Nottingham et al v. United States of America

MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM as to Plaintiff Malik Nottingham Only

E.D. Pa.November 30, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PENNSYLVANIA NATASHA NOTTINGHAM, et al. CivilNo. l6-cv-5119 THE I.INITED STATES OF AMERICA, ORDER AND NOW, thiS day of ,201 . upon consideration of the Defendant's Motion to Dismiss the claims of Malik Nottingham pursuant to l2(b)(l) and 12(b)(6) and all responses filed thereto, it is ORDERED that: l. The Motion is GRANTED. 2. The claim by Malik Nottingham against the United States of America (the Second Count of the complaint) is DISMISSED with prejudice. This matter will proceed with plaintiffNatashaNottingham as the sole plaintiff. BY THE COURT: HONORABLE JOEL H. SLOMSKY Judge, United States District Court v 3 Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 1 of 23 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PENNSYLVANIA NATASHA NOTTINGHAM, et al. Civil No. 16-cv-5119 THE UNITED STATES OF AMEzuCA MOTION TO DISMISS CLAIMS OF MALIK NOTTINGHAM PURSUANT TO RULES 12ftX1) and 12ftX6) Defendant United States of America, respectfully moves to dismiss the claims of Malik Nottingham in above-entitled action pursuant to Rule l2(bxl) and l2(b)(6) of the Federal Rules of Civil Procedure.l Plaintiff failed to exhaust his administrative remedies, and thus the Court cannot hear his claims or grant the relief he requests. The defendant incorporates by reference the accompanying Memorandum of Law. Respectfully submitted, ZANE DAVID MEMEGER United States Attorney v o2"r.,.^ k B--%"-,.?o. fvrr-r1 MARGARET L. HUTCHINSON Assistant United States Attorney Chiel Civil Division PA W. KAUFMAN Assistant United States Attorney Dated: ila/uo t This Motion applies to the claims of plaintiff Malik Nottingham only. Concurrent with this filing, defendant is answering the claims of plaintiff Natasha Nottingham. Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 2 of 23 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PENNSYLVANIA NATASHA NOTTINGHAM, et al. Civil No. 16-cv-5119 THE I-INITED STATES OF AMERICA MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS CLAIMS OF'MALIK NOTTINGHAM Because plaintiff Malik Nottingham neither filed an administrative tort claim nor was a part of the administrative tort claim filed by plaintiff Natasha Nottingham, he has failed to exhaust administrative remedies. More than two years have passed since the collision in question, and thus any action by Malik Nottingham is ooforever barred" pursuant to 28 U.S.C. $ 2401(b). His portion of the instant complaint must therefore be dismissed. I. BACKGROUND: This tort action is brought pursuant to the Federal Tort Claims Act, 28 U.S.C. $ 2671 et seq. ("FTCA"). See Complaint fl l. Plaintiffs claim that a United States Postal Service ("USPS") driver negligently caused a collision with their vehicle on September 14,2014. See Complaint flfl 5-7. Before filing a complaint in federal court, potential claimants are required to file an administrative tort claim with the federal agency in question (here, the USPS) within two years of the alleged tort. See 28 U.S.C. $ 2401(b). This is typically accomplished by submitting a completed Standard Form 95 ("SF-95") to the agency in question. An SF-95 tort claim form relating to the September 14,2014 collision was filed with the Postal Service on or about February 27,2015. That tort claim, dated January 29,2015 and v Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 3 of 23 signed by plaintiff s counsel, R. Thomas Price, Esquire, is attached hereto as Exhibit A. Exhibit A is the only SF-95 tort claim that the USPS received from either plaintiff in relation to this action.2 The SF-95 submitted by plaintifls counsel was filed on behalf of a single individual, plaintiff Natasha Nottingham. See Exhibit A at box 2 (identifying the "claimant" as Natasha E. Nottingham.) Its narrative speaks of its claimant in singular terms. See Exhibit A at box 8 ("Claimant was the driver of vehicle..."). And the damages the SF-95 identifies are those claimed for plaintiff Natasha Nottingham. Compare Exhibit A at box 10 (identifying physical injuries to "claimant") with Complaint at fl l3 (listing each of the injuries in box l0 and others) with Complaint at fl 20 (describing alleged injuries to Malik Nottingham that are found nowhere in SF-95). The SF-95 was accompanied by