Valiente Martinez v. United States Postal Service et al

MOTION for Summary Judgment

D.N.J.August 22, 2016

PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, 4th Floor Camden, NJ 08101 Tel. 856-757-5139 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROSALIE VALIENTE MARTINEZ, Plaintiff, v. UNITED STATES POSTAL SERVICE and PHILLIP CHEE, Defendants. HON. FREDA L. WOLFSON Civil No. 15-8545 (FLW)(DEA) Notice of Motion for Summary Judgment Return Date: September 19, 2016 To: George T. Szymczak 441 Paterson Avenue Wallington, NJ 07057 Attorney for Plaintiff COUNSEL: PLEASE TAKE NOTICE that on Monday, September 19, 2016, Federal Defendants United States Postal Service and Phillip Chee, by the undersigned attorneys, shall move before the Honorable Judge Wolfson, United States District Judge, for an Order substituting the United States as the proper party defendant, dismissing the Complaint against the United States Postal Service and Phillip Case 3:15-cv-08545-FLW-DEA Document 10 Filed 08/22/16 Page 1 of 2 PageID: 34 Chee, and granting summary judgment on Plaintiff’s Complaint for failure to file within the statute of limitations. In support of this motion, Federal Defendants will rely upon: (1) the pleadings, (2) a brief, (3) a Statement of Material Facts Not in Dispute, and (4) the Declaration of Jessica O’Neill and its attachments. A proposed form of order is also submitted with this notice. PAUL J. FISHMAN United States Attorney s/ Jessica R. O’Neill By: JESSICA R. O’NEILL Date: August 22, 2016 Assistant United States Attorney Case 3:15-cv-08545-FLW-DEA Document 10 Filed 08/22/16 Page 2 of 2 PageID: 35 PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, 4th Floor Camden, NJ 08101 Tel. 856-757-5139 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROSALIE VALIENTE MARTINEZ, Plaintiff, v. UNITED STATES POSTAL SERVICE and PHILLIP CHEE, Defendants. HON. FREDA L. WOLFSON Civil No. 15-8545 (FLW)(DEA) BRIEF IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT On the Brief: JESSICA R. O’NEILL Assistant United States Attorney MOTION RETURNABLE September 19, 2016 Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 1 of 17 PageID: 36 i TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION ..................................................................................................... 1 STATEMENT OF FACTS ........................................................................................ 2 STANDARD OF REVIEW ....................................................................................... 4 ARGUMENT ............................................................................................................. 5 A. The United States should be Substituted for the Federal Defendants, and the Federal Defendants should be Dismissed from this Action. ............................ 5 B. Summary Judgment Should Be Granted to the United States Because Plaintiff’s Claims are Untimely. .......................................................................... 7 a. The FTCA Establishes a Clear Set of Timely Filing Requirements. ............ 7 b. Plaintiff Failed to File this Complaint within Six Months of the Denial of Her Administrative Claim. ............................................................................ 9 c. Plaintiff is Not Entitled to Equitable Tolling of the Timeliness Requirements. ..............................................................................................10 CONCLUSION ........................................................................................................13 Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 2 of 17 PageID: 37 ii TABLE OF AUTHORITIES Cases Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008) ..................................................7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................5 Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006) ........................................................5 Dilg v. U.S. Postal Serv., 635 F. Supp. 406 (D.N.J. 1985) ......................................5 Dolan v. United States Postal Serv., 546 U.S. 481 (2006) ....................................... 5 Ellison v. United States, 531 F.3d 359 (6th Cir. 2008) ............................................ 8 Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001) ............................................................12 Franchise Tax Bd. v. United States Postal Serv., 467 U.S. 512 (1984) ................... 5 Gordon v. Pugh, 235 F. App’x 51 (3d Cir. 2007) ..................................................... 