Alicea-Baez v. United States of America (Small Business Administration)

MOTION to Dismiss for Failure to State a Claim

D.P.R.January 9, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MARÍA ALICEA-BÁEZ, Plaintiff v. SMALL BUSINESS ADMINISTRATION, RICHARD D’COSTA OFREY, his wife, JANE DOE, and the CONJUGAL PARTNERSHIP CONSTITUTED BETWEEN THEM; VICTOR ROQUE DE LA ROSA, his wife, MARIA ALEXANDRA DE LA ROSA RAMIREZ AND THE CONJUGAL PARTNERSHIP CONSTITUTED BETWEEN THEM, LEONIDES JUSTINIANO VELEZ, his wife ROSA LUZ ESTRELLA OTERO, and the CONJUGAL PARTNERHSIP CONSTITUTED BETWEEN THEM, Defendants. CIVIL NO. 16-2962-CCC MOTION TO DISMISS AND MEMORANDUM OF LAW IN SUPPORT THEREOF TO THIS HONORABLE COURT: COMES NOW Defendant, the United States of America (Small Business Administration (SBA) or United States) and without submitting to the jurisdiction of this Honorable Court, and pursuant to Rules 12(b)(1), 12(b)2) 12(b)(5) and 12 (b(6) hereby submit Defendants' Motion To Dismiss and Memorandum in Support of Motion to Dismiss based on the following; (1) failure to properly serve the United States; (2) lack of subject matter jurisdiction for failure to exhaust the available administrative remedies (3) insufficient service of process, and failure to state a claim upon which relief can be granted. as set forth below: I. Introduction and Statement of Facts 1. On September 27, 2016, the Plaintiff filed a lawsuit before the Carolina Superior Court, Case Number F AC2016-1780 to recover title and possession of a real estate property located at Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 1 of 14 2 Condominio Villas del Mar in Isla Verde, Puerto Rico (hereinafter the Isla Verde property), which she acquired in a judicial sale and claims damages in $250,000.00. The Plaintiff also claims that another real estate property located in Ciales was included as collateral for the SBA’s mortgage and that she also acquired the same through the same judicial sale in civil case 94-1479-CCC before this Honorable Court. Furthermore, the Plaintiff also, alleges that she has not been able to enter into the possession of the Isla Verde property. Generally, see Compl. and Compl. ¶ 10 for the damages claimed. (Translation ours)1. 2. Moreover, the Plaintiff further alleges that SBA ‘s mortgage was not recorded with regards to the real estate property located at Condominio Villas del Mar (a commercial property) and that the property had been sold to Mr. Richard D’Costa prior to the judicial sale. She also claims that SBA was negligent because it failed to record the mortgage encumbering the Isla Verde property before the Registrar of the Property. Generally, see, Compl. (Tranlation ours). 3. The Plaintiff alleges that the Isla Verde property has been sold four times and that the actual persons in possession of said property are Edgar Acosta Robles, Mrs. Rosa Luz Estrella Otero and the conjugal partnership constituted between them. Id. (Translation ours). 4. The Complaint has a section titled “Allegations” in which the Plaintiff alleges in ¶ 1 that SBA was negligent because it did not record the mortgage for the Isla Verde property in the Registrar of the Property Carolina Section. Id. (Translation ours). 5. In the Complaint at the Section titled “Allegations” ¶ 2, the Plaintiff alleges that SBA failed to record an attachment notice against Mr. Florentino Cosme Garcia and Mrs. Rosa Lourdes Ofrey and the conjugal partnership constituted between them. Id. (Translation ours). 6. In the Complaint at the Section titled “Allegations” ¶ 3, the Plaintiff alleges that SBA was negligent for not expropriating correctly the Isla Verde property. Id. (Translation ours). 7. In the Complaint at the Section titled “Allegations” ¶ 4, the Plaintiff alleges that SBA was 1 Although the United States had requested an extension of time until January 9, 2016 to file the translation of pleadings filed before the Carolina Superior Court, the same has not been timely produced. For that reason, another extension has been requested in order to comply with the L. Cv. R. 5(g) (D.P.R. 2009) and the undersigned counsel apologizes for the mishap. Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 2 of 14 3 negligent in proceeding to foreclose said property. Id. (Tranlation ours). 