a cover letter from counsel dated January 30,2015. That letter also referred to Natasha Nottingham as the only plaintiff. See Letter from R. Thomas Price dated January 30,2015, a copy of which is attached hereto as Exhibit B ("Please be advised that I represent Ms. Natasha Nottingham..."). The January 30 letter is consistent with the communications from predecessor counsel, who identified Ms. Nottingham alone as his client. See Letter from Ryan D. Briskin dated November 5,2014, a copy of which is attached hereto as Exhibit C (beginning "Please be advised that this office represents the above individual...," and listing only Natasha Nottingham above). Counsel for plaintiffs followed up on the SF-95 periodically, enclosing additional medical records. For example, on August 17,2015, plaintiffs' counsel provided additional invoices and records from Ms. Nottingham from Upper Darby Pain Management, MRI reports, 2 In June 2015, plaintifls auto insurer filed a separate SF-95 seeking reimbursement for the damage to plaintiff s vehicle. That claim was resolved through the administrative settlement process the FTCA envisions. Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 4 of 23 and operative and hospital reports from Dr. Dodson and Bryn Mawr Hospital. See Letter from R. Thomas Price, a copy of which is attached hereto as Exhibit D. In that letter, counsel referred to his "continued representation of Natasha Nottingham," again with no mention of Malik Nottingham, and submitted only documents pertaining to Ms. Nottingham. Letters dated September 3,2015 and July l3,20l5likewise referred only to Ms. Nottingham's medical condition. Correspondence regarding possible settlement were similar. For example, a letter sent by Mr. Price to USPS in pursuit of settlement on August2,20l6,less than two months before the complaint in the instant action was filed, again refers only to Ms. Nottingham. See Letter from R. Thomas Price dated August 2,2016, a copy of which is attached hereto as Exhibit E. At no time after the collision was an SF-95 claiming consortium damages filed for Malik Nottingham. Nor was correspondence submitted on his behalf asserting a consortium claim. Indeed, no attorney claiming to represent Mr. Nottingham communicated with USPS at all. Ultimately, efforts at administrative resolution of NatashaNottingham's claim failed, and the USPS denied the only open claim that had been submiued to it: Ms. Nottingham's. At no point were Malik Nottingham's claims presented to the defendant to be considered administratively. The first time that these claims were raised was on September 27,2016, when the instant complaint was filed in this Court. The collision alleged occurred on September 14, 2014. Accordingly, the complaint in the instant matter was filed approximately two weeks after the two-year deadline set by 28 U.S.C. $ 2401(b) had passed. II. ARGUMENT: It is a fundamental proposition of law that the United States, as sovereign, is immune Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 5 of 23 from suit, absent an express waiver of its immunity by Congress. See, e.g., Clinton County Commissioners v. United States Environmental Protection Agency, 116 F.3d 1018, l02l (3d Cir 1997) (en banc) (plaintiff "must identify a specific statutory provision that waives the government's sovereign immunity from suit"). The FTCA is such a waiver, but that waiver is subject to specified limitations. The FTCA contains the unambiguous prerequisite that a claimant must first submit her claim for a "sum certain", in writing, to the appropriate agency and must allow the agency a period of six months within which to evaluate and respond to the claim. See 28 U.S.C. S 2675(a); 28 C.F.R. S la.2(a). "The statutory language is clear that a court does not have jurisdiction before administrative remedies have been exhausted and a court must dismiss any action that is initiated prematurely." Wilder v. Luzinski,l23 F. Supp. 2d312,313 (E.D. Pa. 2000) (citing McNeil v. United States, 508 U.S. 106 (1993)). As noted above, such an administrative tort claim must be filed within two years of the time the claim accrues. See 28 u.s.c. $ 2401(b). Courts strictly construe the administrative tort claims procedure, and they strictly apply its deadlines. See, e.q., Livera v. First Nat. State Bank of New Jersey,879 F.2d 1 186, I 194 (3d Cir.), cert. denied, 493 U.S. 937 (1989) ("[T]he Act's established procedures