8 Hammond v. Kim, No. 13-435, 2013 2013 WL 4509988 (D.N.J. Aug. 26, 2013) .. 6 Hedges v. United States, 404 F.3d 744 (3d Cir. 2005) ...........................................11 Houston v. United States Postal Serv., 823 F.2d 896 (5th Cir. 1987) ......................8 Irwin v. Dept. of Veteran Affairs, 498 U.S. 89 (1990) .............................................1 J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) ........5 Kaucher v. Cnty. of Bucks, 455 F.3d 418 (3d Cir. 2006) .........................................4 Livera v. First Nat’l Bank, 879 F.2d 1186 (3d Cir. 1989) ........................................7 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ...............4 Perez-Barron v. United States, 480 F. App’x 688 (3d Cir. 2012) ............................5 Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 3 of 17 PageID: 38 iii Roma v. United States, 344 F.3d 352 (3d Cir. 2003) ...............................................7 Santos ex rel. Beato v. United States, 559 F.3d 189 (3d Cir. 2009) ........... 11, 12, 13 Schuler v. United States, 628 F.2d 199 (D.C. Cir. 1980) .................................... ....8 Seiss v. United States, 792 F. Supp. 2d 729 (D.N.J. 2011) ................................. ....8 Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236 (3d Cir. 1999) .......... 12, 13 Solomon v. U.S., 566 F. Supp. 1033 (E.D. N.Y. 1982) ....................................... ....9 United States v. Dalm, 494 U.S. 596 (1990) ....................................................... ....7 United States v. Kubrick, 444 U.S. 111 (1979) ................................................... ….7 United States v. Wong, ___ U.S. ___, 135 S. Ct. 1625 (2015) .......................... ...11 Willis v. United States, 719 F.2d 608 (2d Cir. 1983) .......................................... ….8 Statutes 28 U.S.C. § 2401 ......................................................................................... 1, 7, 8, 10 28 U.S.C. § 2679 .................................................................................................. 1, 6 39 U.S.C. § 409 ......................................................................................................... 5 Regulation 28 C.F.R. § 15.4 ......................................................................................................6 Legislative History H.R. Rep. No. 89-1532 (1966) ................................................................................8 Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 4 of 17 PageID: 39 1 INTRODUCTION Plaintiff Rosario Valiente Martinez (“Plaintiff”)1 filed the present action in this Court on December 10, 2015. In the Complaint, Plaintiff seeks damages from the United States Postal Service and its employee, Phillip Chee (“Federal Defendants”), as a result of a motor vehicle accident that occurred on December 14, 2013. Federal Defendants now move for dismissal and/or summary judgment on Plaintiff’s claims. 2 First, Federal Defendants move substitute the United States as defendant and dismiss the United States Postal Service and Phillip Chee as parties to this action. The Postal Service and Mr. Chee must be dismissed because under the Federal Tort Claims Act, the only proper party defendant is the United States of America. See 28 U.S.C. § 2679(b)(1). Second, Substituted Defendant United States moves for summary judgment under Federal Rule of Civil Procedure 56, because factual matters outside of the operative pleadings show that Plaintiff failed to meet the timeliness requirements of the FTCA because she failed to file this action within six (6) months after the denial of her administrative claim. See 28 U.S.C. § 2401(b). Finally, equitable tolling cannot save Plaintiff’s claims, because she will be unable to demonstrate 1 The caption is in the name of “Rosalie Valiente Martinez” but the Complaint and other documents refer to Plaintiff as Rosario Valiente Martinez. 2 Substituted Defendant United States has filed, contemporaneously with this motion, an Answer to Plaintiff’s Complaint. Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 5 of 17 PageID: 40 2 that inequitable circumstances prevented her from filing her Complaint in a timely manner. STATEMENT OF FACTS3 In her Complaint, Plaintiff alleges that she was driving south on Society Hill Boulevard in Franklin Township, New Jersey, on December 14, 2013, when her car was struck by a United States Postal Service truck driven by Postal Service employee Phillip Chee. See Dkt. Entry 1, ¶¶ 1-2, 4. Plaintiff alleges that as a result of the motor vehicle accident, she sustained personal injuries. Id. ¶ 6. Plaintiff, through her counsel, submitted an administrative claim form, known as Standard Form 95, under the provisions of the FTCA, to the Postal Service seeking damages for her alleged injuries. See Declaration of Jessica O’Neill (“O’Neill Decl.”), Ex. A (SF-95). The form was dated March 4, 2014, but the Postal Service received it on March 17, 2014, and considered it filed as of that date. The Postal Service began investigating the claim and requested that Plaintiff provide evidence in support of her claimed injuries. O’Neill Decl. Ex. B (March 25, 2014 Letter from Price); Ex. C (July 14, 2014 Letter from Price), Ex. D (January 28, 2015 Fax from Price). 3 Please also see the Local Civil R. 56.1 Statement of Facts Not in Dispute which accompanies this brief and is incorporated herein. Federal Defendants also rely on the accompanying Declaration of Jessica O’Neill and its attached exhibits. Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 6 of 17 PageID: 41 3 On April 2, 2015, by letter from Roberta Price, the Postal Service’s claims examiner, the Postal Service denied the claim for failure to submit evidence of personal injury. O’Neill Decl. Ex. E (April 2, 2015 Letter from Price). In the letter, the Postal Service noted that Plaintiff could, in accordance with 28 U.S.C. § 2401(b) and 39 C.F.R. § 912.9(a), “file suit in a United States District Court no later than six (6) months after the date the Postal Service mails the notice of the final action.” Id. (emphasis in original). The Postal Service further noted that Plaintiff could alternatively, in accordance with 39 C.F.R. § 912.9(b), file a written request for reconsideration with the postal official who issued the final denial of the claim. Id. Plaintiff, through counsel, sent a letter on June 8, 2015. O’Neill Decl. Ex. F (June 8, 2015 Letter from Szymczak). In this letter Plaintiff indicated that if the Postal Service was “still willing to discuss a settlement let me know,” and that [o]therwise, I’ll file suit.” Id. Plaintiff sent another letter dated October 19, 2015, which enclosed medical records and included a settlement demand. O’Neill Decl. Ex. G (October 19, 2015 Letter from Szymczak). The Postal Service responded on November 18, 2015 in a letter from Kimberly Herbst, a Postal Service claims supervisor. O’Neill Decl. Ex. H (November 18, 2015 Letter from Herbst). In this letter, the Postal Service explained that if the October 19, 2015 letter was a request for reconsideration, it Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 7 of 17 PageID: 42 4 was untimely because it was not received within the six-month time period provided by the FTCA. Id. Plaintiff responded with a letter on December 1, 2015 (O’Neill Decl. Ex. I, December 1, 2015 Letter from Szymczak), and then commenced this action on December 10, 2015. STANDARD OF REVIEW Summary judgment is appropriate whenever “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute exists “only if there is a sufficient evidentiary basis on which a reasonably jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). In opposing summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must “cit[e] to particular parts of materials in the record” to “show[] that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1)(A), (B). “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 8 of 17 PageID: 43 5 party.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining whether a genuine dispute of any material fact exists, the court must draw all facts and inferences in favor of the non-moving party. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 925 (3d Cir. 2011). ARGUMENT A. The United States should be Substituted for the Federal Defendants, and the Federal Defendants should be Dismissed from this Action. Tort actions brought against the United States Postal Service are subject to, and governed by, the FTCA. See 39 U.S.C. § 409(c); Dolan v. United States Postal Serv., 546 U.S. 481, 484 (2006); Franchise Tax Bd. v. United States Postal Serv., 467 U.S. 512, 519 n.11 (1984). Under the FTCA, an action against the United States is a plaintiff’s “exclusive remedy,” Couden v. Duffy, 446 F.3d 483, 498 n.10 (3d Cir. 2006), because the only appropriate defendant in a Federal Tort Claims Act case is the United States. See, e.g., Perez-Barron v. United States, 480 F. App’x 688, 691 (3d Cir. 2012) (“The FTCA delineates that a plaintiff may sue only the United States”). As a result, the United States should be substituted as a defendant, and named defendant the United States Postal Service should be dismissed. See Dilg v. U.S. Postal Serv., 635 F. Supp. 406, 407 (D.N.J. 1985) (dismissing the complaint against the Postal Service because “the United States is the only proper defendant in a suit for personal injuries arising out of the negligence of federal employees”). Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 9 of 17 PageID: 44 6 With regard to named defendant Phillip Chee, 28 U.S.C. § 2679(d)(1) provides that upon the certification of the Attorney General that a defendant was acting within the scope of employment at the time of the conduct for which the tort claim arises, the claim shall be “deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(1). The Attorney General has delegated certification authority to the individual United States Attorneys. See 28 C.F.R. § 15.4. Pursuant to this authority, on August 19, 2016, the Chief of the Civil Division of the United States Attorney’s Office for the District of New Jersey certified that named Defendant Phillip Chee was acting within the scope of his employment as an employee of the United States at the time of the conduct alleged in the Complaint. See O’Neill Decl., Ex. J (Cert. of Scope of Employment). Because the certification establishes that named defendant Phillip Chee was acting within the scope of his employment, this action must be dismissed against named defendant Phillip Chee and the United States substituted as the party defendant. 28 U.S.C. § 2679(d). See, e.g., Hammond v. Kim, No. 13-435, 2013 2013 WL 4509988, at *1, n.1 (D.N.J. Aug. 26, 2013) (noting that the United States “was substituted in the place of [a deputy U.S. Marshal]” after the U.S. Attorney’s Office had certified that he had been acting within the scope of his employment). Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 10 of 17 PageID: 45 7 Consistent with the above authority, Federal Defendants the United States Postal Service and Phillip Chee should be dismissed from this action and the United States should be substituted as the proper party defendant. B. Summary Judgment Should Be Granted to the United States Because Plaintiff’s Claims are Untimely. a. The FTCA Establishes a Clear Set of Timely Filing Requirements. Under established principles of sovereign immunity, federal courts generally lack jurisdiction to hear claims against the United States. See United States v. Dalm, 494 U.S. 596, 608 (1990). Congress enacted the FTCA to “waive[] the United States’ sovereign immunity for claims” for money damages “arising out of torts committed by federal employees.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008). As a “condition” of that waiver, Congress required plaintiffs to sue on such claims within specified periods of time. United States v. Kubrick, 444 U.S. 111, 117 (1979). It further specified that any claims not satisfying the timeliness requirements “shall be forever barred.” 28 U.S.C. § 2401(b). As a waiver of sovereign immunity, “the Act’s established procedures have been strictly construed.” Livera v. First Nat’l Bank, 879 F.2d 1186, 1194 (3d Cir. 1989); see also Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003) (noting that “mandatory language” of the FTCA has been given “strict construction”). As amended, the FTCA time-limit provision now provides that a tort claimant must (1) present an administrative claim to the appropriate federal agency Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 11 of 17 PageID: 46 8 within two years of accrual of the claim, and (2) file a lawsuit in the appropriate federal district court within six months of the final denial of the claim. See 28 U.S.C. § 2401(b). Both prongs of § 2401(b) must be satisfied; that is, a claimant must both present an administrative claim to the agency within two years of the time the cause of action accrues, and also commence suit within six months of the final denial of the claim. See, e.g., Willis v. United States, 719 F.2d 608, 612-13 (2d Cir. 1983); Houston v. United States Postal Serv., 823 F.2d 896, 902 (5th Cir. 1987); Ellison v. United States, 531 F.3d 359, 362-63 (6th Cir. 2008); Schuler v. United States, 628 F.2d 199, 201-02 (D.C. Cir. 1980) (en banc) (per curiam); Seiss v. United States, 792 F. Supp. 2d 729, 731-32 (D.N.J. 2011). In Seiss, the district court noted that the Third Circuit has not explicitly addressed whether both the two-year and six-month limitations periods must be met. 