8. On November 10, 2016, the case was removed to the federal district court. I. The Only Proper Party Defendant is the United States 9. Failure to name the United States as defendant in a tort action, actions that are filed under the Federal Tort Claims Act (28 U.S.C. §1346(b), §1402(b), §2401(b), and 2671-2680 (“FTCA”)) results in fatal lack of jurisdiction in a suit alleging negligence by a federal employee. See, 28 U.S.C. § 2679(a) and Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990); Roman v. Townsend, 224 F.3d 24, 28 (1st. Cir. 2000) citing Allgeier. 10. The FTCA provides that the United States is the only proper party defendant. 28 U.S.C. § 2679(a). Failure to name the United States as defendant in an FTCA suit results in a fatal lack of jurisdiction. Allgeier, page 871. 11. Even if the Plaintiff’s amend the complaint to properly name the United States as the proper party defendant, the amendment will not relate back under Federal Rule 15 (c) because the United States has not been properly served. “We note that the majority of courts, including two district courts from this circuit, have held, without discussing the language of the government notice provision, that a plaintiff may secure the relation-back privilege only where the United States Attorney has in fact received process within the limitations period (citations omitted).” Allgeier, at page 873. 12. Under the FTCA a claimant has two years to file an administrative claim. See, 28 U.S.C. §2401 (b) (2 years to present administrative claim in writing, or claim is forever barred). 13. Only the United States may be sued under the FTCA, See, 28 U.S.C. § 2679(a). 14. Contrary to the Plaintiff’s allegations, the SBA’s electronic records show that on December 13, 1983 Florentino Cosme Garcia borrowed $45,000.00 from SBA. See, Gonzalez’s Decl. attached as Exhibit A, ¶ 2. Gonzalez’s Declaration also states that: a. The loan was guaranteed by two mortgages, one over a real property in Ciales and the second one, over a real estate property located in Isla Verde, Puerto Rico. Id. ¶ 3. Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 3 of 14 4 b. That SBA foreclosed on the mortgage encumbering the following real estate property, in civil Case No. 94-1479-CCC the following property: “RUSTICA: Radicada en el Barrio Frontón del termino municipal de Ciales, compuesta de Cuarenta Cuerdas igual a quince hectareas, sesentidos areas y dieciseis centiareas de terreno a pastos, maleza y cafe conteniendo una casa. En lindes por el NORTE, con la Sucesión Gonzalez y Reyes Menendez; SUR, con la Enrique Rosas; ESTE, con Enrique Rosas; OESTE, con la Sucesi6n de Jose Nunez y terrenos baldios. Recorded at page 275 over, volume 142 of Ciales, property number 1830, thirteenth inscription at the Registry of the Property of Manati, Puerto Rico. Id. ¶ 4. c. That the above mentioned real estate property was acquired by Maria Alicea for $32,000 at the judicial sale. Id. ¶ 5. d. That SBA did not foreclose on the Isla Verde property located because said mortgage was not recorded. Id. ¶ 5. II. Plaintiff Failed to Exhaust Administrative Remedies 15. Moreover, Plaintiff, has not filed an administrative claim, as required by the FTCA and therefore, she is barred from filing this complaint. See Gonzalez’s Declaration attached as Exhibit A, ¶ 7. District courts have jurisdiction of civil actions on claims against the USA for money damages for injury as stated in 28 U.S.C. §2401 (b) and a claimant has two (2) years to present an administrative claim in writing, or claim is forever barred. Since the alleged tortious action occurred in 1995, the two years for filing an administrative claim already expired or laches applies. In other words, the Plaintiff has failed to exhaust the administrative remedies mandated by the FTCA. 16. It is well established that the United States, as sovereign, is immune from suit unless it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). This doctrine is commonly known as sovereign immunity, which, unless waived, prohibits actions against the United States. Absent a waiver of sovereign immunity, the court is without subject matter jurisdiction to proceed. United States v. Testan, 424 U.S. 392, 399 (1976). Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 4 of 14 5 17. In 1946 Congress created a limited waiver of sovereign immunity known as the Federal Tort Claims Act. Santiago-Ramírez v. Secretary of the Department of Defense, 984 F.2d 16, 18 (1st Cir. 1993). The FTCA sets forth the parameters of suits against the United States sounding in tort. Any suits against the United States Government must strictly comply with the requisites prescribed by Congress. Honda v. Clark, 386 U.S. 484, 501 (1967). The terms of its consent to be sued in any court define that court’s jurisdiction to entertain that suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). One such condition is established by §2675 of the FTCA, which provides in part: (a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death 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 claims shall have been finally denied by the agency in writing and sent by certified or registered mail. (Our emphasis). 18. The filing of the administrative claim is a non-waivable jurisdictional requirement. This administrative procedure is to be followed and exhausted by claimants and allows the agency involved to receive the claim, investigate it, and perhaps settle the dispute before suit is filed. Santiago-Ramírez, at 18. If the claim is not presented before commencing suit, the suit must be dismissed even if the claim is subsequently presented. McNeil v. United States, 508 U.S. 106, 112 (1993). Such failure deprives the district court of jurisdiction over tort claims against the government. Richman v. United States, 709 F.2d 122, 124 (1st Cir. 1983). 19. No administrative claim has been filed regarding these facts, by the Plaintiff. 20. Pursuant to the clear directives of 28 U.S.C. §2675 and the case law discussed heretofore, we respectfully submit that this Honorable Court lacks subject matter jurisdiction to entertain this suit as and the same it is already time-barred. Therefore, the United States respectfully moves this Honorable Court to dismiss plaintiff’s Complaint. Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 5 of 14 6 II. Lack of Subject Matter Jurisdiction, Personal Jurisdiction and Insufficiency of Service 21. Pursuant to F. R. Civ. P. Rules 12(b)(1), 12(b)(2), and 12(b)(5) the United States moves for the dismissal of this action for lack of subject matter jurisdiction, lack of in personam jurisdiction and insufficient service of process. 22. The Complaint in this action naming the SBA as Defendant was filed on S e p t e m b e r 2 7 , 2 0 1 6 . (ECF No. 1). F. R. Civ. P. 4(i)(1) and (2), requires service of copy of the summons and complaint to be served on the United States Attorney, the Attorney General of the United States and also the federal agency2 involved within 90 days of filing the complaint. See, Fed.R.Civ.P.4 (m) which establishes the time limit for service, as amended. 23. Only the SBA was served on October 11, 2016 (See E.C.F. No. 1). 24. Plaintiffs have named as defendant the SBA. Failure to name the United States of America as defendant in FTCA suit results in fatal lack of jurisdiction in a suit alleging negligence by a federal employee. See, 28 U.S.C. § 2679(a) and Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990); Roman v. Townsend, 224 F.3d 24, 28 (1st. Cir. 2000) citing Allgeier. 25. As of this date, Plaintiff has not complied with F. R. Civ. P. 4(i) and (2), to the effect of serving the summons and complaint to the Attorney General of the United States and the United States Attorney within 90 days of filing the complaint. See Fed. R. Civ.P.4(m). 26. Therefore, this Honorable Court lacks personal jurisdiction and the case should be dismissed. 27. Furthermore, the Plaintiff cannot satisfy the mandatory or discretionary components of Fed.R.Civ.P. 4 (m). Rule 4(m) of the Federal Rules of Civil Procedure provides that a defendant must 2 The United States Army is the largest branch of the United States Armed Forces and performs land-based military operations. It is one of the seven uniformed services of the United States and is designated as the Army of the United States in the United States Constitution, Article 2, Section 2, Clause 1 and United States Code, Title 10, Subtitle B, Chapter 301, Section 3001. Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 6 of 14 7 be served within 90 days after the complaint is filed. If service is not done within 90 days the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice. But if Plaintiff can show good cause for the failure, the court must extend the time for service for an appropriate period. Thus, Rule 4(m) contains both mandatory and discretionary components. If a plaintiff can show good cause for his untimely or otherwise deficient service of process, the court must extend the time for service. See, e.g., In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). In addition, even if the plaintiff fails to show good cause, the court has “the discretion to dismiss without prejudice or extend the time period” for service. Id. citing Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3rd Cir. 1995). 