have been strictly construed."); McDevitt v. United States Postal Service ,963 F. Supp. 482, 484 (E.D.Pa. 1997) ("[T]he Third Circuit has required strict compliance with the terms prescribed by Congress as conditions of the federal government's waiver of sovereign immunity."); Ferpuson v . United States, 793 F. Supp. 107, 110 (E.D. Pa. 1992) (same).3 3 In 2015, in a 5-4 decision, the Supreme Court found that the time limits in the FTCA are not jurisdictional. See United States v. Kwai Fun Wong, 135 S. Ct.1625,1638, l9l L.Ed.2d 533 (2015). The impact of this decision on the foregoing plecedents lias not been the subject of Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 6 of 23 A motion to dismiss under Rule l2(b)(l) is "an appropriate vehicle when the plaintiff has failed to exhaust administrative remedies that are a prerequisite to his suit" under the FTCA. Johnson v. United States, 147 F.R.D . 9l , 94 (E.D. Pa. I 993), citing 5A C. Wright and A. Miller, Federal Practice and Procedure: Civil2d S1350 at 195 (1990); Johnson v. Agape Ministries/Agape Baptist Church,20l6WL2866522 at*3. On a challenge to subject matter jurisdiction under Rule 12(b)(l), "the plaintiff must bear the burden of persuasion," Kerr Packages, [nc. v. Fidelcor, Inc ,926F.2d1406,1409 (3d Cir. l99l). Because the Court could not grant relief to a plaintiff who is bringing a case that is beyond the statute of limitations, a motion to dismiss asserting the statute of limitations is decided pursuant to Rule 12(bX6). Cases like this one have arisen repeatedly over the last three decades, and numerous judges of the Eastern District have dismissed claims brought by spouses who did not administratively exhaust their claims. See, e.g. Smiley v. Artisan Builders, No. l3-cv-74I1, 2015 WL 996366, at *3 (E.D. Pa. Mar. 4,2015) (Jones, J.); Gland v. United States, No. 03-cv- 1697,2003 WL2309491t, at *5 (E.D. Pa. Dec. 16,2003) (Baylson, J.); Duean v. United States, 96 F. Supp .2d 481 (E.D. Pa. 2000) (Reed, J.); Schwartzman v. Carmen, 995 F. Supp. 574, 576 (E.D. Pa. 1998) (Bartle, J.); Yillah v. United States,98-*v-2842, 1998 WL 661545 (E.D. Pa. an opinion of this court, and at least one court in this district, faced with a nearly identical factual context, has continued to treat the requirement to file an administrative claim as jurisdictional. See Johnson v. Asape Ministries/Asape Baptist Church, No. l6-cv-254,2016 WL2866522, *3 (E.D. Pa. May 17,2016). This may suggest that the administrative process is jurisdictional if it is not pursued at all, as opposed to being pursued in a dilatory fashion. Regardless of whether the claim process is jurisdictional or is simply a statute of limitations, though, the United States respectfully submits that waivers of sovereign immunity ought still to be strictly construed. In light of the foregoing, the United States submits the instant motion pursuant both to Fed. R. Civ. P. l2(b)(l) and Rule l2(b)(6) and with only documents that the Court rnight consider pursuant to either Rule - see n.4, infra - so that the Court need not address this j urisprudential conundrum. Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 7 of 23 Sept. 24, 1998) (Buckwalter, J.); Klimaszewski v. United States,1997 WL 177792 (E.D. Pa. 1997) (Bartle, J.); Murray v. United States,604 F. Supp. 444 (8.D. Pa. 1985) (Shapiro, J.); McDevitt v. United States Postal Serv .,963 F. Supp. 482, 484 (E.D. Pa 1977) (Joyner, J). The universal holding of the courts of this District echoes Judge Bartle's decision in Klimasewski: "If a spouse wants to sue the United States for her loss of consortium, she must follow the procedures delineated in the FTCA. Karen Klimasewski did not do so. Her claims shall be dismissed." Klimasewski, 1997 WL 177792 at*1. The record here is uniform and indisputable: from the time of the collision in 2014 until this case was filed two months ago, Natasha Nottingham was the only claimant. She is the only individual named in the SF-95, the only individual identified as represented by plaintiffs' counsel, and the only individual mentioned in any correspondence from plaintiffs' counsel during the administrative tort claim process.a Malik Nottingham never comes up. He never a The Court may freely consider documents outside the pleadings in considering a 12(bX1) motion. See Gotha v. United States I 15 F. 3d 176, 179 (3d Cir. 1997); Dugan v. United States, 96 F. Supp.2d 461 (E.D. Pa 