Despot v. Allied Interstate, Inc. et al

BRIEF in Support re Motion to Dismiss

W.D. Pa.September 15, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DAVID DESPOT, ) ) Plaintiff, ) CIVIL ACTION NO. 15-15 ) v. ) JUDGE NORA BARRY FISCHER ) ALLIED INTERSTATE, INC., et al., ) (Electronic Filing) ) Defendants. ) FEDERAL DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS I. INTRODUCTION Pro se Plaintiff, David Despot, brings various negligence claims under the Federal Tort Claims Act (FTCA) against five Federal Defendants: (1) the United States Consumer Financial Protection Bureau (CFPB), (2) the United States Department of Education (DOE), (3) the United States Equal Employment Opportunity Commission (EEOC), (4) the United States Federal Communications Commission (FCC), and (5) the United States Federal Trade Commission (FTC) [hereinafter “Federal Defendants”].1 However, Plaintiff has failed to exhaust administrative remedies as statutorily required by the FTCA, 28 U.S.C. § 2675(a). Accordingly, all of the negligence claims must be dismissed against each Federal Defendant. II. BACKGROUND Plaintiff initially brought this action on January 6, 2015, by filing a 284-page Complaint against numerous Defendants, including the five Federal Defendants stated above. After Plaintiff filed a “Notice of Voluntary Dismissal,” this Court dismissed all the Federal Defendants 1 Plaintiff has improperly named each agency as the defendant in this FTCA action. The only proper defendant to a claim under the FTCA is the United States. See CNA v. United States, 535 F.3d 132, 138 n. 2 (3d Cir. 2008) (“The Government is the only proper defendant in a case brought under the FTCA.”). Case 2:15-cv-00015-NBF Document 353 Filed 09/15/16 Page 1 of 7 2 from this lawsuit on August 18, 2015. See Dkt. Nos. 158, 160. Plaintiff then filed an Amended Complaint on April 5, 2016, bringing all of the Federal Defendants back into this case. Id at Dkt. No. 251. The allegations pertaining to the Federal Defendants are found in paragraphs 485-542 of the Amended Complaint. Each of the allegations against the Federal Defendants are premised upon a negligence theory and presented under the FTCA. See Am. Compl. at ¶¶ 487-497 (negligence claims against CFPB), ¶¶ 498-508 (negligence claims against DOE), ¶¶ 509-520 (negligence claims against EEOC), ¶¶ 521-531 (negligence claims against FCC), and ¶¶ 532-542 (negligence claims against FTC). More specifically, Plaintiff alleges that the CFPB was negligent in such areas as: writing rules, supervising companies, enforcing federal laws, restricting unfair or abusive practices, and enforcing laws that prohibit discrimination. Id. at ¶ 487. Plaintiff alleges that the DOE was negligent in establishing education policy; administering, coordinating, and executing such policies; and implementing Congressionally enacted laws. Id. at ¶ 498. Plaintiff alleges that the EEOC was negligent in processing and investigating Plaintiff’s EEOC complaint, enforcing federal laws, and acting responsibly to protect equal opportunity in the workplace. Id. at ¶ 511. Plaintiff alleges that the FCC negligently conducted communications both inside and outside the Federal Government. Id. at ¶ 523. Finally, Plaintiff alleges that the FTC was negligent in protecting consumers, stopping unfair and fraudulent marketplace practices, conducting investigations, enforcing the law, and developing rules to foster a vibrant marketplace. Id. at ¶ 532. Case 2:15-cv-00015-NBF Document 353 Filed 09/15/16 Page 2 of 7 3 III. LEGAL STANDARD – RULE 12(b)(1) The party asserting