplementary documentation requested by the FBI nor included in their administrative a "sum certain," the government posits, Plaintiffs failed to exhaust their administrative remedies with the FBI prior to filing their FTCA action against the United States in federal court. The government also alleges that Plaintiffs did not exhaust administrative remedies regarding (1) the claim seeking damages for the decedent's pre-death pain and suffering; and (2) the new negligence claims in the amended complaint challenging the manner in which the FBI undertook the underlying investigation and subsequent operation. Alternatively, the government argues that the new negligence claims "must be dismissed because they lack a 'private party analogue,' 28 U.S.C. § 1346(b)(1), in Puerto Rico law and, in any event, run head-on into the FTCA's 'discretionary function' exception, 28 U.S.C. § 2680(a)." Id., p. 6. Finally, the government contends that, inasmuch as the decedent's mother seeks recovery for her son's lost future earnings—solely in her capacity as "heir" and as part an "inherited" claim estate—such a cause of action fails as a matter of Puerto Rico law and therefore should be dismissed.
The plaintiffs opposed all of the defendant's contentions. The court addresses the parties' colliding arguments seriatim.
Fed. R. Civ. P. 12(b)(1) is the appropriate vessel for challenging a court's subject-matter jurisdiction. Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). Inreviewing a motion to dismiss under this rule, the court construes the plaintiffs' allegations liberally and "may consider whatever evidence has been submitted, such as . . . depositions and exhibits." Carroll v. United States, 661 F.3d 87, 94 (1st Cir. 2011) (internal quotation marks and citations omitted). Accordingly, this court is empowered to "[w]eigh the...
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