28. The failure to serve the Attorney General of the United States, the United States Attorney and the named Defendants, within the 90 days required under Rule 4(m) renders improper the service against the United States, as well as against its agency and officials and employees. See McMasters v. United States, 260 F.3d 814, 818 (7th Cir. 2001) (failure to serve within 120-days). 29. Based on Plaintiffs’ failure to serve all of the parties mandated by the Federal Rules of Civil Procedure, the Plaintiffs or her counsel may have been unfamiliar with the rules governing service of process or unable to understand them. The courts in this and other circuits have held that ignorance of the rules is insufficient to establish “good cause” for belated service or a failure to timely serve under Rule 4(m). See e.g. Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996) (“Failure to read a rule is the antithesis of good cause. Ignorance may be an explanation but is not an excuse.”) (parallel citations omitted), accord Premier Capital v. DeCarolis, 2002 WL 47134 (D.N.H. 2002). 30. The United States hereby “clearly alleges the insufficiency of service of process”, since Plaintiff has failed to serve the Attorney General and the United States Attorney and neither have refused to be served. Miranda v. United States, 857 F.2d. 20 (1st Cir., 1998). 31. In Hearst v. West, 31 Fed. Appx. 366, 2002 WL 460131 (9th Cir. 2002), the Ninth Circuit affirmed the dismissal of an employment discrimination action brought against the U.S. Department of Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 7 of 14 8 Veterans Affairs. Hearst filed suit in the federal district court on April 12, 1999, but made no attempt at service on the Defendant. On July 15, 1999, the district court issued an order to show cause why Hearst’s claim should not be dismissed for lack of prosecution. Immediately thereafter, Hearst retained counsel and served the Secretary of the Department of Veterans Affairs, but not the other parties required to be served by Rule 4(i)(1) of the Federal Rules of Civil Procedure. 32. Plaintiff in the instant case filed suit on September 27, 2016; however, Plaintiffs still have failed to serve the Attorney General and the United States Attorney. Like Hearst, Plaintiff served some of the parties mandated by Rule 4(i)(1), but not all. Specifically, they failed to serve the United States Attorney and the Attorney General of the United States. In Hearst, the district court granted the defendant’s motion to dismiss, with prejudice, finding “that Hearst failed both to effect service on the Government within 120 days and to demonstrate good cause to excuse the delay.” Hearst, 31 Fed.Appx. at 367; see also McCurdy v. American Board of Plastic Surgery, 157 F.3d 191, 198 (3rd Cir. 1998)(finding that the plaintiff’s “half-hearted and dilatory” efforts at perfecting service were “too little, too late”). 33. On appeal Hearst argued that he had good cause for his untimely service on the United States because he was originally a pro se litigant and because the Government had misled him with respect to how service had to be made. Id. at 368. The court of appeals rejected these arguments finding that Hearst had failed to substantiate his claim that the Government had made misrepresentations and “the mere fact that Hearst was pro se does not constitute good cause.” Id. at 369. Pro se litigants are subject to the same rules of procedure that govern every other litigant. See DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir. 1993), citing Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993)); see also McIsaac v. Ford, 193 F.Supp.2d 382, 383 (D.Mass. 2002), citing Wright & Miller, Federal Practice and Procedure: Civil 3d § 1137, at 342 (2002). 