2000). In deciding a 12(b)(6) motion, normally the Court may only consider a limited universe of documents outside the pleadings. With respect to Exhibits A and B (the SF-95 and the cover letter that accompanied it), documents expressly referenced in a complaint may be considered in a 12(b)(6) motion, even if they are not attached to it. See, e.g. City of Pittsburgh v. West Penn Power Co. , 147 F.3d256, 259 (3rd Cir. 1998). Paragraph 1l of the Complaint refers to a January 30 claim. The cover letter (Exhibit B) is dated January 30,2015, and the SF-95 enclosed with it (Exhibit A) is dated the day before. Accordingly, Exhibits A and B are expressly referenced in the complaint and may be considered by the Court under either Rule. The Court could stop here. The SF-95 alone is sufficient to demonstrate that there was no consortium claim brought, and any lingering ambiguity is resolved by Exhibit B, the cover letter to which plaintiff refers in fl 11 of the Complaint, which identifies Natasha Nottingham as the only individual represented by counsel. To the extent that the Court wished to consider the additional correspondence, though, it could do so, even in the l2(b)(6) context, and without converting the motion to dismiss into a motion for summary judgment pursuant Rule 12(d). "Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint, the necessity of translating a motion to dismiss for failure to state a claim into one for surnnrary judgment is largely dissipated." Chambers v. Time Warner" Inc. ,282 F.3d 147 (2d Cl.:.. Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 8 of 23 files an administrative tort claim, provides documents demonstrating damages, attempts to negotiate a settlement, or even corresponds with the USPS. His claims were never submitted, never considered, and never exhausted. His portion of this action must therefore be dismissed. And that dismissal must be with prejudice. Plaintiff had two years to file an administrative tort claim, see 28 U.S.C. $ 2401(b), but those years have now past. Accordingly, his claim is "forever barred."5 Id. 2002). Exhibits C, D, and E are on plaintiff s counsel's own letterhead, bear his signature, and were sent by him to the USPS during the tort claim process. These documents are indisputably authentic, and plaintiff relied on those documents and the information they contain in framing his complaint. Thus, even though the SF-95 alone provides all information the Court needs to determine this motion, the Court may consider all four letters from counsel attached as exhibits, should it find them useful. 5 As noted above, the Supreme Court's decision in Wong raises at least the possibility that equitable tolling could extend the deadlines for submission of the SF-95. However, there is no basis for equitable tolling here. The "remedy of equitable tolling is extraordinary, and we will extend it only sparingly." Hedges v. United States , 404 F .3d 744, 7 5l (3d Cir. 2005). Equitable tolling requests are judged by exacting standards. Johnson v. United States, No. 3:14-cv-753,2016 WL 4497066, at *5 (M.D. Pa. June 22,2016), report and recommendation adopted, No. 3:14-cv-753,2016 WL 4493363 (M.D. Pa. Aug. 26,2016). Those exacting standards are doubly appropriate here: "In FTCA actions it is especially appropriate to be restrictive with respect to extension of equitable tolling in cases involving the waiver of the sovereign immunity of the United States." Johnson, 2016 WL 4497066, at *5 (intemal citations omitted). "Equitable tolling may apply to FTCA claims only in three instances: '(1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Hedges, 404F.3d at 75l(intemal citations omitted)." No such basis exists here. The USPS did nothing to mislead Malik Nottingham; indeed, as described above, it never communicated with him or with anyone who claimed to represent him at all. Nor could Mr. Nottingham have been confused about either the proper forum or the proper cause of action. The same attorneys who represent him represented his wife throughout the administrative process, and there was never any question or confusion about either the United States' responsibility for the actions of the USPS driver or the process that counsel needed to follow. The Nottinghams come to this Court ably represented by attorneys with extensive experience at the bar, counsel who have demonstrated their knowledge of the FTCA administrative process by