Figueroa-Matos et al v. Food And Drug Administration et al

MOTION to Dismiss/Lack of Jurisdiction as to All Plaintiffs

D.P.R.September 9, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO LUZ ELENA FIGUEROA-MATOS, LUIS ANGEL VARELA SILVA Plaintiffs, v. UNITED STATES OF AMERICA FOOD AND DRUG ADMINISTRATION, (F.D.A.); ABC INSURANCE COMPANY, RICHARD ROE, his wife JANET DOE, the LEGAL PARTNERSHIP comprised by them, Defendants. CIVIL NO. 16-1582-PAD MOTION TO DISMISS AND MEMORANDUM IN SUPPORT TO DISMISS COMPLAINT TO THIS HONORABLE COURT: COMES NOW Defendant, the United States of America (United States), and without submitting to the jurisdiction of this Honorable Court, respectfully STATES AND PRAYS: 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), 12(b)(4), 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 insufficiency of service of process. 2. The Complaint in this action naming the United States of America Food and Drug Administration1, (F.D.A.) as Defendant was filed on March 31, 2016. (ECF No. 1). F. R. Civ. P. 4(i)(1)(A) and (B) requires service of copy of the summons and complaint to be served on the United States Attorney and the Attorney General of the United States within 90 days of filing the complaint, or not later 1 The federal agency is known as the Food and Drug Administration and by its short codified name, Federal Food, Drug, and Cosmetic Act, and it is an agency of the United States Department of Health and Human Services (HHS), codified in 21 U.S.C. § 301 et seq. Case 3:16-cv-01582-PAD Document 10 Filed 09/09/16 Page 1 of 10 2 than June 29, 2016 in this case. See, Fed.R.Civ.P.4 (m) which establishes the time limit for service2. 3. Only the Food and Drug Administration (FDA) was served on May 11, 2016 (ECF No. 5). According to F. R. Civ. P. 4(i)(1)(C) the federal agency must be served only if the action challenges an order of a non-party agency or officer of the United States. The instant case challenges no order from the FDA. 4. As of this date, Plaintiff has not complied with F. R. Civ. P. 4(i)(1)(A) and (B) to the effect of serving copy of the summons and complaint to the United States Attorney for the district of Puerto Rico and the Attorney General of the United States within 90 days of filing the complaint, or not later than June 29, 2016. Fed. R. Civ. P. 4(m). See, Exhibit A, attesting failure to serve the Attorney General. 5. Therefore, this Honorable Court lacks subject matter jurisdiction, personal jurisdiction and the case should be dismissed. 6. The 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 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). 7. The Plaintiff Cannot Show “Good Cause.” 2 Until November 30, 2015 the time limit for service was 120 days, but it was amended on December 1, 2015 to 90 days. Case 3:16-cv-01582-PAD Document 10 Filed 09/09/16 Page 2 of 10 3 In the instant case, 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). 8. The United States hereby “clearly alleges the insufficiency of service of process”, since Plaintiff has failed to serve the United States Attorney and the Attorney General. Miranda v. United States, 857 F.2d. 20 (1st Cir. 1998). 9. Also, in Hearst v. West, 31 Fed. Appx. 366, 367; 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 for failure to serve the Defendant within 120-days. Hearst filed suit in the federal district court on April 12, 1999l. On July 15, 1999 the Court entered an order to show cause for plaintiff’s failure to prosecute (failure to serve Defendants). Then Plaintiff served the Secretary of Veterans Affairs on July 26, 1999. The Court entered another order to show cause on November 2, 1999 why case should not be dismissed for failure to prosecute; the Plaintiff after retaining counsel, then served the United States’ Attorney General Office, both in Washington, D.C. and Los Angeles California, on December 9, 1999. 10. Plaintiffs in the instant case filed suit on March 31, 2016; however, Plaintiffs still have failed to serve the Attorney General. Like Hearst, Plaintiffs served some of the parties mandated by Rule 4(i)(1), but not all. Specifically, they failed to serve the United States Attorney for this district 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 Case 3:16-cv-01582-PAD Document 10 Filed 09/09/16 Page 3 of 10 4 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”). 11. 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). 12. 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 Plaintiffs 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). 