Darby v. Dot Nhtsa

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Wash.May 19, 2017

UNITED STATES’ MOTION TO DISMISS Case No. C17-00731 JPD -1 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Magistrate Judge James P. Donohue UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE IRIS DARBY, Plaintiff, v. DOT NHTSA Defendant. Case No. C17-00731 JPD MOTION TO DISMISS Fed. R. Civ. P. 12(b)(6) Noted for consideration on: June 16, 2017. Defendant United States of America (hereinafter, ADefendant@ or “Government”),1 by and through its counsel, Annette L. Hayes, United States Attorney for the Western District of Washington, and Priscilla T. Chan, Assistant United States Attorney for said District, hereby move pursuant to the Federal Tort Claims Act (AFTCA@), 28 U.S.C. '' 2679, 2680(b), et seq, and Rules 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff=s Complaint for failure to state a 1 Federal agencies, such as the United States Department of Transportation (“DOT”) and its component, the National Highway Transportation Safety Administration (“NHTSA”), cannot be sued in their own names for claims cognizable under the Federal Tort Claims Act (“FTCA”). In such suits, the United States of America is the real party in interest. See 28, U.S.C. §§ 1346(b), 2679, et seq. Case 2:17-cv-00731-JPD Document 6 Filed 05/19/17 Page 1 of 6 UNITED STATES’ MOTION TO DISMISS Case No. C17-00731 JPD -2 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 claim. This motion is supported by the pleadings on file in this case and the Declaration of Otto G. Matheke, III (“Matheke Decl.”), submitted herewith. I. FACTS Plaintiff filed a Complaint in King County Superior Court on or about April 5, 2016, claiming that she “encountered excessive toll charges - both in dollar amounts and frequency of encounters,” and at each location, claims she was “badgered, harassed, ticketed or scolded at each encounter for not providing immediate funds.” Notice of Claim, Dkt. No. 1-1 at 4. On May 10, 2017, the United States removed this case to United States District Court. Notice of Removal, Dkt. No. 1. The NHTSA is the federal agency responsible for improving safety on federal highways. Matheke Decl. at ¶ 2. This agency does not play any role in the design, construction or maintenance of highways and plays no role in the establishment or setting of tolls for roads, highways, tunnels or bridges. Id. at ¶ 3. The NHTSA maintains records of administrative claims submitted for adjudication to NHTSA pursuant to the provisions of the Federal Tort Claims Act, §§ 1346(b) and 2671, et seq. Id. at ¶ 4. Any and all claims asserted against NHTSA nationwide are, pursuant to standing NHTSA directives and procedures, directed to NHTSA’s Office of Chief Counsel. Id. Consequently, that office receives and keeps records of tort claims originating within the State of Washington. Id. The NHTSA examined the NHTSA records of administrative tort claims submitted for adjudication for evidence of an administrative claim filed by, or on behalf of the plaintiff in this case, Iris Darby, and found no such claim. Id. at ¶ 5. // // Case 2:17-cv-00731-JPD Document 6 Filed 05/19/17 Page 2 of 6 UNITED STATES’ MOTION TO DISMISS Case No. C17-00731 JPD -3 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 II. ARGUMENT A. Plaintiff Failed To State A Claim For Relief As Required Under Rule 8(a) Of The Federal Rules Of Civil Procedure. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief. . .” Fed. R. Civ. P. 8 (a)(2). Here, Plaintiff has claimed in her Complaint that the NHTSA was responsible for charging her with “excessive tolls” and at each location, caused her to be “badgered, harassed, ticketed or scolded at each encounter for not providing immediate funds.” Notice of Claim, Dkt. No. 1-1 at 4. However, no statement is given for how the actions of the NHTSA relate to her claims. To the contrary, the NHTSA “does not play any role in the design, construction or maintenance of highways and plays no role in the establishment or setting of tolls for roads, highways, tunnels or bridges.” Matheke Decl. at ¶ 3. Because the NHTSA is not responsible for any acts pertaining to Plaintiff’s Complaint, she is not entitled to the relief sought on its face and her action should be dismissed for failure to state a claim. B. Plaintiff Failed To Exhaust Her Administrative Remedies Under The FTCA; Therefore, She Has Failed To State A Claim For Relief. An action against the United States for damages resulting from the negligence or wrongful conduct of a government agency or employee, must be brought under the FTCA, 28 U.S.C. '' 2671- 2680. As a prerequisite, an FTCA action can only be instituted once an administrative claim is denied, either actually or constructively by the agency=s failure to act upon the claim within six months. 