State Farm Mut. Auto. Ins. Co. v. U.S.

• Decision Date: 23 July 2004
• Docket Number: No. CV-03-162 (NGG).,CV-03-162 (NGG).
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY a/s/o Alexander Esposito, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

326 F.Supp.2d 407

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY a/s/o Alexander Esposito, Plaintiff, v. UNITED STATES of America, Defendant.

No. CV-03-162 (NGG).

United States District Court, E.D. New York.

July 23, 2004.

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Jonathan Herman Kaufman, Serpe, Andree & Kaufman, Huntington, NY, for Plaintiff.

Catherine Mary Mirabile, U.S. Attorney's Office, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

GARAUFIS, District Judge.

State Farm Mutual Automobile Insurance Company ("plaintiff"), as subrogee of Alexander Esposito ("plaintiff's subrogor"), filed this civil action against the United States of America ("defendant") under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2401(b), 2671 et seq. The defendant has moved to dismiss the complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1). The plaintiff has filed a cross-motion seeking an enlargement of time to perfect process under FRCP 6(b)(2). For the following reasons, both motions are denied.

I. STANDARD OF REVIEW

When considering a motion to dismiss for lack of subject matter jurisdiction, the court accepts as true all material factual allegations in the complaint and refrains from drawing "argumentative inferences" in favor of the party contesting jurisdiction. Atlantic Mut. Ins. Co. v. Balfour Maclaine Intern. Ltd., 968 F.2d 196, 198 (2d Cir.1992) (internal citations omitted). Moreover, under FRCP 12(b)(1), the court may consider evidentiary matters presented outside the pleadings, by affidavit or otherwise. Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). For the purpose of considering this motion, the court has considered as true all the material factual allegations in the plaintiff's complaint. The court has also considered the various affidavits presented by the parties. Since the motions filed concern the subject matter jurisdiction of the court, this Memorandum and Order is limited to the question of jurisdiction.

II. BACKGROUND

A. Factual and Procedural History

On August 21, 2000, the plaintiff's subrogor was lawfully driving his motor vehicle across the Verrazano Bridge, in Kings County, New York. Plaintiff's Complaint ("Pl.Compl.") at ¶ 3; Plaintiff's Memorandum of Law ("Pl.Br.") at Exhibit ("Ex.") A. The plaintiff's subrogor's motor vehicle was negligently struck by a vehicle owned by the Navy and operated by an employee of the Navy acting within the scope of his employment. Pl. Compl. at ¶ 4. The plaintiff's subrogor sustained property damage and personal injuries. Pl. Br. at 4. On August 20, 2002, the plaintiff filed a "Notice of Claim" with a Tort Claim Administrator of the United States Department of Navy ("Navy"). Pl. Br. at 4, Ex. B. In the Notice of Claim, the plaintiff included an accident report, the plaintiff's payout sheet to the plaintiff's subrogor, calculations of the plaintiff's subrogor's lost wages, as well as the plaintiff's subrogor's application for a no-fault insurance payment from the plaintiff. Id.

On September 24, 2002, the Navy denied the plaintiff's claim for recovery, indicating that the defendant could not be held liable under the New York State "no fault" automobile insurance statutes, because no corresponding Federal statute existed. Memorandum of Law in Support of Defendant's Motion to Dismiss the Complaint ("Def. Br.") at 2; Declaration of Gregory R. McCracken ("McCr. Decl.") at Ex. B. In its letter denying the plaintiff's claim, the Navy indicated that the plaintiff "may file suit in the appropriate Federal District Court not later than six months after the date of the mailing of this notification." McCr. Decl. at Ex. B. On October 10, 2002, the Navy received the plaintiff's written request for reconsideration of the Navy's decision. Def. Br. at 2; McCr. Decl. at Ex. C. On November 4, 2002, the Navy granted the plaintiff's request for reconsideration, referring in its correspondence to a conversation with the plaintiff's attorney regarding reconsideration. McCr. Decl. at Ex. D. The Navy requested additional information from the plaintiff. Id. The plaintiff states that it "does not have" the letter granting reconsideration. Pl. Br. at 5.

On January 10, 2003, the plaintiff filed a complaint in the United States District Court for the Eastern District of New York, seeking relief under the FTCA. Pl. Br. at 5, Ex. E. On March 11, 2003, the Navy reversed its reconsideration of the plaintiff's claim, indicating that it did so because the plaintiff had filed suit. McCr. Decl. at Ex. E. On February 27, 2004, the defendant moved to dismiss the plaintiff's complaint for lack of subject matter jurisdiction.

