Opinion
02 CV 3888 (JG).
July 23, 2004
JONATHAN H. KAUFMAN, Serpe, Andree Kaufman, Counsellors at Law, Huntington, L.I., New York, Attorneys for Plaintiff.
ROSYLNN A. MAUSKOPF, United States Attorney, Brooklyn, NY, By: Kenneth A. Stahl, Assistant United States Attorney, Attorneys for Defendant.
MEMORANDUM AND ORDER
Plaintiff State Farm Insurance Co. ("State Farm") seeks damages for a government employee's collision with the vehicle of State Farm's insured. The government has moved to dismiss State Farm's complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The government claims that State Farm failed to satisfy the prerequisite to establishing federal subject matter jurisdiction under the Federal Tort Claims Act ("FTCA") by presenting an administrative claim to the appropriate federal agency within two years of the alleged injury. See 29 U.S.C. §§ 2401(b), 2675(a). For the reasons set forth below, the government's motion is granted.
BACKGROUND
On May 12, 1999, a vehicle operated by Winston Oliver, a federal employee, collided with a vehicle driven by Robert Senior ("driver") and owned by Louise Senior ("owner"). Subsequently, State Farm paid the owner $3,664.63 of basic no fault benefits. State Farm then filed a claim as subrogee, on behalf of the owner, in state court on June 13, 2000 to recover its damages. This is the action now before this Court.
On April 2, 2004, the government filed a certification with this Court that Winston Oliver was acting within the scope of his employment as an employee of the United States of America at the time of the accident. The United States was then substituted for Oliver as the party defendant pursuant to 28 U.S.C. § 2679.
On August 18, 2000, the driver submitted a claim regarding the collision to the Department of Health and Human Services ("HHS"). The driver alleged that while stopped at a traffic light, he was rear-ended by Oliver. The administrative claim alleged damages totaling $1,000,000 for personal injuries and $5,000 for property damage. The administrative claim is different than the complaint State Farm filed in state court.
The government removed the state court action between State Farm (as subrogee to the owner) and Oliver to federal court on July 3, 2002. Initial conferences dated September 3, 2002, October 25, 2002, and December 6, 2002 were all adjourned at the request of the government in anticipation of the completion of the paperwork from the administrative agency regarding the settlement of the matter in the amount of $3,664.63. On January 31, 2003, an initial conference was held before Magistrate Judge Azrack, and it appeared that the case was going to settle. Thus, on February 3, 2003, I issued an order discontinuing the action, without prejudice to the right of State Farm to reopen the action if settlement was not consummated. The settlement was never consummated. Rather, on February 17, 2004, the government moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
DISCUSSION
A. The Standard for a Motion to Dismiss under 12(b)(1)
When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a court may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional question. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir. 2001); Exch. Nat'l Bank of Chicago v. Touche Ross Co., 544 F.2d 1126, 1130 (2d Cir. 1976). Under Rule 12(b)(1), I must accept as true all material factual allegations in the complaint, but I will not draw inferences favorable to the party asserting jurisdiction. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992).
The government has moved, in the alternative, to dismiss the complaint for failure to state a claim under 12(b)(6). As I lack subject matter jurisdiction over this claim, however, the merits of the 12(b)(6) motion to dismiss need not be reached.
B. Administrative Exhaustion
"[T]he United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (internal quotation and citation omitted). Under the FTCA, the United States has waived its immunity for certain torts. See 28 U.S.C. § 1346(b) ("[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for . . . loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government. . . .").