792 F. Supp. 2d at 732. In an unpublished decision, however, the Third Circuit assumed without discussion that both deadlines must be met. See Gordon v. Pugh, 235 F. App’x 51, 53 (3d Cir. 2007). Furthermore, several other Circuits have held that both requirements must be met. See Seiss, 792 F. Supp. 2d at 732 (collecting cases). The legislative history also demonstrates Congress’s intent that both deadlines must be met. See H.R. Rep. No. 89-1532, at 5 (1966) (“The amendments have the effect of simplifying the language of section 2401 to require that a claimant must file a claim in writing Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 12 of 17 PageID: 47 9 to the appropriate Federal agency within 2 years after the claim accrues, and to further require the filing of a court action within 6 months of notice . . . of a final decision of the claim by the agency to which it was presented.”) (emphasis added). b. Plaintiff Failed to File this Complaint within Six Months of the Denial of Her Administrative Claim. In this case, Plaintiff timely filed her claim within 2 years after it accrued. That claim was then denied on April 2, 2015. See O’Neill Decl. Ex. E. The Postal Service specifically noted in its denial letter that if Plaintiff was dissatisfied with its final denial of her claim, she could “file suit in a United States District Court no later than six (6) months after the date the Postal Service mails the notice of the final action.” Id. (emphasis in original). Plaintiff failed to do so, and did not file her complaint in this Count until December 10, 2015, over two months after the six month deadline had expired. The Postal Service also noted that Plaintiff would file a written request for reconsideration within six months. Id. Plaintiff did not do so. Plaintiff did submit letters to the Postal Service on June 8, 2015 and October 19, 2015. See O’Neill Decl. Exs. F and G. However, these letters cannot reasonably be construed to constitute written requests for reconsideration. See, e.g., Solomon v. U.S., 566 F. Supp. 1033, 1035 (E.D. N.Y. 1982) (finding that post-denial letters requesting further explanation of the denial did not constitute requests for reconsideration and did not have the effect of tolling the limitations period). The June 8 letter asks Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 13 of 17 PageID: 48 10 whether the Postal Service is still willing to discuss settlement and anticipates that the Plaintiff will file suit. O’Neill Decl. Ex. F. Nowhere in the June 8 letter does Plaintiff acknowledge that the claim has been denied or ask for a reconsideration of that denial. Similarly, the October 19 letter cannot save Plaintiff’s claims. O’Neill Decl. Ex. G. First, this letter also does not reasonably constitute a request for reconsideration, because it is merely a cover letter accompanying the belated transmission of Plaintiff’s medical records. It also does not acknowledge that the claim has been denied; nor does it ask for a reconsideration of that denial. Second, to the extent the October 19, 2015 letter could possibly be construed as a request for reconsideration, that request was itself untimely, as the six month period for requesting reconsideration had run on October 2, 2015. As a result, under a straightforward application of the filing deadlines contained in 28 U.S.C. § 2401(b), Plaintiff’s claims against the Federal Defendants are untimely. c. Plaintiff is Not Entitled to Equitable Tolling of the Timeliness Requirements. Plaintiff’s claims are, as explained above, time-barred, unless she can demonstrate that the filing deadlines of 28 U.S.C. § 2401(b) should be equitably tolled. She will not be able to do so here. Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 14 of 17 PageID: 49 11 Equitable tolling can apply to save a claim filed outside the FTCA’s timing requirements. United States v. Wong, ___ U.S. ___, 135 S. Ct. 1625, 1630 (2015); Santos ex rel. Beato v. United States, 559 F.3d 189, 203 (3d Cir. 2009) (explaining equitable tolling in FTCA context). However, a plaintiff who files late will not receive the benefit of equitable tolling unless she exercises due diligence in pursuing and preserving her claim, and “garden-variety claims of excusable neglect” are insufficient to establish an entitlement to equitable tolling. Santos, 559 F.3d at 197 (quoting Irwin v. Dept. of Veteran Affairs, 498 U.S. 89, 96 (1990)). Specifically, equitable tolling is an “extraordinary remedy” and should be used “only sparingly” in one of three circumstances: “‘(1) where the defendant has actively misled the plaintiff respecting the plaintiff’s 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.” Santos, 559 F.3d at 197 (quoting Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005).4 None of those extraordinary circumstances is present here. The first and third circumstances are easily distinguishable. First, the Postal Service did not mislead Plaintiff as to the FTCA six month limitations period applicable to her claims. The very opposite is true: the Postal Service specifically cited the 4 The Supreme Court’s Wong decision did not disturb the existing Third Circuit guidance on when equitable tolling may apply. Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 15 of 17 PageID: 50 12 limitations period in its denial letter and even provided citations to the relevant legal authorities. See O’Neill Decl. Ex. E. As to the third circumstance, Plaintiff’s selection of the forum is not at issue. She filed this action in the United States District Court, as noted in the Postal Service’s denial letter, making this circumstance equally inapplicable. See id. With respect to the second circumstance, Plaintiff cannot show that she was “prevented” from exercising her rights “in some extraordinary way.” See Santos, 559 F.3d at 197. The Complaint was simply filed too late, and “the mere fact that counsel failed to file the complaint in a timely manner probably constitutes garden variety neglect,” which does not fit the category of extraordinary circumstances. See Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 241 (3d Cir. 1999)). Attorney error is not an extraordinary circumstance that justifies equitable tolling. The Third Circuit’s precedents amply support that notion, as the court has explained that “in non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the ‘extraordinary’ circumstances required for equitable tolling.” Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). Put another way, it is “generally true” that “an attorney’s delinquency is chargeable to the client,” which is “consistent with the rule that equitable tolling is to be used sparingly, particularly in the context of attorney default.” Seitzinger, 165 F.3d at 237. Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 16 of 17 PageID: 51 13 Similarly, the June 8 or October 19 letters do not demonstrate that Plaintiff was in any way prevented from exercising her rights. O’Neill Decl. Exs. F, G. As discussed above, these letters do not reasonably constitute requests for reconsideration because, on their face, they do not ask for reconsideration. The letters simply assert that Plaintiff was still receiving medical treatment and request a settlement. These letters only provide evidence of attorney delinquency and do not demonstrate the type of “extraordinary” factors that would weigh in favor of equitable tolling. See Seitzinger, 165 F.3d at 237 In sum, none of the extraordinary circumstances identified in Santos are present here, and so equitable tolling cannot save Plaintiff’s Complaint. CONCLUSION For the foregoing reasons, the Federal Defendants respectfully urge this Court to substitute the United States for the named Federal Defendants, grant the motion for motion summary judgment, and enter judgment for the United States. PAUL. J. FISHMAN United States Attorney By: /s/ Jessica O’Neill JESSICA R. O’NEILL Assistant U.S. Attorney Dated: August 22, 2016 Case 3:15-cv-08545-FLW-DEA Document 10-1 Filed 08/22/16 Page 17 of 17 PageID: 52 PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, 4th Floor Camden, NJ 08101 Tel. 856-757-5139 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROSALIE VALIENTE MARTINEZ, Plaintiff, v. UNITED STATES POSTAL SERVICE and PHILLIP CHEE, Defendants. HON. FREDA L. WOLFSON Civil No. 15-8545 (FLW)(DEA) FEDERAL DEFENDANTS’ STATEMENT OF MATERIAL FACTS NOT IN DISPUTE Pursuant to Federal Rule of Civil Procedure 56(c) and Local Civil Rule 56.1, Defendant United States respectfully submits this Statement of Material Facts Not in Dispute in support of Defendant’s Motion for Summary Judgment. 1. Plaintiff Rosario Valiente Martinez was involved in a motor vehicle accident with a United States Postal Service truck driven by Postal Service employee Phillip Chee. See Dkt. Entry 1, ¶¶ 1-2, 4. Case 3:15-cv-08545-FLW-DEA Document 10-2 Filed 08/22/16 Page 1 of 4 PageID: 53 2. The accident occurred on Society Hill Boulevard in Franklin Township, New Jersey, on December 14, 201. Id. 3. Plaintiff alleges that as a result of the motor vehicle accident, she sustained personal injuries. Id. ¶ 6. 