Tucker v. United States of America

REPLY BRIEF re MOTION to Dismiss REPLY IN SUPPORT OF MOTION TO DISMISS AMENDED FEDERAL TORT CLAIMS ACT COMPLAINT

N.D. Ga.November 7, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION EDWINA ROSE TUCKER PLAINTIFF, v. UNITED STATES OF AMERICA DEFENDANT. Civil Action No. 1:16-cv-02791-MHC THE UNITED STATES OF AMERICA’S REPLY IN SUPPORT OF MOTION TO DISMISS AMENDED FEDERAL TORT CLAIMS ACT COMPLAINT The United States of America moved to dismiss Plaintiff’s Complaint in accordance with Federal Rules of Civil Procedure 12(b)(6). In further support of its Motion, the United States shows the Court as follows: Argument and Citation to Authority In her response, Plaintiff claims that she properly exhausted her administrative remedies and that the instant action is timely pursuant to the Federal Tort Claims Act (“FTCA”). More specifically, Plaintiff claims that her Complaint was filed by the March 15, 2016 expiration of the statute of limitation because March 15, 2016 is the date listed at the end of her previously-filed FTCA Complaint and because March 15, Case 1:16-cv-02791-MHC Document 8 Filed 11/07/16 Page 1 of 8 2 2016 is the date Plaintiff purportedly deposited her previously-filed Complaint in the U.S. Mail addressed to the clerk of the district court. See Document 7 at 2-3. Notably, while Plaintiff purports to have deposited her Complaint in the mail on March 15, 2016, her previously-filed Complaint was not received by the clerk’s office until April 4, 2016 - almost three weeks after Plaintiff claims she deposited it in the U.S. Mail. See Tucker v. Mcdonald, Civil Action No. 1:16-cv-1239-MHC, Docket No. 3 (N.D.Ga.).1 Pursuant to Federal Rule of Civil Procedure 3, “A civil action is commended by filing a complaint with the court.” Fed. R. Civ. P. 3; see also O.C.G.A. § 9-11-3 (“A civil action is commenced by filing a complaint with the court.”). A paper, including a complaint, is filed by delivering it to the clerk. Fed. R. Civ. P. 5(d)(2). The general rule is that receipt by the clerk of the court constitutes filing. Houston v. Lack, 487 U.S. 266, 274-75 (1988) (discussing unique challenges of pro se prisoner appeals and establishing exception to general rule that receipt by the court clerk constitutes 1 Plaintiff’s initially filed action was dismissed without prejudice because Plaintiff named the wrong defendant, such that the Court lacked jurisdiction. See Tucker v. Mcdonald, Civil Action No. 1:16-cv-1239-MHC, Docket No. 4 (N.D.Ga.). On August 1, 2016, Plaintiff refiled her Complaint, thereby commencing the instant civil action. Case 1:16-cv-02791-MHC Document 8 Filed 11/07/16 Page 2 of 8 3 filing);2 Leggett v. Strickland, 640 F.2d 774, 776 (5th Cir. 1981) (“the complaint was not in the actual or constructive possession of the clerk until after March 29, 1980, the district court correctly held that plaintiffs did not comply with the requirements of the Statute”). Where a non-prisoner, civil litigant chooses to mail a complaint or other pleading to the clerk, that litigant assumes the risk of untimely delivery. Lack, 487 U.S. at 275 (discussing filing of notice of appeal); Reese v. City of Atlanta, 247 Ga. App. 701, 701, 545 S.E.2d 96, 97 (2001) (“Also, as a general rule, one who selects the United States Postal Service or another agency to transmit a complaint to the clerk assumes all the risks usually incident to the business of mail delivery, if the material is not timely received.”). Accordingly, the controlling date when filing a complaint is the date that the complaint is received by the clerk’s office, not the date that the complaint was put in the mail. Rodgers ex rel. Jones v. Bowen, 790 F.2d 1550, 1551-52 (11th Cir. 2 The Eleventh Circuit has extended the prisoner mailbox rule set forth in Lack to pro se prisoner cases filed under the Federal Torts Claim Act, 42 U.S.C. § 1983, and motions to vacate. Edwards v. Apple Computer, Inc., 645 F. App'x 849, 851 (11th Cir. 2016) (citing cases extending rule set forth in Lack). While exceptions have been carved out in the context of filings by pro se inmates, extension of the mailbox rule has been rejected in other contexts based, in part, on concerns that application in other contexts would increase disputes and uncertainty over when a filing occurred and would put all evidence about the date of filing in the hands of one party. See Lack, 487 U.S. at 275. Case 1:16-cv-02791-MHC Document 8 Filed 11/07/16 Page 3 of 8 4 1986) (holding complaint is deemed filed for statute of limitations purposes when it is actually or constructively received by the clerk notwithstanding untimely payment