submitting an administrative tort claim, following up with medical records, and attempting to negotiate settlement with USPS authorities. The precedent in this Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 9 of 23 il. CONCLUSION: Malik Nottingham and his counsel had two years to advise the USPS that his consortium claims existed and to pursue those claims administratively. Despite years of correspondence regarding Natasha Nottingham's case, no one advised the USPS that Malik Nottingham had such claims, much less submitted them to the USPS. The law of this district is uniform, and it is clear: a spouse who does not submit an administrative tort claim may not pursue a consortium action in district court. Malik Nottingham's claims must therefore be dismissed. Respectfully submitted, ZANE DAVID MEMEGER United States Attomey l\ K MARGARET L. SON Assistant United States Attorney Chief, Civil Division P Assistant ted States Attorney District could not be clearer or longer-standing: if Mr. Nottingham wished to bring a federal court action, he had to file an administrative tort claim. Despite the presence of experienced counsel to advise him, he did not do so, in the tort claims process or anywhere else. Nothing extraordinary prevented him from filing a tort claim. He just didn't. Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 10 of 23 CERTIFICATE OT' SERVICE I hereby certifr that a copy of the foregoing Motion to Dismiss and Memorandum of Law was served by electronic mail through the Clerk of Court's ECF system upon coutsel of record for plaintiff. w. Assistant United States Attorney Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 11 of 23 Exhibit A Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 12 of 23 CLAIM FORDAMAGE, INJURY,ORDEATH the instructions on the reverse side -and FORM APPROVED .ll0anX[8 INSTRUCTIONS: Please read caretully 6OMBNO ' Use additional shee(s) l. Submit to Appopriate Rderal fueiry: United States PostaI Service PA 1. 5" MARITALSTATUS S'insle I e. oaTe AND DAY OF ACCIDENT ls,r.,d"l, . g /L4/zOLh l7.rT.$B(A-M. or P.M.) lll rlo .o -m-l, DATEOFBIRTTI3. TYPEOFEMPITOYMENT ElrranrranY El cwuerv and the cause thereof.) (Use additional page if nzcessary.) mant was -diiver oi -vehicle t.raveling southbound on' Cobbs Creek Pkwy in Philadelphia, PA when post,al truck struck the passenger side of ' her vehicle. 8. CIai Clfim (State in tleuil the btown facu circlrnsldnce$ penoas ariil property involveil, the place oJthe ilanage, injury, or (Nmtber, streel city, StAeAI{D ADDRESS OF OWNER. IF Nat.asha Nottlngham (See Instactions on reverse side,) Damage to passenger side quarter panel and Lwo doors. 5915 Eltrsworth Street, Phila., PA L9L43 BRIEFLY DESCRIBETHE PROPERTY. NATT'REAND EXIENT OF DAMAGE AND TIIE ITCATION WHERE PROPERTY l,[AY BB INSPECTED. ECEil ViE US POSTA I qFA\./rrtrPENSONAI, ITdJURY/WRONGFT'L DEAIUt0. sErain, aspr-naEu bulgipgs tendon r1g ESC hcra TI{EFORMSWHICHIN]URYEAGIE)(TENT OF ORPERSON DECEDENT. c ].rv acOFNAME INJI,]RED f 1T h t, Su rS eat r ouF tI ht eckn1_ pg city, State arrdzipADDRESS. NAME Shanier Parker l?;d. T0TN-(Failureto rights.) $505,01/a THWRONGFI,]L ofyourspec{ymay 00.rox. 000 PERSONALINJI,'RY $500,000.A PROPERTYDAIvIA@ BY TTIE INCIDEM ABOVE AITIDI CERTIFYTgA TOANDINJURIES OFTHIS OF CI.JTIMCOVERS ONLY TfiiFACIION L/2e/zoLs 14. SIGNATTJRE (2t5) s46- 4L1.4 l3b. Phone of sign4toryOF r€verseon side CIIUM OR MAKNG FAI.SE STATEMEI{TS Fine of not more than $10,000 or imprisonment fc not mre than 5 years a both- (Sae 18u.s.c.287, 10U.) CRIMINAL PRF,SThITING ERAT]DTJLENT The claimant shall forfeit and pay o tbc United States tbe sum of $2,000 dorble the arrcunt of damSes sustained by the United Staes. (See 31 CTVIL I.RATIDULENT CLAIM TORPNDStsNTING t02 95-109 the fed€ral tort claims act 7-29{8 ds @ 2008 by joseph p. gtfffi, jr. joegrif 6t!ir@hotmaif com www jcgrifEtb-com 8$-n5-5563 NsI't 7510&63,1416 0e.7as)@c) Fage 32 of33 PRESCRIBED BTDEPT. OF ruSNCE 28 CFR 14,2 Case 2:16-cv-05119-JHS Document 5 Filed 11/30/16 Page 13 of 23 B. 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(D) In sryponof chim fu .lmgc toFqctty shichhastecnm cabc ocolosielty repana, ii claima $oildErbmitu hasr rwoiroizcd sigrd sqilffisccnioat* ty raia*, atimcratca cccms, cr, if paymeorbas bccam&, thcn"Eizd t{gtrGd rceips cvi&ring.payrEe {c) h sqport of claims fu a".qgp ro lf,oP.tty ufrich's uot ecoodcally rqairable' c if tb ed;fiy is bd ot dc