B. The FTCA's Jurisdictional Requirements

The United States of America, as sovereign, is immune from suit "save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Accordingly, the United States can only be sued to the extent that it has waived its sovereign immunity by statute. See Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir.1998), citing Sherwood, 312 U.S. at 586, 61 S.Ct. 767. The FTCA, which authorizes tort claims against the United States, "constitutes a limited waiver by the United States of its sovereign immunity." Haughton v. F.B.I., 1999 WL 1133346, at *4 (S.D.N.Y. Dec.10, 1999) (Jones, J.), quoting Millares, 137 F.3d at 719; see also Glover v. United States, 111 F.Supp.2d 190, 192 (E.D.N.Y.2000). In order to properly maintain a claim under the FTCA, a plaintiff must "comply with several strictly construed prerequisites to suit." Glover, 111 F.Supp.2d at 192, citing Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir.1999) (internal citations omitted). There are several such presentment requirements in the FTCA. See Willis v. United States, 719 F.2d 608, 611-12 (2d Cir.1983).

Under 28 U.S.C. § 2675(a), an action may not be instituted against the United States "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." Such a claim must be "presented in writing to the appropriate Federal agency within two years after such claim accrues." 28 U.S.C. § 2401(b). The claim filed must include a request for damages that constitutes a "sum certain." Adams ex rel. Adams v. U.S. Dept. of Hous. and Urban Dev., 807 F.2d 318, 320 (2d Cir.1986), citing Keene Corp. v. United States, 700 F.2d 836, 841-42 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); see also 55 Motor Ave. Co. v. Liberty Indus. Finishing Corp., 885 F.Supp. 410, 417 (E.D.N.Y.1994). A complaint may be filed in federal court only during the first six months after the agency mails the claimant a notice of its final denial of the claim. 28 U.S.C. § 2401(b). In order for a court to have jurisdiction over a claim under the FTCA, all of these requirements must be met. See McNeil v. U.S., 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994); see also Willis, 719 F.2d at 611-12. Failure to comply with these jurisdictional requirement results in the plaintiff's claim being "forever barred." 28 U.S.C. § 2401(b).

III. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. Presentment Requirements

The defendant claims that the plaintiff failed to meet the presentment requirements of the FTCA. The requirements of presentment under 28 U.S.C. § 2675(a) demand that the plaintiff provide the Federal agency with (1) notice of his claim sufficient to enable the agency to investigate, and (2) a sum certain for his claim. See Romulus v. United States, 983 F.Supp. 336, 340 (E.D.N.Y.1997) (discussing presentment requirements under 28 U.S.C. § 2675(a) as understood in the Second Circuit); see also Johnson ex rel. Johnson v. United States, 788 F.2d 845, 848-49 (2d Cir.1986) (holding that presentment is met when notice provides adequate information to enable agency investigation), overruled on other grounds by Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). In the instant case, the plaintiff has adequately met the presentment requirements of notice and a sum certain, under 28 U.S.C. § 2675(a).

The defendant appears not to contend that the "sum certain" component of the presentment requirements was not met. In the instant case, the plaintiff provided the Navy with a notice of claim that included a sum certain. Pl. Br. at Ex. B. The agency was given notice that the defendant's employee negligently struck the plaintiff's subrogor and that the plaintiff was seeking $14,817.49 in damages. Id. The defendant does, however, contest the sufficiency of the notice received. Specifically, the defendant claims that the plaintiff "failed to provide the Navy with information to permit the agency to conduct an investigation and estimate the claim's worth." Def. Br. at 8, citing McCr. Decl. at ¶ 7. The defendant urges the court to dismiss the complaint for lack of subject matter jurisdiction due to this alleged lack of notice. Def. Br. at 7.

To properly consider this argument, the court must look at the distinction that has been commonly drawn between the presentment requirements of 28 U.S.C. § 2675(a) and the settlement regulations promulgated under 28 U.S.C. § 2672. See Romulus, 983 F.Supp. at 339-40. Under 28 U.S.C. § 2672, the Attorney General may promulgate regulations by which the heads of Federal agencies may "consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States" under the FTCA. Following the lead of the Fifth Circuit in Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980), several circuits have determined that a plaintiff need not comply with all the regulations promulgated under §...