the existence of federal jurisdiction bears the burden of proving that jurisdiction over the subject matter actually exists. Int’l Ass’n of Machinists & Aerospace Workers v. Northwest Airlines, 673 F.2d 700, 711 n.16 (3d Cir. 1982); Shepherdson v. Local Union No. 401, 823 F. Supp. 1245, 1248 (E.D. Pa. 1993). When considering a challenge to a court’s jurisdiction under Fed. R. Civ. P. 12(b)(1), a court ordinarily need not limit its inquiry to the facts as pled in the complaint. Land v. Dollar, 330 U.S. 731, 735 (1947). Rather, “[t]he court may inquire by affidavits or otherwise, into the facts as they exist.” Id. at 735 n.4. Such inquiry is permissible because a Federal Court must assure itself that it has jurisdiction over the case, and it may even resolve factual disputes in doing so. See Boyle v. The Governor’s Veterans Outreach & Assistance Ctr., 925 F.2d 71, 74 (3d Cir. 1991) (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). This Motion asserts that Plaintiff’s negligence claims against the Federal Defendants should be dismissed because he failed to exhaust administrative remedies as required by 28 U.S.C. § 2675(a). The failure to exhaust under § 2675(a) is a jurisdictional bar to bringing a negligence claim in this Court. Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015). IV. ARGUMENT: PLAINTIFF’S CLAIMS SHOULD BE DISMISSED BECAUSE HE FAILED TO EXHAUST ADMINISTRATIVE REMEDIES PURSUANT TO 28 U.S.C. § 2675(a) A. Exhaustion Is Mandatory Under the Federal Tort Claims Act. As sovereign, the United States and its agencies are immune from suit except as it consents to be sued, and the terms of its consent, as set forth by Congress, define the limits of the Federal Courts’ subject-matter jurisdiction to decide suits brought against the United States. United States v. Sherwood, 312 U.S. 584, 586 (1941); see also Dolan v. United States Postal Case 2:15-cv-00015-NBF Document 353 Filed 09/15/16 Page 3 of 7 4 Serv., 546 U.S. 481, 484 (2006) (stating that the Postal Service, as an executive branch of the federal government, “enjoys federal sovereign immunity”). In passing the FTCA, however, Congress waived the sovereign immunity of the United States for certain torts committed by federal employees. Id. at 484-85. The FTCA provides that a suit against the United States is the exclusive remedy for injury “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.” 28 U.S.C. § 2675(a). Prior to bringing suit, the FTCA requires that “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 and sent by certified or registered mail,” otherwise known as the exhaustion requirement. Id.; McNeil v. United States, 508 U.S. 106, 112–113 (1993). As stated above, the failure to properly exhaust under § 2675(a) is a jurisdictional bar to bringing a negligence claim in this Court. Shelton, 775 F.3d at 569; see also McNeil, 508 U.S. at 111 (“Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process”). B. Plaintiff Failed to Exhaust Administrative Remedies Against Each Federal Defendant. Federal Defendants are unaware of any evidence establishing that Plaintiff properly exhausted administrative remedies under the FTCA. Plaintiff alleges that he filed “[a] document intended . . . to serve as an administrative claim” with each Federal Defendant and that each claim was never ruled upon within the six-month time period mandated by 28 U.S.C. § 2675(a). Am. Compl. at ¶¶ 491-94, 502-04, 515-17, 525-28, 536-39. Plaintiff alleges that he filed Case 2:15-cv-00015-NBF Document 353 Filed 09/15/16 Page 4 of 7 5 administrative claims with the agencies on or