13. However, for a recent decision after the amendment to the Federal Rules of Civil Procedure effective on December 1, 2015, see Matta v. Government of the Virgin Islands, 2016 WL 122954. “A district court may dismiss with prejudice only when the plaintiff’s failure to serve process amounts to a failure to prosecute (citations omitted). Such a dismissal is authorized by Rule 41(b), which provides that ‘[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court Case 3:16-cv-01582-PAD Document 10 Filed 09/09/16 Page 4 of 10 5 order, a defendant may move to dismiss the action or any claim against it.” Unless otherwise stated dismissals under Rule 41(b) are with prejudice (citations omitted).” Id. The Court goes on to discuss six (6) factors considered in the Third Circuit Court of Appeals when determining whether to dismiss claims pursuant to Rule 41, citing the case of Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984)3. Id. The Plaintiffs have demonstrated their general unwillingness to promote their Claim, and thus, is needlessly expending the United States’ and the Court’s resources and time. II. The Only Proper Party Defendant is the United States 14. Failure to name the United States 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. 15. 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. 16. Even if the Plaintiffs 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. 17. The United States is self-insured and therefore, there is no insurance company providing coverage for the alleged tortious acts. Therefore, ABC Insurance Company must also be excluded from 3 The six factors are: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Case 3:16-cv-01582-PAD Document 10 Filed 09/09/16 Page 5 of 10 6 the lawsuit. 18. Plaintiffs include in the Complaint as named unknown defendants Richard Roe and his wife Janet Doe, and the legal partnership comprised by them. However, Plaintiffs allege that the federal employee driving the federal government owned vehicle (GOV) was Adeliz Santaliz-Cruz. Compl. ¶ 10. They also allege that the claims brought herein are under the Federal Tort Claims Act (FTCA). Compl. ¶ 4. Only the United States may be sued under the FTCA, See, 28 U.S.C. §§ 2671 and 2674 4. 19. Furthermore, 28 USC § 1346 (b) states the basis for claims as the “negligent or wrongful act or omission” of any government employee while acting within the scope of his/her employment. 20. The United States submit that any claims against the individual federal defendants and their respective conjugal partnerships must be dismissed. First an action against a federal employee while acting within their scope of employment is an action against the sovereign, the United States of America. Moreover, because the spouse of Adeliz Santaliz-Cruz clearly had no personal involvement in the alleged actions against the federal employee, the action against the spouse must also be dismissed. 21. Plaintiffs have totally failed to allege how the spouse of the individual federal defendant was involved in the claims being raised by Plaintiffs. Generally, see Complaint. Clearly, the spouse of the individual federal defendant could have nothing to do with her action while working at the AFDA,@ and there is no basis for naming them as defendants in this case. Morales v. Ramirez, 906 F.2d 784 (1st Cir. 1990) (the four defendants= conjugal partnerships were also sued in the Bivens claim. Because the presence of spousal parties is immaterial to the issues before us, we treat Morales as if she were the sole plaintiff and likewise ignore the references to defendants= conjugal partnerships); Stout v. Robnett, 107 F. Supp. 2d 699, 702 (D. S.C. 2000) (clearly the spouses could have had nothing to do with the actions of the federal officers, and there is no basis for naming them as defendants except to corruptly intimidate or 4 See, 28 USC § 2674. Liability of the United States The United States shall be liable, respecting the provisions of this title relating to a tort claims, …” Case 3:16-cv-01582-PAD Document 10 Filed 09/09/16 Page 6 of 10 7 impede the agent husbands by threats against their families); Hearn v. Internal Revenue Agents, 623 F. Supp. 263, 264 (N.D. Tex. 1985)(plaintiffs sought to add as defendants the spouses of the named Defendants. The Court denied this request.); Rylander v. Defendants, 1979 WL 1530 (E.D. Cal. 1979) (while no motion has been made to dismiss the spouses of the named defendants, the Court does so sua sponte. There appears to be no basis for naming them in this action.). 22. Because the presence of spousal parties is immaterial to the issues before this Court, the Court must dismiss with prejudice the claims made against the conjugal partnerships of the individual federal defendant. 