Cruz-Vazquez et al v. United States Government

MOTION to Dismiss/Lack of Jurisdiction

D.P.R.November 15, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO NEREIDA CRUZ-VAZQUEZ, CHARLINE CUYAR-CRUZ Plaintiffs v. UNITED STATES GOVERNMENT Defendant. CIVIL NO. 16-1358-PG MOTION TO DISMISS AND MEMORANDUM IN SUPPORT TO THIS HONORABLE COURT: COMES NOW Defendant, the United States of America (United States), and without submitting to the jurisdiction of this Honorable Court, and pursuant to Rules 12(b)(1), 12(b)2) and 12(b)(5) 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) and insufficient service of process, as set forth below: I. Lack of Subject Matter Jurisdiction, Personal Jurisdiction and Insufficiency of Service 1. 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. 2. The Complaint in this action naming the United States Government as Defendant was filed on March 1, 2016. (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 agency1 involved within 90 days of filing the complaint. See, Fed.R.Civ.P.4 1 The United States Army is the largest branch of the United States Armed Forces and performs land-based military Case 3:16-cv-01358-PG Document 15 Filed 11/15/16 Page 1 of 10 2 (m) which establishes the time limit for service, as amended. 3. Only the United States Attorney for the District of Puerto Rico has been served (See E.C.F. No. 9). 4. Plaintiffs have named as defendant the United States Government. 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. 5. However, as the docket reflects, neither the Secretary of the Army or Defense (who is the proper party to be served on behalf of the United States Army), nor the Attorney General, Loretta E. Lynch, has been served with process in the instant action. 6. 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 Secretary of the Army or Defense within 90 days of filing the complaint. See Fed. R. Civ.P.4(m). 7. Therefore, this Honorable Court lacks personal jurisdiction and the case should be dismissed. 8. Furthermore, Plaintiffs 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 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 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-01358-PG Document 15 Filed 11/15/16 Page 2 of 10 3 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). 9. 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, 818 (7th Cir. 2001) (failure to serve within 120-days). 10. Based on Plaintiffs’ failure to serve all of the parties mandated by the Federal Rules of Civil Procedure, Plaintiffs or their 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). 11. The United States hereby “clearly alleges the insufficiency of service of process”, since Plaintiff has failed to serve the Attorney General and the Secretary of the Army and the latter have not refused to be served. Miranda v. United States, 857 F.2d. 20 (1st Cir., 1998). 12. 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 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. 13. Plaintiff in the instant case filed suit on March 1, 2016; however, Plaintiffs still have failed to Case 3:16-cv-01358-PG Document 15 Filed 11/15/16 Page 3 of 10 4 serve the the Attorney General and the United States Army. 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”). 14. 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). 15. As previously stated, and as in the Hearst case, Plaintiffs cannot show that their efforts to effect proper service were impeded in any way by Defendant. Moreover, it appears Plaintiffs have 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 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 16. 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 Case 3:16-cv-01358-PG Document 15 Filed 11/15/16 Page 4 of 10 5 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). 17. 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 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. 18. This action was initiated with the filing of a Complaint on March 1, 2016 and jurisdiction is alleged under the Federal Tort Claims Act, 28 USC §1346(b). 19. 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 Case 3:16-cv-01358-PG Document 15 Filed 11/15/16 Page 5 of 10 6 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. 20. 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. 21. 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. 22. 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. 23. 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, 818 (7th Cir. 2001) (failure to serve within 120-days). 24. FRCP 4(m) limits the time to effect service upon a defendant to 90 days after the filing of the complaint. 25. Therefore, plaintiff bears the burden of timely service that can only be extended for good cause shown. Case 3:16-cv-01358-PG Document 15 Filed 11/15/16 Page 6 of 10 7 26. The standard for determining good cause for extending the 120-day period for service of process 2 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). 27. 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. 28. 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."). 