about November 10, 2013. Id.2 However, Plaintiff fails to attach the alleged “administrative claims” to his Amended Complaint. Moreover, none of the Federal Defendants have records of any FTCA claim that was properly submitted by Plaintiff to the respective agencies at any time prior to the filing of this lawsuit. See Attachment (“Att.”) A (Decl. of Margaret H. Plank (CFPB), at ¶ 3); Att. B (Decl. of Tracey Sasser (DOE), at ¶ 4); Att. C (Decl. of Anita Washington (EEOC), at ¶ 3); Att. D (Decl. of Tracy Bloom (FCC), at ¶ 3); and Att. E (Decl. of Sheri Grier (FTC), at ¶ 6). Accordingly, Plaintiff has failed to exhaust administrative remedies as mandated by 28 U.S.C. § 2675(a), and the negligence claims against each Federal Defendant should therefore be dismissed. See Rule 12(b)(1); Shelton, 775 F.3d at 569 (stating that the FTCA’s requirement of administrative exhaustion is jurisdictional and cannot be waived). 2 In the EEOC’s case, Plaintiff does not allege that an administrative claim was filed on or about November 10, 2013. See Am. Compl. at ¶¶ 509-520. Instead, it appears that Plaintiff is attempting to convince the Court that his initial Federal Court Complaint (filed on January 2, 2015) should serve as the administrative claim. Id. at ¶ 516. This is obviously incorrect, as FTCA’s administrative claims are presented to federal agencies and typically submitted on SF 95 forms or other written notification. See 28 C.F.R. § 14.2(a) (“For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident . . . .”). Case 2:15-cv-00015-NBF Document 353 Filed 09/15/16 Page 5 of 7 6 V. CONCLUSION For the above reasons, the Court should dismiss with prejudice the Plaintiff’s Complaint against all Federal Defendants. Respectfully submitted, DAVID J. HICKTON United States Attorney s/Paul D. Kovac PAUL D. KOVAC Assistant U.S. Attorney Western District of Pennsylvania U.S. Post Office & Courthouse 700 Grant Street, Suite 4000 Pittsburgh, PA 15219 (412) 894-7489 Dated: September 15, 2016 Counsel for Federal Defendants Case 2:15-cv-00015-NBF Document 353 Filed 09/15/16 Page 6 of 7 CERTIFICATE OF SERVICE I hereby certify that on this 15th day of September, 2016, a true and correct copy of the within Federal Defendants’ Motion to Dismiss and the Brief in Support of said Motion was served by postage-paid U.S. Mail, to the following: David Despot Plaintiff, Pro se 27611 Evergreen Run Imperial, PA 15126 DavidDespot@yahoo.com s/Paul D. Kovac PAUL D. KOVAC Assistant U.S. Attorney Case 2:15-cv-00015-NBF Document 353 Filed 09/15/16 Page 7 of 7 Case 2:15-cv-00015-NBF Document 353-1 Filed 09/15/16 Page 1 of 9 Case 2:15-cv-00015-NBF Document 353-1 Filed 09/15/16 Page 2 of 9 Case 2:15-cv-00015-NBF Document 353-1 Filed 09/15/16 Page 3 of 9 Case 2:15-cv-00015-NBF Document 353-1 Filed 09/15/16 Page 4 of 9 Case 2:15-cv-00015-NBF Document 353-1 Filed 09/15/16 Page 5 of 9 Case 2:15-cv-00015-NBF Document 353-1 Filed 09/15/16 Page 6 of 9 Case 2:15-cv-00015-NBF Document 353-1 Filed 09/15/16 Page 7 of 9 Case 2:15-cv-00015-NBF Document 353-1 Filed 09/15/16 Page 8 of 9 Case 2:15-cv-00015-NBF Document 353-1 Filed 09/15/16 Page 9 of 9 Case 2:15-cv-00015-NBF Document 353-2 Filed 09/15/16 Page 1 of 7 Case 2:15-cv-00015-NBF Document 353-2 Filed 09/15/16 Page 2 of 7 Case 2:15-cv-00015-NBF Document 353-2 Filed 09/15/16 Page 3 of 7 Case 2:15-cv-00015-NBF Document 353-2 Filed 09/15/16 Page 4 of 7 Case 2:15-cv-00015-NBF Document 353-2 Filed 09/15/16 Page 5 of 7 Case 2:15-cv-00015-NBF Document 353-2 Filed 09/15/16 Page 6 of 7 Case 2:15-cv-00015-NBF Document 353-2 Filed 09/15/16 Page 7 of 7