4. Plaintiff filed an administrative tort claim with the United States Postal Service on March 17, 2014. See Declaration of Jessica O’Neill (“O’Neill Decl.”) Ex. A. 5. The claim sought damages for Plaintiff’s alleged personal injuries and property damage. See Declaration of Jessica O’Neill (“O’Neill Decl.”), Ex. A (SF-95). 6. The form was dated March 4, 2014, but the Postal Service received it on March 17, 2014, and considered it filed as of that date. Id. 7. The Postal Service began investigating the claim and requested that Plaintiff provide evidence in support of her claimed injuries. O’Neill Decl. Ex. B (March 25, 2014 Letter from Price); Ex. C (July 14, 2014 Letter from Price), Ex. D (January 28, 2015 Fax from Price). 8. On April 2, 2015, by letter from Roberta Price, the Postal Service’s claims examiner, the Postal Service denied the claim for failure to submit evidence of personal injury. O’Neill Decl. Ex. E (April 2, 2015 Letter from Price). Case 3:15-cv-08545-FLW-DEA Document 10-2 Filed 08/22/16 Page 2 of 4 PageID: 54 9. In the denial letter, the Postal Service noted that Plaintiff could, in accordance with 28 U.S.C. § 2401(b) and 39 C.F.R. § 912.9(a), “file suit in a United States District Court no later than six (6) months after the date the Postal Service mails the notice of the final action.” Id. (emphasis in original). 10. The Postal Service further noted that Plaintiff could alternatively, in accordance with 39 C.F.R. § 912.9(b), file a written request for reconsideration with the postal official who issued the final denial of the claim. Id. 11. Plaintiff, through counsel, sent a letter back to the Postal Service on June 8, 2015. O’Neill Decl. Ex. F (June 8, 2015 Letter from Szymczak). 12. In this letter Plaintiff indicated that if the Postal Service was “still willing to discuss a settlement let me know,” and that [o]therwise, I’ll file suit.” Id. 13. Plaintiff sent another letter dated October 19, 2015, which enclosed Plaintiff’s medical records and included a settlement demand. O’Neill Decl. Ex. G (October 19, 2015 Letter from Szymczak). 14. The Postal Service responded on November 18, 2015 in a letter from Kimberly Herbst, a Postal Service claims supervisor. O’Neill Decl. Ex. H (November 18, 2015 Letter from Herbst). Case 3:15-cv-08545-FLW-DEA Document 10-2 Filed 08/22/16 Page 3 of 4 PageID: 55 15. In the November 19, 2015 letter, the Postal Service explained, among other things, that if the October 19, 2015 letter was a request for reconsideration, it was untimely because it was not received within the six-month time period provided by the FTCA. Id. 16. Plaintiff responded with a letter to the Postal Service on December 1, 2015, enclosing medical records and indicating that she would be filing suit (O’Neill Decl. Ex. I, December 1, 2015 Letter from Szymczak). 17. Plaintiff filed the instant matter in this Court on December 10, 2015. Respectfully submitted, PAUL J. FISHMAN United States Attorney /s/ Jessica R. O’Neill By: JESSICA R. O’NEILL Assistant U.S. Attorney Date: August 22, 2016 Case 3:15-cv-08545-FLW-DEA Document 10-2 Filed 08/22/16 Page 4 of 4 PageID: 56 PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, 4th Floor Camden, NJ 08101 Tel. 856-757-5139 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROSALIE VALIENTE MARTINEZ, Plaintiff, v. UNITED STATES POSTAL SERVICE and PHILLIP CHEE, Defendants. HON. FREDA L. WOLFSON Civil No. 15-8545 (FLW)(DEA) DECLARATION OF JESSICA O’NEILL I, Jessica O’Neill, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am an Assistant United States Attorney for the District of New Jersey, assigned to represent Federal Defendants the United States Postal Service and Phillip Chee in this matter. I make this Declaration in support of Federal Defendants’ Motion for Summary Judgment, pursuant to Fed. R. Civ. P. 56. Case 3:15-cv-08545-FLW-DEA Document 10-3 Filed 08/22/16 Page 1 of 2 PageID: 57 2. As counsel for Defendant, I have access to the United States Postal Service’s documents, the administrative claim file, and the pleadings filed with the District Court. 