Actions commenced pursuant to § 1346(b), however, are subject to certain limitations and exceptions, including the requirement to exhaust administrative remedies. It is a jurisdictional prerequisite that claims against the United States must first be presented to an administrative agency. Section 2401(b) provides that "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b). Similarly, § 2675(a) mandates that "an action shall not be instituted upon a claim against the United States for money damages for . . . loss of property . . . 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, 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. . . ." 28 U.S.C. § 2675(a). "The failure of an agency to make final disposition of a claim within six months after it is filed shall . . . be deemed a final denial of the claim. . . ." Id; see McNeil v. United States, 508 U.S. 106, 113 (1993) (failure to exhaust administrative remedies before bringing a claim under the FTCA deprives a district court of subject matter jurisdiction over the claim); Adams v. H.U.D., 807 F.2d 318, 321 (2d Cir. 1986) (requirements of 28 U.S.C. § 2675(a) are jurisdictional in nature, must be strictly construed, and cannot be waived); Romulus v. United States, 983 F. Supp. 336 (E.D.N.Y. 1997), aff'd, 160 F.3d 131 (2d Cir. 1998).
The purpose of this exhaustion requirement is not to make recovery from the government technically more difficult, but rather "to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States." S. Rep. No. 89-1327, at 2516 (1966).
C. State Farm's Claim
The government argues that the Court lacks subject matter jurisdiction over this case because State Farm failed to satisfy the exhaustion requirement by filing a claim with the appropriate federal agency prior to commencing this action. I agree.
State Farm filed its complaint against the federal employee in state court on July 12, 2000, seeking damages for property damage in the amount of $3,664.63. It did not first file an administrative claim. While it is true that an administrative claim was filed with the HHS on August 18, 2000 by the driver of the insured's vehicle (seeking $1,005,000 in damages), that is not the same claim presented here, and, in any event, it was filed after State Farm commenced this action.
In Nin v. Liao, No. 02 Civ. 8308 (JCF), 2003 WL 21018816 (S.D.N.Y. May 5, 2003), the plaintiff commenced her lawsuit in state court on September 21, 2001, without having first filed an administrative claim. The administrative claim was not filed with the appropriate federal agency until December 11, 2002. In the interim, the government removed the case to federal court. The court dismissed the case for failure to exhaust, despite Mrs. Nin's claim that administrative remedies had been exhausted, because, it reasoned, "a lawsuit cannot be instituted until [an] agency denies the claim or until six months have passed without a final disposition." Id. at *4. The same is true here. Even if the administrative claim were for the $13,664.63 property damage suffered by the owner — the claim at issue here — the filing of the claim after suit was commenced does not satisfy the exhaustion requirement.
State Farm has not seriously contested otherwise. Instead, it first argued that the government's motion should be denied and asked me to review the case file and to enforce the settlement. I was not persuaded by this argument. It seems to me that a settlement reached subject to the agency's approval never received that approval. Rather, having belatedly discovered the procedural defect in State Farm's claim, the agency moved to dismiss the case. Thus, it is by no means clear that a contract to settle the case was ever reached.
In any event, I cannot properly proceed to litigate such issues in a case over which I have no subject matter jurisdiction.
Finally, after discussion of these issues at oral argument, State Farm consented to a dismissal of the complaint. I note that, pursuant to 28 U.S.C. § 2679(d)(5), once I dismiss this action, State Farm may present an administrative claim to the HHS and then file a new action within six months of either a denial of that claim or a failure of the HHS to act upon it.See Filaski v. United States, 776 F. Supp. 115, 118 (E.D.N.Y. 1991); Egan v. United States, 732 F. Supp. 1248, 1254 (E.D.N.Y. 1990). Thus, State Farm is not prejudiced by the dismissal of its complaint.
Section 2679(d)(5) provides:
Whenever an action or proceeding in which the United States is substituted as the party defendant . . . is dismissed for failure first to present a claim pursuant to section 2675(a) . . . [the] claim shall be deemed to be timely presented under section 2401(b) . . . if (a) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (b) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.28 U.S.C. § 2679(d)(5).
For all these reasons, I grant the government's motion to dismiss for lack of subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, the government's motion to dismiss, pursuant to 12(b)(1) of the Federal Rules of Civil Procedure, is granted. Accordingly, the complaint is dismissed without prejudice. The Clerk of the Court is directed to close the case.
So Ordered.