Santiago v. US

• Decision Date: 14 March 1995
• Docket Number: Civ. No. 92-2719 (SEC).
• Parties: Maria Acosta SANTIAGO, Plaintiff, v. UNITED STATES of America, Defendants/Third Party Plaintiff, v. MUNICIPALITY OF SAN JUAN, Third Party Defendant.
• Court: U.S. District Court — District of Puerto Rico

884 F. Supp. 45

Maria Acosta SANTIAGO, Plaintiff, v. UNITED STATES of America, Defendants/Third Party Plaintiff, v. MUNICIPALITY OF SAN JUAN, Third Party Defendant.

Civ. No. 92-2719 (SEC).

United States District Court, D. Puerto Rico.

March 14, 1995.

COPYRIGHT MATERIAL OMITTED

Juan F. Matos-Bonet, Matos-Bonet & Matos de Juan, San Juan, PR, for plaintiffs Maria Acosta Santiago, Gilberto Pagan, C/P Acosta-Pagan.

Maria Hortensia Rios-Gandara, U.S. Attys. Office, Dist. of Civ. Div., Hato Rey, PR, for defendant U.S.

ORDER

CASELLAS, District Judge.

Plaintiff, together with her husband, originally brought this action against the General Services Administration ("GSA") and the United States under the aegis of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., seeking compensation for injuries she allegedly sustained as a result of a fall suffered while walking on the sidewalk parallel to the Federico Degetau Federal Building located on Carlos Chardón Avenue, in Hato Rey, Puerto Rico ("Federal Building"). By plaintiff's account, as it appears from the complaint, her fall occurred when she tripped over the raised edge of a slab of concrete which formed the sidewalk, allegedly due to a negligently planted mahogany tree within the confines of the Federal Building.

At an appropriately early stage of these proceedings, partial judgment was entered dismissing the claims against GSA for lack of jurisdiction under the FTCA. 28 U.S.C. § 2679(a). Next, the U.S. filed a third party complaint against the Department of Transportation and Public Works ("DTOP" because of its Spanish acronym), an agency of the Commonwealth of Puerto Rico, charging that said agency was directly responsible for any damages suffered by plaintiff as a result of her fall. At that time, the U.S. apparently was under the impression that it was the DTOP who owned, administered, and/or was responsible for the upkeep and maintenance of public sidewalks. In due course however, the claims against the Commonwealth's DTOP were dismissed on January 7, 1994, after the U.S. learned through further discovery that the party charged with the responsibility for the upkeep and control of the sidewalk was in fact the Municipality of San Juan ("the Municipality"). The U.S. amended its third party complaint accordingly, including the Municipality as a third party defendant potentially liable to plaintiff on her claim.

For its part, the Municipality filed a prompt motion to dismiss (docket # 37) based on the failure on the part of the U.S. to comply with the 90-day notice requirement prescribed by the General Municipality Law of the Commonwealth, 21 L.P.R.A. § 4703(a), for claims brought against Commonwealth municipalities.¹ The U.S. timely opposed this motion, initially solely on the basis that it had filed the third party complaint against the Municipality within 90 days after it learned that the Municipality was potentially liable for plaintiff's damages. On March 22, 1994, the Court ordered the parties to file simultaneous briefs supplementing their respective pleadings on the issue of the applicability of the 90-day notice requirement to actions in interpleader. Now, with the benefit of the parties' differing points of view on the issue, we are in a position to proceed with the resolution of the issue.

The Municipality's position can be readily summarized as follows: On November 24, 1992, María Acosta Santiago and her husband filed the instant complaint against the U.S., claiming damages allegedly suffered by them as a result of her fall sustained on June 13, 1989. Service of process upon the U.S. was effected on January 2, 1993. Thereafter, the U.S. filed a third party complaint against the Municipality on August 19, 1993, without ever giving prior notice of a possible claim, in accordance with the above cited sections of the General Municipality Law. On September 1st, 1993 the Municipality was served with summons and a copy of the third party complaint. Based on this course of events, the Municipality argues that the U.S. has had "notice of the damages claimed"² since it was served with a copy of the complaint on January 2, 1993. It follows then, according to the Municipality, that the third party plaintiff's failure to serve the summons and complaint on the Municipality or otherwise give notice of the impending claim before the expiration of the ninety (90) day term in April 1993, now effectively bars the interposition of the third party complaint by the U.S.