3. Attached to this Declaration are true and correct copies of the following documents: • Exhibit A – SF-95 Filed by Plaintiff • Exhibit B – March 25, 2014 Letter from Roberta Price • Exhibit C – July 14, 2014 Letter from Roberta Price • Exhibit D – January 28, 2015 Fax from Roberta Price • Exhibit E – April 2, 2015 Letter from Roberta Price • Exhibit F – June 8, 2015 Letter from George Szymczak • Exhibit G – October 19, 2015 Letter from George Szymczak • Exhibit H – November 18, 2015 Letter from Kimberly Herbst • Exhibit I – December 1, 2015 Letter from George Szymczak • Exhibit J – Certification of Scope of Employment I declare under penalty of perjury that the foregoing is true and correct. /s/ Jessica R. O’Neill By: JESSICA R. O’NEILL Assistant U.S. Attorney Date: August 22, 2016 Case 3:15-cv-08545-FLW-DEA Document 10-3 Filed 08/22/16 Page 2 of 2 PageID: 58 Exhibit A Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 1 of 24 PageID: 59 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 2 of 24 PageID: 60 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 3 of 24 PageID: 61 Exhibit B Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 4 of 24 PageID: 62 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 5 of 24 PageID: 63 Exhibit C Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 6 of 24 PageID: 64 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 7 of 24 PageID: 65 Exhibit D Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 8 of 24 PageID: 66 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 9 of 24 PageID: 67 Exhibit E Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 10 of 24 PageID: 68 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 11 of 24 PageID: 69 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 12 of 24 PageID: 70 Exhibit F Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 13 of 24 PageID: 71 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 14 of 24 PageID: 72 Exhibit G Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 15 of 24 PageID: 73 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 16 of 24 PageID: 74 Exhibit H Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 17 of 24 PageID: 75 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 18 of 24 PageID: 76 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 19 of 24 PageID: 77 Exhibit I Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 20 of 24 PageID: 78 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 21 of 24 PageID: 79 Exhibit J Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 22 of 24 PageID: 80 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 23 of 24 PageID: 81 Case 3:15-cv-08545-FLW-DEA Document 10-4 Filed 08/22/16 Page 24 of 24 PageID: 82 PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, 4th Floor Camden, NJ 08101 Tel. 856-757-5139 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROSALIE VALIENTE MARTINEZ, Plaintiff, v. UNITED STATES POSTAL SERVICE and PHILLIP CHEE, Defendants. HON. FREDA L. WOLFSON Civil No. 15-8545 (FLW)(DEA) ORDER This matter having come before the Court on motion by Federal Defendants United States Postal Service and Phillip Chee to substitute the United States as defendant, dismiss the complaint as against the United States Postal Service and Phillip Chee, and to grant summary judgment on Plaintiff’s complaint for failure to file within the statute of limitations; and the Court having considered the moving papers and any opposition thereto; and for good cause shown; Case 3:15-cv-08545-FLW-DEA Document 10-5 Filed 08/22/16 Page 1 of 2 PageID: 83 IT IS this ____________ day of ________________, 2016, hereby ORDERED that the motion to substitute the United States as defendant is GRANTED; summary judgment is GRANTED to the United States, and Plaintiff’s Complaint is hereby DISMISSED. ______________________________ FREDA L. WOLFSON, U.S.D.J. Case 3:15-cv-08545-FLW-DEA Document 10-5 Filed 08/22/16 Page 2 of 2 PageID: 84 PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, 4th Floor Camden, NJ 08101 Tel. 856-757-5139 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROSALIE VALIENTE MARTINEZ, Plaintiff, v. UNITED STATES POSTAL SERVICE and PHILLIP CHEE, Defendants. HON. FREDA L. WOLFSON Civil No. 15-8545 (FLW)(DEA) CERTIFICATE OF SERVICE I hereby certify that on August 22, 2016, a copy of the Notice of Federal Defendants’ Motion for Summary Judgment, Brief in Support thereof, Declaration of Jessica O’Neill and attached exhibits, Proposed Order, and this Certificate of Service were served by electronic filing on the Court’s ECF system as well as by first class mail to: George T. Szymczak 441 Paterson Avenue Wallington, NJ 07057 Attorney for Plaintiff Case 3:15-cv-08545-FLW-DEA Document 10-6 Filed 08/22/16 Page 1 of 2 PageID: 85 2 PAUL. J. FISHMAN United States Attorney By: /s/ Jessica O’Neill_________ JESSICA R. O’NEILL Assistant U.S. Attorney Case 3:15-cv-08545-FLW-DEA Document 10-6 Filed 08/22/16 Page 2 of 2 PageID: 86