34. As previously stated, and as in the Hearst case, the Plaintiff cannot show that her efforts to effect proper service were impeded in any way by Defendant. Moreover, it appears Plaintiff has been represented by counsel from the onset. The fact that Defendant may have had notice prior to expiration of the service deadline that Plaintiff may have filed a lawsuit or that the Defendant may not have been Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 8 of 14 9 prejudiced in the preparation of its defense still “does not compel a finding of good cause.” Precision Etchings & Findings, Inc. v. LGP Gem, Ltd., 953 F.2d 21, 24 (1st Cir. 1992). II. Legal Arguments A. Standard of Review 35. Federal Rule of Civil Procedure 12(b)(l) permits a defendant to assert a claim that the court lacks subject matter jurisdiction to entertain an action. Federal Courts are not at liberty to overlook limitations on their subject matter jurisdiction. Francis v. Goodman, 81 F.3d 5, 8 (1st Cir. 1996). If a court determines as a threshold matter that subject matter jurisdiction does not exist, it must dismiss the case and not make any determination on its merits. Menéndez v. United States, 67 F.Supp.2d 42 (D. Puerto Rico, Sep. 3, 1999). Where subject matter jurisdiction is lacking, dismissal, not summary judgment is the appropriate disposition. Mackay v. Pfiel, 827 F. 2d 540,543 (9th Cir. 1987). 36. However, it is the plaintiff who bears the ultimate burden of proving that subject matter jurisdiction exists- Id. Argumentative inferences favorable to the pleader should not be drawn. Atlantic Mutual Insurance Company v. Balfour Maclaine International Ltd., 968 F.2d196,198 (2d Cir. 1992). In order to state a claim, a plaintiff must include "sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face. "' Ashcroft v. Iqbal, 129 S. CT- 1937, 1949 (2009) (quoting Bell Atlantic corp. v. Twombly, 550 US 544, at 555 (2007)). "The plausibility standard requires more than a sheer possibility that the defendant has acted unlawfully." Id. To make the determination as to whether this standard is met by a particular pleading the court should: 1) discard "mere conclusionary statements, not supported by factual allegations;" and, 2) "rely on its experience and common sense" as applied to any remaining actual factual allegations. Id., quoting Twombly_ at 556. Thus, for a claim to be plausible on its face, it must include sufficient factual content for the court to "be able to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal. S.E.C. v. Tambone, 597 Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 9 of 14 10 F.3d 436 (1st Cir., 2010). B. The Complaint Should Be Dismissed Pursuant to F.R.C.P 12(b)(2) for Lack of Personal Jurisdiction. 37. This action was initiated with the filing of a Complaint on September 27, 2016 and jurisdiction is alleged under the Federal Tort Claims Act, 28 USC §1346(b). 38. As of this date, Plaintiff has failed to properly serve the Defendants. Federal Rule of Civil Procedure 4(i)(1) requires that service upon the United States shall be effectuated by (A) delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought, or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney, and (B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia. 39. In addition, Federal Rule of Civil Procedure 4(i)(2)(A) states that service of an agency of the United States, or an officer or employee of the United States sued only in an official capacity, is effectuated by serving the United States in the manner prescribed by Rule 4(i)(1), and by also sending a copy of the summons and complaint by registered or certified mail to the officer, employee or agency. 40. Federal Rule of Civil Procedure 4(m), as amended, states that service of the summons and complaint must be made upon a defendant within 90 days after the filing of the complaint. More than 90 days have passed since the filing of the Complaint and the Defendants have not been properly served. 41. Upon information and belief, the Attorney General of the United States at Washington, District of Columbia, has not been served with a copy of the summons and the complaint, as required by Rule 4(i)(1)(A) and Rule 4(i)(1)(B). See summons returned executed in E.C.F. No. 9, showing that only the United States Attorney has been served. 42. The failure to serve the Attorney General of the United States and the named Defendants, within the 90 days required under Rule 4(m) renders improper the service against the United States, as well as against its agency and officials and employees. See McMasters v. United States, 260 F.3d 814, Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 10 of 14 11 818 (7th Cir. 2001) (failure to serve within 120-days). 43. FRCP 4(m) limits the time to effect service upon a defendant to 90 days after the filing of the complaint. 44. Therefore, plaintiff bears the burden of timely service that can only be extended for good cause shown. 