The Government's position is predictably at odds with the Municipality's arguments. In essence, the U.S. asserts that through the impleader mechanism provided for by the Federal Rules of Civil Procedure, it may file an action against a third party, in this case the Municipality, in order to vindicate and protect its right to collect claims for contribution or indemnity from alleged joint tortfeasors. See Fed.R.Civ.P. 14; United States v. Yellow Cab Co., 340 U.S. 543, 551-552, 71 S.Ct. 399, 405, 95 L.Ed. 523 (1950). Regarding the timeliness of the third party complaint, the U.S. argues that the three-year limitations period applicable to claims for money damages brought by the U.S. which are founded in tort is the limitations period properly applicable to the instant case, and not the much shorter 90-day period found in the Commonwealth's General Municipality Law. See 28 U.S.C.A. § 2415. Accordingly, the U.S. urges this Court, in its discretion, to allow the Government to enforce its rights to contribution allegedly due it from the Municipality as joint tort-feasor, by impleading the Municipality as a third party defendant.

The Federal Tort Claims Act

The Federal Tort Claims Act was primarily intended to remove the sovereign immunity of the U.S. from suits in tort and, with limited exceptions, to render the Government liable in tort as a private individual would be under like circumstances. Richards v. U.S., 369 U.S. 1, 6, 82 S.Ct. 585, 589, 7 L.Ed.2d 492 (1962). Under the FTCA, the United States is liable on tort claims under those circumstances in which a private individual would be liable under state law. 28 U.S.C.A. §§ 1346(b), 2671-2680. Consequently, in order to make a determination on the liability of the parties, courts must apply the law of the place where the alleged negligence took place. See Vega Mena v. U.S., 990 F.2d 684 (1st Cir.1993); Mas v. U.S., 984 F.2d 527 (1st Cir.1993). In the instant case, it is the law of the Commonwealth of Puerto Rico which determines whether the ultimate facts give rise to a cause of action in favor of a claimant, including a third party plaintiff. See Azure v. U.S. Health & Human Services, supra; Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 1474, 64 L.Ed.2d 15 (1980). See also, Richards v. U.S., 369 U.S. 1, 10-11, 82 S.Ct. 585, 591-92, 7 L.Ed.2d 492 (1962) (The words "law of the place" within the context of 28 U.S.C. § 1346(b) extend the statute's reach to the whole law of the state where the negligent act occurred.)

Third Party Practice under Federal Rule of Civil Procedure 14

Where the U.S. is sued under the FTCA, it may, as a third party plaintiff, implead a person who is or may be liable to it for all or part of the claim asserted by the plaintiff against the United States. See United States v. Yellow Cab Co., supra; Native Village of Noatak v. Hoffman, 872 F.2d 1384 (9th Cir.1989); 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1450 (1990). Moreover, the Government points out that Rule 14 impleader may be allowed even — as in the instant case — where the original plaintiff would be barred by the statute of limitations from bringing an action directly against the third party defendant. Wandrey v. McCarthy, 804 F.Supp. 1384 (D.Kan.1992). For impleader to be proper however, there must be a substantive right to the relief asserted by the third party plaintiff. 6 Wright, Miller & Kane, Federal Practice and Procedure § 1450 (1990). "A defendant cannot implead a third party unless he has a proper claim against the third party under the applicable substantive law, based on plaintiff's claim of liability against defendant." Wandrey v. McCarthy, 804 F.Supp. at 1386. In this respect, the Government's right to contribution or indemnity is of course determined by Commonwealth law. Id.; Azure v. U.S. Health & Human Services, 758 F.Supp. 1382, 1384 (D.Mont.1991). Nevertheless, the procedural aspects involved in the successful prosecution of an action in impleader are controlled by Federal Rule of Civil Procedure 14, which governs third party practice in general. See United States v. Yellow Cab Co., supra; Azure v. U.S. Health & Human Services, 758 F.Supp. at 1384.

Motion to Dismiss

At bottom, the present controversy centers around the timeliness of the Government's third party complaint against the Municipality. Though seemingly innocuous, this issue presents an important question regarding the proper interaction of state and federal law within the statutory scheme of the Federal Tort Claims Act, and demands a more precise definition of the "generally interstitial character" of federal law in this context. See Richards v. U.S., supra.

The Government, for its part, suggests that the proper analysis of this case calls for the application of the three-year limitations period prescribed in 28 U.S.C. § 2415 for suits by the U.S. involving money damages based on a tort. It claims a number of advantages over private litigants in federal court due to its unique status as sovereign, most significant among which is the fact that it may not be subject to state statutes of limitations. Under the Government's rationale therefore, the 90-day notice requirement regarding tort claims against the Municipality is inapposite to the issue of the timeliness of the instant third party complaint, as its application would presumably constitute an impermissible infringement on the Government's right to bring suit against...