23. The Complaint attempts to set forth common law tort claims against the individual federal defendant, misnamed as Janet Doe (Adeliz Santaliz-Cruz is the FDA federal employee who was acting within the scope of her employment when the car accident occurred) and her husband, inasmuch tort damages are requested. See Complaint. The United States should be substituted as the federal defendant in this case and any claims brought against Adeliz Santaliz-Cruz, her husband, and their conjugal partnership, must be dismissed because this Court lacks subject matter jurisdiction over the tort claims against both. III. Plaintiff Luis Angel Varela-Silva Failed to Exhaust Administrative Remedies 24. Moreover, Plaintiff, Luis Angel Varela-Silva has not filed an administrative claim, as required by the Federal Tort Claims Act (28 U.S.C. '' 1346(b)(1) and 28 U.S.C. § 2671-80 or “FTCA”), and therefore, he is barred from filing this complaint. 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 accident occurred on May 13, 2014, the two years for filing an administrative claim expired on May 13, 2016. In other words, Plaintiff Luis Angel Varela-Silva has failed to exhaust the administrative remedies Case 3:16-cv-01582-PAD Document 10 Filed 09/09/16 Page 7 of 10 8 mandated by the FTCA. 25. 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). 26. 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). 27. 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). 28. 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 Case 3:16-cv-01582-PAD Document 10 Filed 09/09/16 Page 8 of 10 9 deprives the district court of jurisdiction over tort claims against the government. Richman v. United States, 709 F.2d 122, 124 (1st Cir. 1983). 29. No administrative claim has been filed regarding these facts, by Plaintiff Luis Angel Varela- Silva. Only Co-plaintiff, Luz Elena Figueroa-Matos filed an administrative claim (SF-95) on October 20, 2014 and an Amended administrative claim (SF-95) on June 30, 2015. Both administrative claims are, respectively, attached as Exhibits B & C. Prior to these claims, Mrs. Figueroa-Matos filed multiple SF-95s that were incomplete or invalid. 30. 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 to Plaintiff Luis Angel Varela-Silva, and the same it is already time-barred. Therefore, the United States respectfully moves this Honorable Court to dismiss plaintiff, Luis Angel Varela-Silva’s Complaint. VI. Conclusion Even if after the amendments to the Federal Rules of Civil Procedure that entered into effect on December 1, 2015, a dismissal for failure to timely effect service of process does not warrant a dismissal with prejudice (Matta, supra), the fact that the United States is not the proper party defendant or the named party defendant, does warrant a dismissal with prejudice under the premises dictated in the case of Roman v. Townsend, supra. Moreover, the Plaintiff’s failure to properly serve the United States constitutes a failure to prosecute their case. Furthermore, the lawsuit by Plaintiff, Luis Angel Varela-Silva is forever barred for failure to exhaust the administrative remedies within the two years prescribed by 28 U.S.C. §2401(b). _____________________ Case 3:16-cv-01582-PAD Document 10 Filed 09/09/16 Page 9 of 10 10 WHEREFORE, it is respectfully requested from this Honorable Court to dismiss the instant Complaint with prejudice. RESPECTFULLY SUBMITTED in San Juan, Puerto Rico, this the 9th day of September, 2016. I hereby certify that on this date, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will automatically notify 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-01582-PAD Document 10 Filed 09/09/16 Page 10 of 10 EXHIBIT A Case 3:16-cv-01582-PAD Document 10-1 Filed 09/09/16 Page 1 of 2 Cordero, Agnes (USAPR) From: Jones, Regina E. (CIV) Sent: Monday, August 29, 2016 4:48 PM To: Cordero, Agnes (USAPR) Subject: RE: Emailing: 16-1582_DOCKET 01_COMPLAINT_page 08.pdf, 16-1582_DOCKET 05 _SUMMONS EXECUTED ON FDA.pdf There is no service date for the AG yet. Thanks for your patience. Regina Case 3:16-cv-01582-PAD Document 10-1 Filed 09/09/16 Page 2 of 2 EXHIBIT B Case 3:16-cv-01582-PAD Document 10-2 Filed 09/09/16 Page 1 of 7 Case 3:16-cv-01582-PAD Document 10-2 Filed 09/09/16 Page 2 of 7 Case 3:16-cv-01582-PAD Document 10-2 Filed 09/09/16 Page 3 of 7 Case 3:16-cv-01582-PAD Document 10-2 Filed 09/09/16 Page 4 of 7 Case 3:16-cv-01582-PAD Document 10-2 Filed 09/09/16 Page 5 of 7 Case 3:16-cv-01582-PAD Document 10-2 Filed 09/09/16 Page 6 of 7 Case 3:16-cv-01582-PAD Document 10-2 Filed 09/09/16 Page 7 of 7 EXHIBIT C Case 3:16-cv-01582-PAD Document 10-3 Filed 09/09/16 Page 1 of 7 __________________ ROBERTO RAFOLS DAVILA LAW OFFICES bufeterafols@hotmail.com s/Roberto Rafols Davila Case 3:16-cv-01582-PAD Document 10-3 Filed 09/09/16 Page 2 of 7 Case 3:16-cv-01582-PAD Document 10-3 Filed 09/09/16 Page 3 of 7 Case 3:16-cv-01582-PAD Document 10-3 Filed 09/09/16 Page 4 of 7 Case 3:16-cv-01582-PAD Document 10-3 Filed 09/09/16 Page 5 of 7 Case 3:16-cv-01582-PAD Document 10-3 Filed 09/09/16 Page 6 of 7 Case 3:16-cv-01582-PAD Document 10-3 Filed 09/09/16 Page 7 of 7