45. The standard for determining good cause for extending the 120-day period for service of process3 is still developing- Mol-singer v. Flynt, 119 F.R.D. 373 (M.D.N.C. 1988); Barco Arroyo v. FEMA, 113 F.R.D. 46, 48 (D. Puerto Rico 1986). The legislative history gives only one example of good cause -- that being where a defendant intentionally avoids service. 128 Cong. Rec. 1-19848, 9852 n.25 (daily ed. Dec. 15, 1982); Lovelace v- Acme Markets. Inc., 820 F.2d 81 (3 rd Cir. 1987); Barco Arroyo, 113 F.R.D. at 48. Courts interpreting the rule have found good cause" to encompass more than a single unsuccessful attempt at service. Boykin v. Commerce Union Bank of Union City, 109 F.R.D. 344 (W.D. Tenn. 1986). An attorney's inadvertence or ignorance, or misplaced reliance, will not serve to excuse a failure to timely serve. Hart v. United States, 817 F.2d 78 (9th Cir. 1987) (secretarial negligence is chargeable to counsel and is not good cause); Braxton v. U.S., 817 F.2d 238, 242 (3d Cir. 1987) (counsel's failure to monitor service coupled with private process server's unexplained failure to timely serve complaint not good cause); Wei v. State of Hawaii, 763 F.2d 370 (9th Cir. 1985) ("inadvertence of Wei's counsel likewise does not qualify as good cause"); López v. U.S. Postal Service, 132 F.R-D. 10 (E.D.N.Y. 1990) (inadvertence of counsel not good cause, nor will actual notice to government support finding of good cause). 46. The United States Supreme Court has stated, in Heckler v. Community Health Services, 467 U.S. 51, 64 (1984), that "[t]hose who deal with the government are expected to know the law." See also, Baden v. Craig-Hallum, Inc., 115 F.R.D. 582 (Minn. 1987) (Rule 46) was enacted to force parties and their attorneys to be diligent in prosecuting their causes of action); Barco Arroyo, 113 F.R.D. at 49. 3 Rule 4(m) was amended effective December 1, 2016 and shortened the period to complete service to 90-days. Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 11 of 14 12 47. Further, actual notice is insufficient to meet the requirements of Rule 4. See, e.g., Swaim v. Moltan Co., 73 F.3d 711, 719 (7th Cir.1996); Mid-Content Wood Products Inc- v. Harris, 936 F.2d 297, 300 (7th Cir. 1991) (liberal construction of rules of service "cannot be utilized as a substitute for the plain legal requirement as to the manner in which service of process may be held."). C. Lack of Subject Matter Jurisdiction for Failure to Exhaust the Administrative Remedies 48. Pursuant to 28 U.S.C. § 2675 an action shall not be instituted upon a claim against the United States for money damages for injury caused by the negligent or wrongful act or omission of any employee of the United States while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency. Although in this case both plaintiffs filed administrative claims, they did not fully comply with the administrative process as discussed above. 49. A claimant may not file a lawsuit under the FTCA until “(i) the agency finally denies the administrative claim, or (ii) six months pass without a final denial of the administrative claim, whichever comes first.” Kodar, LLC v. United States, 879 F. Supp.2d 218 (D.R.I. 2012). Exhaustion of administrative remedies is a non-waivable jurisdictional requirement. Acosta v. United States Marshalls Service, 445 F.3d 509 (1st cir. 2006); Cotto v. United States, 973 F.2d 274, 279 (1st Cir. 1993). D. Failure to State a Claim Upon which Relief may be Granted 50. The cause of action filed by Plaintiff before the Carolina Superior Court is grounded in article 348, Puerto Rico Civil Code, 31 L.P.RA. § 111 (“reivindicacion” or action to recover the possession of the real estate property) which is premised on the requirement that the person claiming legal holder or title must have been in the possession of the real estate property in order to recover the same. See 31 L.P.R.A. § 1114. Furthermore, se 31 L.P.R.A. §1481 (“Any person who, according to law recovers possession unlawfully lost, is considered to have held it uninterruptedly for all purposes which may redound to his benefit.”). This is not applicable to the case at bar since per Plaintiff’s own allegations she never possessed the real estate property. Therefore, Plaintiff failed to comply with the basic requirement of the statute, which is immediate possession of the property. Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 12 of 14 13 51. Plaintiff’s lawsuit is time-barred and the action for recovery of possession is not applicable because Plaintiff never became in possession of the Isla Verde property. 52. Moreover, the United States filed a title study before executing the foreclosure action for the property located in Ciales at Barrio Frontón. See Civil Case 94-1479, Docket 7. 53. The court confirmed the judicial sale on Februarty 17, 1995, by an endorsed order in Docket 13 in civil case 94-1479. See, Rule 201, Fed. R. Evid. (court may take judicial notice of cases in their own court). 54. Lastly, the execution of the Judicial Sales Deed and its recordation in the Registrar of the Property was the responsibility of the successful bidder. III. Conclusion Insofar as the United States of America is the only proper party defendant in tort actions as per § 2675, that the Plaintiffs have failed to serve the United States within 90-days, and that, further, Plaintiffs have failed to properly and adequately exhaust administrative remedies as per § 2679, and therefore, the Complaint must be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. WHEREFORE, it is respectfully requested from this Honorable Court to dismiss the Complaint with prejudice. RESPECTFULLY SUBMITTED in San Juan, Puerto Rico, this 9th day of Janauary 2017. ROSA EMILIA RODRÍGUEZ VÉLEZ United States Attorney s/Agnes I. Cordero Assistant U.S Attorney USDC- PR# 126101 Torre Chardon, Suite 1201, 350 Chardon Street Hato Rey, Puerto Rico 00918 Tel. 787-766-5656/Fax: 787-766-6219 Agnes.Cordero@usdoj.gov Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 13 of 14 14 CERTIFICATE OF SERVICE I hereby certify that on this same date, I presented the foregoing motion to the Clerk of the Court for filing and uploading to the CM/ECF system which will send notification of such filing to: NONE, and also, hereby certify that I have sent a copy by first class mail service to the following non CM/ECF participants: Joaquín Quero-Figueroa, Esq. RC-31, Vía Piedras, Urb. Río Cristal, Encantada, Trujillo Alto, PR 00976. s/Agnes I. Cordero Assistant U.S Attorney USDC- PR# 126101 Torre Chardon, Suite 1201, 350 Chardon Street Hato Rey, Puerto Rico 00918 Tel. 787-766-5656/Fax: 787-766-6219 Agnes.Cordero@usdoj.gov Case 3:16-cv-02962-CCC Document 5 Filed 01/09/17 Page 14 of 14 EXHIBIT A Case 3:16-cv-02962-CCC Document 5-1 Filed 01/09/17 Page 1 of 3 Unswom Statement Under Penalty of Perjury I, Liana Gonzalez, of legal age, single and resident of Arlington, Virginia, in my capacity as District Counsel for the U.S. Small Business Administration, under penalty of perjury declare that the following is true and correct to the best of my knowledge: 1. That my personal circumstances are as indicated above. 2. That our electronic records show that on December 13, 1983, Florentino Cosme Garcia borrowed $45,000.00 from Small Business Administration. 3. That this loan was guaranteed by two mortgages, one over a real property in Ciales and the second one, over a real estate property located in Isla Verde, Puerto Rico. 4. That SBA foreclosed on the mortgage encumbering the following real estate property, Case No. 94-1479-CCC: RUSTICA: Radicada en el Barrio Front6n del termino municipal de Ciales, compuesta de Cuarenta Cuerdas igual a quince hectareas, sesentidos areas y dieciseis centiareas de terreno a pastes, maleza y cafe conteniendo una casa. En lindes por el NORTE, con la Sucesi6n Gonzalez y Reyes Menendez; SUR, con la Enrique Rosas; ESTE, con Enrique Rosas; OESTE, con la Sucesi6n de Jose Nunez y terrenos baldios. Recorded at page 275 over, volume 142 ofCiales, property number 1830, thirteenth inscription at the Registry of the Property of Manati, Puerto Rico. 5. That the above mentioned real estate property was acquired by Maria Alicea for $32,000 at the judicial sale. 6. That SBA did not foreclose on the real estate property located in Isla Verde, Puerto Rico, because our mortgage was not recorded. 7. That Plaintiff did not file any administrative claim with SBA regarding the Federal Tort Claims Act claims she is malcing. Case 3:16-cv-02962-CCC Document 5-1 Filed 01/09/17 Page 2 of 3 8. The above information is true and correct to the best of my knowledge and belief, and is made under penalty of perjury according to 28 U.S.C. section 1746. In San Juan, Puerto Rico this 9th day of January, 2017. ~nzfilez District Counsel Case 3:16-cv-02962-CCC Document 5-1 Filed 01/09/17 Page 3 of 3