Reidel, Jennifer v. United States of America

Brief in Support of 5 Motion to Dismiss

W.D. Wis.November 16, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONIN ______________________________________________________________________________ JENNIFER A. REIDEL, Plaintiff, v. Case No. 16-cv-607-wmc UNITED STATES OF AMERICA, Defendant. ______________________________________________________________________________ UNITED STATES’ MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) ______________________________________________________________________________ Defendant, United States of America, by its attorneys, John W. Vaudreuil, United States Attorney for the Western District of Wisconsin, and Assistant United States Attorney Barbara L. Oswald, hereby submits this memorandum of law in support of its Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6). FACTS ALLEGED IN THE COMPLAINT Plaintiff Jennifer A. Reidel (“Plaintiff”) sued the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, claiming that as a result of negligence on the part of the United States, she was injured when she slipped and fell at the Post Office in Elk Mound, Wisconsin. (Compl., ¶ 5, ECF No. 1). Plaintiff further alleges that pursuant to 28 U.S.C. § 2675, she filed a written administrative claim with the United States Postal Service (“USPS”) and received a written denial of that claim from the USPS on March 8, Case: 3:16-cv-00607-wmc Document #: 6 Filed: 11/16/16 Page 1 of 5 2 2016. (Id., ¶ 3). 1 ARGUMENT Plaintiff filed this lawsuit on September 14, 2016, six months and six days after the denial of her claim was mailed. Because plaintiff failed to file this suit within six months of the denial of her administrative claim, her claim is barred under 28 U.S.C. § 2401(b). I. LEGAL STANDARDS APPLICABLE TO A MOTION UNDER RULE 12(b)(6) To survive a motion under Rule 12(b)(6), a complaint must set forth “sufficient factual matter” to state “a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. Jones v. Bock, 549 U.S. 199, 214 (2007). If a complaint on its face shows that relief is barred by the applicable statute of limitations, 1 Plaintiff’s administrative claim and the USPS’s denial letter are attached to the United States Motion to Dismiss as Exhibits A and B, respectively. While the court generally may not consider matters extraneous to the pleadings when ruling on a motion under Fed. R. Civ. P. 12(b)(6), it "may consider documents attached to a complaint, or documents referred to in a complaint which are central to the plaintiff's claim, as well as judicially noticed documents and reports of administrative bodies, without converting a motion to dismiss into a motion for summary judgment.” Mekelburg v. Potter, 2010 U.S. Dist. LEXIS 13463 (E.D. Wis. Feb. 16, 2010), citing Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). For example, a plaintiff=s complaint to the EEOC may be considered on a motion to dismiss because it is integral to the complaint. See International Audio Text Network v. American Tel. Co., 62 F.3d 69, 72 (2nd Cir. 1995) (per curiam). Importantly, a plaintiff cannot prevent the court from looking at the texts of the documents on which a claim is based by failing to attach or explicitly cite to them. In re Burlington Coat Factory, 114 F.3d 1410, 1426 (3rd Cir. 1997). Because Plaintiff references her administrative claim and the written denial in her Complaint, and because they are central to her claim, this Court may properly consider the claim and the denial letter without converting this motion to a motion for summary judgment. Case: 3:16-cv-00607-wmc Document #: 6 Filed: 11/16/16 Page 2 of 5 3 the complaint is subject to dismissal for failure to state a claim. Id. II. PLAINTIFF’S CLAIM IS BARRED BY 28 U.S.C. § 2401(b) Under 28 U.S.C. § 2401(b), a tort claim against the United States is barred unless it is presented to the appropriate agency and the action is begun within six months after the date of mailing of the final denial of the claim by the agency. 2 This statute of limitations is a condition of the United States’ waiver of sovereign immunity and is strictly construed. See E.Y. ex rel. Wallace v. United States, 758 F.3d 861, 867 (7th Cir. 2014)(The FTCA’s “statute of limitations is a condition of the [United States’] waiver of sovereign immunity and should not be extended by judicial interpretation.”). The six month limitations period runs from the day after the denial is mailed, to the day before the same calendar date six months later. Tribue v. United States, 826 F.2d 633, 635 (7th Cir. 1987). Under the federal regulation interpreting 28 U.S.C. § 2401(b), “Final denial of an administrative claim shall be in writing and sent to claimant, his attorney, or legal representative by certified or registered mail. 28 C.F.R. § 14.9. Thus, 2 Section 2401, Title 28 of the United States Code reads: 28 U.S.C. § 2401. Time for commencing action against United States (a) Except as provided by Chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of the action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases. (b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. Case: 3:16-cv-00607-wmc Document #: 6 Filed: 11/16/16 Page 3 of 5 4 the six-month limitation period is triggered by mailing of the denial letter to a claimant’s attorney. See Shoff v. United States, 245 F.3d 1266, 1267 (11th Cir. 2001)(“We believe the language of 28 C.F.R. § 14.9 means what it says: the final denial of a claim may be sent to a claimant or his attorney)(emphasis in original); Jackson v. United States, 751 F.3d 712, 718 (6th Cir. 2014)(“In sum, the plain language of the FTCA indicates that the [agency’s] mailing the denial letter triggered the six-month limitation period . . . Furthermore, [28 C.F.R. § 14.9] clarifies that the agency was required to send the denial letter to either Jackson or her attorney, not Jackson and her attorney)(emphasis in the original). In this case, the denial of Plaintiff’s administrative claim was mailed on March 8, 2016, to Plaintiff’s attorney. See Exhibit A; Compl., ¶ 3, ECF No. 1. Consequently, the six month limitations period ran from March 9, 2016, to September 8, 2016. Tribue, 826 F. 2d at 635. The Complaint in this case, however, was not filed until September 14, 2016, six months and six days after the denial was mailed. Compl, ECF No. 1. As a result, Plaintiff’s claim is forever barred by 28 U.S.C. § 2401(b) and should be dismissed with prejudice. See e.g., Myszkowski v. United States Gov’t, 553 F. Supp. 66, 67 (N.D. Ill. Oct. 13, 1982)(claim filed six months and two weeks after mailing of notice of final action was barred under 28 U.S.C. § 2401(b)). Case: 3:16-cv-00607-wmc Document #: 6 Filed: 11/16/16 Page 4 of 5 5 Dated this 16th day of November, 2016. Respectfully submitted, JOHN W. VAUDREUIL United States Attorney By: Barbara L. Oswald BARBARA L. OSWALD Assistant United States Attorney 222 West Washington Avenue, Suite 700 Madison, Wisconsin 53703-4703 (608) 264-5158 TTY (608) 264-5006 Of Counsel: Stanford M. Bjurstrom Attorney-National Tort Center United States Postal Service 1720 Market Street, Room 2400 St. Louis, MO 63155 (314)-345-5820 stanford.m.bjurstrom@usps.gov Case: 3:16-cv-00607-wmc Document #: 6 Filed: 11/16/16 Page 5 of 5