Talavera v. United States
| Decision Date | 17 August 2016 |
| Docket Number | CIVIL ACTION NO. 4:14-CV-03329 |
| Parties | IGNACIO TALAVERA Plaintiff v. UNITED STATES OF AMERICA |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court in the above-referenced Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, case is Defendant United States of America's ("United States") Motion to Dismiss or for Summary Judgment (Doc. 10) and Plaintiff Ignacio Talavera's ("Talavera") Motion to Refer to Alternative Dispute Resolution (Doc. 14). Upon review of the motions, responses thereto,1 the relevant legal authority, and for the reasons explained below, the Court finds that Defendant's motion should be granted. Plaintiff's motion is denied.
On July 19, 2012, Talavera was stopped in his vehicle when he was struck from behind by United States Postal Service ("USPS") driver Ronald Jackson ("Jackson"). (Doc. 10 at 1.) Because Jackson was within the scope of his employment at the time of the incident, USPS paid $357.23 to Talavera's employer for damage to a trailer-hitch coupler and $4,183.09 to Texas Mutual Insurance Company as reimbursement for workers' compensation benefits paid to Talavera. (Id. at 1-2.) Talavera subsequently submitted an administrative claim to USPS on September 9, 2013, well within the FTCA's two-year statute of limitations. (Id.) Before receiving a response from USPS as to his claim, however, Talavera's counsel filed a negligencelawsuit in state court against Jackson and USPS on March 17, 2014, asserting that Talavera was injured by Jackson while Jackson was in the course and scope of his employment for USPS. (Docs. 11 at ¶ 10; 11-5 at ¶ 7.)
The next day, March 18, 2014, USPS formally denied Talavera's administrative claim by sending a denial letter via certified mail with return receipt requested. (Doc. 10 at 3.) This letter advised Talavera of his right to file suit in district court under the FTCA if he was dissatisfied with USPS's decision.2 (Id.) Talavera's counsel, the Dunk Law Firm, received the letter on March 21, 2014. (Doc. 10-1 at 9-11.) Just over a month later, on April 24, 2014, Talavera filed a motion for substitution of counsel. (Doc. 12-2.) A few days after that,3 Talavera attempted to serve process in his state-court suit on Jackson and USPS at a USPS retail location by leaving a "Citation Corporate" addressed to the "United States Postal Service By Serving Its Registered Agent at 8205 Braesmain Houston TX 77025" on the counter. (Doc. 12-3.) However, no one on the premises was authorized to receive service for either Jackson or USPS. (Id.)
On November 3, 2014, the state court granted the United States' motion to dismiss forlack of subject-matter jurisdiction. (Doc. 11 at ¶ 13.) Talavera subsequently filed suit in this Court on November 20, 2014, more than eight months after USPS sent his denial letter, seeking $115,000,000 in damages. (Doc. 10 at 4.) Invoking the FTCA's statute of limitations, the United States now moves for a motion to dismiss or for summary judgment on the grounds that Talavera failed to properly file his claim within six months of receiving the notice of the denial of his administrative claim. (Doc. 10.)
Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject-matter jurisdiction. Fed R. Civ. P. 12(b)(1). The party asserting that subject-matter jurisdiction exists, here the plaintiff, must bear the burden of proof by a preponderance of the evidence for a 12(b)(1) motion. New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008) (citation omitted); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted). In reviewing a motion under 12(b)(1) the court may consider "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
A motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) is characterized as either a "facial" attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a "factual" attack, i.e., the facts in the complaint supporting subject-matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, at *3 (E.D. Tex. Jan. 6, 2011) (citing Rodriguez v. Texas Comm'n of Arts, 992 F. Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 279 (5th Cir.2000)). A facial attack occurs when a defendant files a Rule 12(b)(1) motion without accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In these attacks, allegations in the complaint are simply taken as true. Blue Water, 2011 WL 52525, at *3 (citing Saraw P'ship v. United States, 67 F.3d 567, 569 (5th Cir. 1995)).
In contrast, a defendant making a factual attack may provide supporting affidavits, testimony, or other admissible evidence to show that subject-matter jurisdiction is lacking. Paterson, 644 F.2d at 523. To satisfy his burden of proof, the plaintiff may then respond by submitting evidence to show that subject-matter jurisdiction does in fact exist. Id. At this point, the court may consider any evidence submitted by the parties that is relevant to the issue of jurisdiction. Id. (citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989)). However, the court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Robinson v. Paulson, H-06-4083, 2008 WL 4692392, at *10 (S.D. Tex. Oct. 28, 2008) (citing Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997)). This is so because:
Unlike in a facial attack where jurisdiction is determined upon the basis of allegations of the complaint, accepted as true[,] when a factual attack is made upon federal jurisdiction, no presumption of truthfulness attaches to the plaintiffs' jurisdictional allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In a factual attack, the plaintiffs have the burden of proving that federal jurisdiction does in fact exist.
Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981) (citation omitted).
In resolving a factual attack on subject-matter jurisdiction under Rule 12(b)(1), the district court, which does not address the merits of the suit, has significant authority "'to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Robinson, 2008 WL 4692392, at *10 (). Thus, a court may sua sponte raise a Rule 12(b)(1) motion todismiss for lack of subject-matter jurisdiction at any time. Westland Oil Dev. Corp. v. Summit Transp. Co., 481 F. Supp. 15, 19 (S.D. Tex. 1979) (citations omitted), aff'd, 614 F.2d 768 (1980). See also Kidd v. Sw. Airlines Co., 891 F.2d 540, 545 (5th Cir. 1990) (). The Court's dismissal of a case for lack of subject-matter jurisdiction is not a judgment on the merits and does not preclude the plaintiff from pursuing his claim in a court that properly has jurisdiction. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).
Summary judgment is proper if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute over such a fact is genuine if the evidence presents an issue "that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Initially, the moving party bears the burden of identifying evidence that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmovant bears the burden of proof at trial, the movant need only point to the absence of evidence supporting an essential element of the nonmovant's case; it does not have to support its motion with evidence negating the case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 323). The nonmovant then can defeat the motion for summary judgment only by identifying specific evidence of a genuine issue of material fact. Anderson, 47 U.S. at 248-49 (internal citation and quotation marks omitted).
Talavera asserts that he abided by the statutory requirements of the FTCA by writing tothe appropriate federal agency within two years of the accrual of his claim and filing suit in state court within six months of the mailing date of the final denial of his claim. (Doc. 11 at ¶¶ 9-10.) He further claims that at the time the denial letter was received by the Dunk Law Firm on March 21, 2014, the firm was no longer representing him and, therefore, he never received notification. (Id.
at ¶ 10.) Talavera asserts that USPS was aware that he had a new attorney after denying his claim but failed to provide new counsel with information about the denial, knowing that Talavera only had six months to file suit. (Id. at ¶ 11.) Talavera argues that since notice of the denial of his claim was never received, the six-month deadline could not have run. (Id. at ¶ 15.) In the alternative, Talavera avers that the statute of limitations should be tolled due to USPS's failure to notify new counsel of the denial, waiting seven months before filing a motion to dismiss or motion for summary judgment with the state court, and not removing the case to federal court despite knowing it was the proper forum. (Id. at ¶ 16.)
The FTCA acts as a...
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