of filing fee); Leggett v. Strickland, 640 F.2d 774, 776 (5th Cir. 1981) (“the complaint was not in the actual or constructive possession of the clerk until after March 29, 1980, the district court correctly held that plaintiffs did not comply with the requirements of the Statute”); Bodiford v. Astrue, 2012 WL 6953361, at *1 (M.D. Ga. Dec. 20, 2012) (“The Complaint was filed on July 25, 2012, the date it was received by the clerk of court, not June 12, 2012, the date it may have been signed. As Plaintiff did not file his Complaint until July 25, 2012, over a month after the time to file had expired, his Complaint was not timely filed.”); Kersey v. Astrue, No. 3:06CV840-J-16TEM, 2007 WL 6600736, at *3 (M.D. Fla. Sept. 14, 2007) (“Even if the complaint was mailed on September 18, 2006, the controlling date in determining whether Plaintiff has met the statute of limitations is the date her complaint was filed by the clerk of court.”); In re Stewart-Brown, 8 B.R. 593, 595 (Bankr. N.D. Ga. 1981) (“the filing date is the controlling factor in determining the timeliness of a complaint”); 4 C. Wright and A. Miller, Federal Practice and Procedure § 1052, p. 165 (“The first step in a civil action in a United States district court is the filing of the complaint with the clerk or the Case 1:16-cv-02791-MHC Document 8 Filed 11/07/16 Page 4 of 8 5 judge. Filing a complaint requires nothing more than delivery of the document to a court officer authorized to receive it”).3 In the instant case, Plaintiff was required to file her district court Complaint within six months of the date of the final agency decision. See Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir. 2001); see also 28 U.S.C. § 2401(b). The Veterans Administration (the “VA”) wrote to Plaintiff on September 15, 2015, informing her that it had completed its reconsideration and was denying her administrative tort claim. The VA’s letter specifically notified Plaintiff of her right to file an action in district court “within 6 months from the date at the top of this letter.” Plaintiff therefore had until March 15, 2016 - six months from the date of the VA’s September 15, 2015 denial letter - to file a civil action in district court. Plaintiff’s previously-filed civil action was not filed by March 15, 2016. See Tucker v. Mcdonald, Civil Action No. 1:16-cv-1239-MHC, Docket No. 3 (N.D.Ga.). 3 Like federal district courts, Georgia courts have held that for the purpose of commencing a civil action, filing a complaint with the court does not mean depositing a complaint in the mail - instead, it means delivering a complaint to the clerk of the court in time for it to be stamped as filed before the limitation period runs. Mingledorff v. Stokely, 1996, 223 Ga.App. 183, 477 S.E.2d 374 (1996) (citing O.C.G.A. §§ 9-11-3, 9-11-5(e)); see Reese v. City of Atlanta, 247 Ga. App. 701, 701, 545 S.E.2d 96, 97 (2001) (“Generally, the date stamped on a filing by the clerk is deemed the date of filing.”). Case 1:16-cv-02791-MHC Document 8 Filed 11/07/16 Page 5 of 8 6 Instead, it was filed on the date it was received by the clerk’s office, April 4, 2016. Because Plaintiff did not file her FTCA Complaint in district court within six months after the date of mailing “of final denial of the claim by the agency to which it was presented,” her claim against the United States is untimely and is “forever barred.” 28 U.S.C. § 2401(b). Conclusion Plaintiff's Complaint should be dismissed as untimely because she did not file the instant Complaint in district court within six months of the VA’s final denial of her administrative tort claim in accordance with 28 U.S.C. § 2401(b). This 7th day of November, 2016. Respectfully submitted, JOHN A. HORN United States Attorney 600 U.S. Courthouse 75 Ted Turner Drive SW Atlanta, GA 30303 (404) 581-6000 fax (404) 581-6181 /s/ DARCY F. COTY Assistant United States Attorney Georgia Bar No. 259280 darcy.coty@usdoj.gov Case 1:16-cv-02791-MHC Document 8 Filed 11/07/16 Page 6 of 8 Certificate of Compliance I hereby certify, pursuant to Local Rules 5.1 and 7.1D, that the foregoing brief has been prepared using Book Antiqua, 13 point font. /s/ DARCY F. COTY Assistant United States Attorney Case 1:16-cv-02791-MHC Document 8 Filed 11/07/16 Page 7 of 8 Certificate of Service The United States Attorney’s Office served this document today by filing it using the Court’s CM/ECF system and by mailing a copy with sufficient postage to: Edwina Rose Tucker 1909 Amesbury Drive Decatur, GA 30032 November 7, 2016 /s/ DARCY F. COTY DARCY F. COTY Assistant United States Attorney Case 1:16-cv-02791-MHC Document 8 Filed 11/07/16 Page 8 of 8