2 Rule 4(m) was amended effective December 1, 2016 and shortened the period to complete service to 90-days. Case 3:16-cv-01358-PG Document 15 Filed 11/15/16 Page 7 of 10 8 C. Lack of Subject Matter Jurisdiction for Failure to Exhaust the Administrative Remedies 29. 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 further below. 30. 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). 31. Once an administrative claim is filed, a Federal Agency has clear authority under 28 CFR §§ 14.2(a) and 14.4 to request supporting information. A plaintiff's failure to document an administrative claim as requested by the Federal Agency precludes the latter from evaluating the claim for settlement purposes. Given this failure to comply with an Agency's request for information, the six month period in which an agency must process a claim under 28 U.S.C.§ 2675(a) is not triggered and a plaintiff’s administrative remedies are not exhausted. Swift v. United States, 614 F.2d 812 (1st Cir. 1980). See also Beaulieu v. United States. Slip Copy, 2012 WL 3113194 (D.R.I.). See, Frattallone’s Declaration attached as Exhibit A stating the documents requested to Plaintiffs, and that they failed to produce. 32. If a claimant’s deliberately bypass the administrative settlement procedures, this action is in conflict with Congress’s intent in mandating the filing of administrative claims prior to suit. See, Dillon v. United States, 480 F. Supp. 862 (D.D.D. 1979) (the purpose of the administrative claim is to give the agency an opportunity to settle claims and sufficient factual information must be provided to enable the agency to conduct an investigation to determine if settlement is justified). Case 3:16-cv-01358-PG Document 15 Filed 11/15/16 Page 8 of 10 9 33. A claimant’s failure to respond to reasonable requests for information necessary to allow the agency to properly evaluate settlement would not be in compliance with Congress’s intent. Manis v. United States, 467 F. Supp. 828 (E.D. Tenn. 1979); Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998), aff'd, 983 F. Supp. 336, 340, 341--42 (E.D.N.Y. 1997). Dismissing an FTCA action after finding plaintiff's claim insufficient, the court stated that "[p]ermitting a plaintiff to maintain an action after submitting a conclusory form that provided no information, especially where, as here, the plaintiffs failed to reply to requests for information that was solely within their possession would eviscerate the statute's purpose."; Furman v. United States Postal Serv., 349 F. Supp. 2d 553, 557-559 (E.D.N.Y. 2004). Plaintiff filed an administrative claim asserting that he suffered injuries as a result of a collision involving a Postal Service vehicle, and claimed $350,000 in damages. He ignored requests from the agency that he provide medical reports, itemized medical bills and wage loss statements. The court held that the information provided was not specific enough to enable the government to expedite the fair settlement of the claim, and dismissed the action. See also Swift v. United States, 614 F.2d 812 (1st Cir. 1979); Lovell v. Unknown Fed. Corr. Officers, 595 F.2d 281 (5th Cir. 1979); Founding Church of Scientology v. F.B.I., 459 F. Supp. 748 (D.D.C. 1978); Cummings v. United States, 449 F. Supp. 40 (D. Mont. 1978); Rothman v. United States, 434 F. Supp. 13 (C.D. Cal. 1977). 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, pursuant to Federal Rule Civil Procedure 12(b)(1), the Complaint must be dismissed for lack of subject matter jurisdiction. _______________________ Case 3:16-cv-01358-PG Document 15 Filed 11/15/16 Page 9 of 10 10 WHEREFORE, it is respectfully requested from this Honorable Court to dismiss the Complaint with prejudice. RESPECTFULLY SUBMITTED in San Juan, Puerto Rico, this 15th day of November 2016. I hereby certify that on this same date, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all counsel of record. ROSA EMILIA RODRIGUEZ VELEZ 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-01358-PG Document 15 Filed 11/15/16 Page 10 of 10 EXHIBIT A Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 1 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 2 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 3 of 20 ENCLOSURE 1 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 4 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 5 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 6 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 7 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 8 of 20 ENCLOSURE 2 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 9 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 10 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 11 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 12 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 13 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 14 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 15 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 16 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 17 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 18 of 20 ENCLOSURE 3 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 19 of 20 Case 3:16-cv-01358-PG Document 15-1 Filed 11/15/16 Page 20 of 20