28 U.S.C. ' 2675(a). Specifically, A[a]n action shall not be instituted upon a claim against the United States for ... injury or 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 Case 2:17-cv-00731-JPD Document 6 Filed 05/19/17 Page 3 of 6 UNITED STATES’ MOTION TO DISMISS Case No. C17-00731 JPD -4 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. . . .@ Id. Thus, an FTCA action may not be maintained when the claimant fails to exhaust administrative remedies prior to filing suit. McNeil v. United States, 508 U.S. 206 (1993); Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992); Caton v. United States, 495 F.2d 635, 638 (9th Cir. 1974) (statutory procedure is clear that tort proceeding may not be commenced in court against the United States until claim conclusively denied or lapse of six months without action); United States v. Kwai Fun Wong, et al., 135 S.Ct. 1625 (2015). Here, Plaintiff did not present an administrative tort claim to the NHTSA. Matheke Decl. at ¶¶ 4-5. Specifically, an examination of all records of administrative claims filed with NHTSA indicates that no claim was ever filed on behalf of Plaintiff. Id. Because Plaintiff did not file an administrative tort claim with the NHTSA, she failed to exhaust her administrative remedies and the United States did not waive sovereign immunity under the FTCA. III. CONCLUSION Based on the foregoing, the United States requests that its motion to dismiss be granted, and Plaintiff=s Complaint be dismissed for failure to state a claim. // // // // // // // // Case 2:17-cv-00731-JPD Document 6 Filed 05/19/17 Page 4 of 6 UNITED STATES’ MOTION TO DISMISS Case No. C17-00731 JPD -5 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 DATED this 19th day of May, 2017. Respectfully submitted, ANNETTE L. HAYES United States Attorney /s/ Priscilla T. Chan PRISCILLA T. CHAN, WSBA #28533 Assistant United States Attorney United States Attorney’s Office 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Phone: 206-553-7970 Fax: 206-553-4073 E-mail: Priscilla.chan@usdoj.gov Attorneys for the United States of America Case 2:17-cv-00731-JPD Document 6 Filed 05/19/17 Page 5 of 6 UNITED STATES’ MOTION TO DISMISS Case No. C17-00731 JPD -6 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CERTIFICATE OF SERVICE The undersigned hereby certifies that he is an employee in the Office of the United States Attorney for the Western District of Washington and is a person of such age and discretion as to be competent to serve papers; I further certify that on this date, I mailed by United States Postal Service the foregoing document to the following attorneys of record: Iris Darby, pro se 77 South Washington Street Seattle, Washington 98104 DATED this this 19th day of May, 2017. s/ Julene Delo JULENE DELO, Legal Assistant United States Attorney’s Office 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Phone: 206-553-7970 Fax: 206-553-4067 Email: julene.delo@usdoj.gov Case 2:17-cv-00731-JPD Document 6 Filed 05/19/17 Page 6 of 6 Order Granting Motion to Dismiss (Proposed) C17-00731 JPD - 1 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Magistrate Judge James P. Donohue UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE IRIS DARBY, Plaintiff, v. DOT NHTSA Defendant. CASE NO. C17-00731 JPD ORDER GRANTING MOTION TO DISMISS [PROPOSED] The Court, having reviewed the pleadings and materials in this case, it is hereby ORDERED that: The United States’s Motion to Dismiss is GRANTED. DATED this ___ day of __________________, 2017. James P. Donohue United States Magistrate Judge Case 2:17-cv-00731-JPD Document 6-1 Filed 05/19/17 Page 1 of 2 Order Granting Motion to Dismiss (Proposed) C17-00731 JPD - 2 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Presented by: ANNETTE L. HAYES United States Attorney /s/ Priscilla T. Chan PRISCILLA T. CHAN, WSBA #28533 Assistant United States Attorneys Western District of Washington United States Attorney’s Office 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Phone: 206-553-7970 E-mail: Priscilla.Chan@usdoj.gov Attorneys for the United States of America Case 2:17-cv-00731-JPD Document 6-1 Filed 05/19/17 Page 2 of 2