Morales-Santiago v. United States of America (Dept. of Veterans Affairs)

MOTION to Dismiss/Lack of Jurisdiction

D.P.R.June 1, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO ISAAC MORALES-SANTIAGO, BENITA GONZALEZ-GONZALEZ, AND THE CONJUGAL PARTNERSHIP COMPRISED BETWEEN THEM, Plaintiffs, v. VA EURIPIDES RUBIO CLINIC-PONCE OUTPATIENT CLINIC/VETERANS HOSPITAL, Defendants. CIVIL NO. 17-1265(PAD) MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS TO THIS HONORABLE COURT: COMES NOW the United States of America, (U.S. Department of Veterans Affairs or “VA” or “United States”), through its undersigned attorneys, without submitting to the jurisdiction of the Court, and pursuant to Rules 12(b)(l), and 12(b)(2), 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, as set forth below: I. THE COMPLAINT’S ALLEGATIONS 1. Plaintiffs allege that on or about November 18, 2015, they went with Mr. Morales to the VA hospital Outpatient Clinic in Ponce to take a bus that will take them to an appointment at the VA in San Juan, P.R. Compl. ¶ 4. 2. It is further alleged that Plaintiffs arrived safely to the VA Hospital in San Juan. However, in the return trip to the VA Hospital Outpatient Clinic in Ponce, they were hurt as a result of the bus crashing with some pipes at the entrance of the emergency hallway. Compl. ¶¶ 5-8. Case 3:17-cv-01265-PAD Document 8 Filed 06/01/17 Page 1 of 5 3. It is also alleged by the Plaintiffs that the driver of the bus with license plate VA 23857 was negligent while driving the Bus, by not taking the appropriate precautions when entering the Emergency hallway of the Veterans Outpatient Clinic in Ponce. Compl. ¶ 7 II. LEGAL ARGUMENTS A. Standard of Review. 4. 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. Menendez v. United States, 67 F.Supp.2d 42 (D. P.R. 1999). Where subject matter jurisdiction is lacking, dismissal, not summary judgment is the appropriate disposition. Mackay v. Pfeil, 827 F. 2d 540,543 (9th Cir. 1987). In considering a motion to dismiss under F.R.C.P. 12(b)(6), the Court accepts the allegations in the Complaint as true and draws all reasonable inferences therefrom in the Plaintiffs’ favor. Gilmore v. Citigroup, Inc., 535 F.3d 45, 51 (1st Cir. 2008) (citing Marrero-Gutierrez v. Molina, 491 F.3d 1, 4 (1st Cir. 2007). 5. 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.2d. 196,198 (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. Igbal, 129 Set. 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, Case 3:17-cv-01265-PAD Document 8 Filed 06/01/17 Page 2 of 5 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 for Lack of Subject Matter Jurisdiction for Failure to Exhaust Administrative Remedies Pursuant to F.R.C.P 12(b)(l). 6. 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 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. 28 U.S.C. § 2675. Plaintiffs never filed an administrative claim and hence, the complaint against the defendants should be dismissed for lack of subject matter jurisdiction. See, Mitrano’s Declaration attached as Exhibit A. 7. A plaintiff may not file a claim under the Federal Tort Claims Act (28 U.S.C. '' 2671-2680 or “FTCA”) in court 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." Kadar, LLC v. United States, F.Supp.2d (D.R.I. 2012). Exhaustion of administrative remedies is a non- waivable jurisdictional requirement. Acosta v. United States Marshalls Service; 445 F.3d 509 (l51 Cir. 2006); Cotto v. United States, 973 F.2d 274, 279 (1st Cir. 1993). 8. As evidenced by Mitrano’s Decl., VA’s Chief Counsel, Plaintiffs failed to file an administrative claim to the VA. See Exhibit A. C. Failure to Properly Serve the United States. 9. This action was initiated with the filing of a Complaint on December 27, 2016 before the Ponce Superior Court of the Commonwealth of P.R. Case 3:17-cv-01265-PAD Document 8 Filed 06/01/17 Page 3 of 5 10. As of this date, Plaintiff has failed to properly serve the Defendants. Plaintiffs only served the VA on February 2, 2017. 11. Federal Rule of Civil Procedure 4(i)(l ) 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. 12. 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)(l ), and by also sending a copy of the summons and complaint by registered or certified mail to the officer, employee or agency. 13. Federal Rule of Civil Procedure 4(m) states that service of the summons and complaint must be made upon a defendant within 90 days after the filing of the complaint. 14. More than 90 days have passed since the filing of the Complaint and the Defendants have not been properly served. 15. Upon information and believe, the Attorney General of the United States at Washington, District of Columbia, has not been served with a copy of the summons and thi complaint, as required by Rule 4(i)(l)(A) and Rule 4(i)(l)(B). 16. 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 (71Cir. 2001). Case 3:17-cv-01265-PAD Document 8 Filed 06/01/17 Page 4 of 5 17. FRCP 4(m) limits the time to effect service upon a defendant to 90 days after the filing of the complaint: If a service of the summons and complaint is not made upon the defendant within 90 days after the filing of the complaint, the court, upon motion or its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. WHEREFORE, the United States respectfully prays to this Honorable Court to DISMISS the Complaint without prejudice for failure to exhaust the administrative remedied under the FTCA and for lack of proper service on the United States. 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: NONE; the undersigned counsel also certifies that copy has been electronically served on Plaintiffs’ counsel, Vanessa T. Vega, at Junior_law@hotmail.com. In San Juan, Puerto Rico, this the 1st day of June 2017. ROSA EMILIA RODRIGUEZ-VELEZ UNITED STATES ATTORNEY s/ Agnes I. Cordero Agnes I. Cordero Assistant United States Attorney USDC- PR# 126101 Torre Chardon, Suite 1201 350 Carlos Carlos E. Chardon Street Hato Rey, Puerto Rico 00918 Tel. -787-766-5656/ Fax: 787-766-6219 Email: Agnes.Cordero@usdoj.gov Case 3:17-cv-01265-PAD Document 8 Filed 06/01/17 Page 5 of 5 Case 3:17-cv-01265-PAD Document 8-1 Filed 06/01/17 Page 1 of 3 Case 3:17-cv-01265-PAD Document 8-1 Filed 06/01/17 Page 2 of 3 Case 3:17-cv-01265-PAD Document 8-1 Filed 06/01/17 Page 3 of 3