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LE GRAND v. LINCOLN

April 12, 1993

DIANE LE GRAND, Plaintiff
v.
JOHN LINCOLN, UNITED STATES NAVY AND UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 J. JOYNER

 Plaintiff, Diane Le Grand, commenced this action under the Federal Torts Claim Act ("FTCA" or the "Act"), 28 U.S.C. § 2671 et seq., against John Lincoln, the United States Navy and the United States of America. *fn1" Presently before the Court is the defendants' Motion to Dismiss Plaintiff's Claims. For the following reasons the motion is granted.

 On February 18, 1992, the plaintiff commenced an action under the FTCA against the above named defendants and Walter McCrea for injuries she allegedly sustained as the result of an automobile accident at the United States Naval Base in Philadelphia, Pennsylvania on May 16, 1990. On March 2, 1992, plaintiff filed an administrative claim form with the Department of the Navy. Plaintiff's original court action was dismissed on October 22, 1992 against all defendants due to a defect in the service of process. Plaintiff filed the present action on September 4, 1992.

 DISCUSSION

 The defendants propound three arguments in support of their motion to dismiss. First, they submit that they are not proper parties under the Federal Torts Claim Act. Second, they argue that the plaintiff did not file a valid administrative claim form with the proper agency as is required by the Federal Torts Claims Act. Finally, the defendants contend that the applicable statute of limitations has expired. The Court agrees with the defendants' latter two arguments, and dismisses the plaintiff's claim based on these grounds. Consequently, we need not address the issue of who is a proper party under the Federal Torts Claims Act.

 A court may grant a motion to dismiss in accordance with Fed.R.Civ.P. 12(b)(6) if it appears beyond a doubt that the plaintiff can prove no facts to support the relief requested. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988). In deciding a motion to dismiss, the court must accept as true all well plead factual allegations of the non-moving party, and must view all inferences in the light most favorable to that party. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989); Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).

 A. Validity of Administrative Claim Form

 "As a sovereign, the United States is immune from suit save as it consents to be sued. The terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Jordan v. United States of America, 333 F. Supp. 987, 988 n.1 (E.D. Pa. 1971) aff'd 474 F.2d 1340 (3d Cir. 1973) quoting United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941). The United States, through Congress, has consented to waive this right of sovereign immunity via its enactment of 28 U.S.C. § 2671 et seq., the Federal Torts Claims Act. Thus, in this case, our jurisdiction is restricted to the terms enunciated by Congress in the FTCA. See Sherwood, 312 U.S. at 586 (jurisdiction limited to terms of Age Discrimination in Employment Act); Lehman v. Nakshian, 453 U.S. 156, 160, 69 L. Ed. 2d 548, 101 S. Ct. 2698, (1981)(jurisdiction limited to terms of Tucker Act).

 Section 2675(a) requires that prior to filing a claim against the United States, the claimant must have "first presented the claim to the appropriate Federal agency." *fn2" The Third Circuit has consistently held this requirement to be jurisdictional and therefore, cannot be waived. As the Federal Torts Claims Act is an express waiver of sovereign immunity, strict compliance with its provisions is required. Livera v. First National Bank, 879 F.2d 1186, 1194 (3d Cir.) cert. denied 493 U.S. 937, 107 L. Ed. 2d 322, 110 S. Ct. 332 (1989); see also Lehman, 453 U.S. at 161 (limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied). Consequently, the plaintiff must have presented a valid administrative claim form in order to maintain an action under the Act. The question presented before the Court is whether the plaintiff's claim form, which was submitted to the appropriate agency but failed to request any specific monetary amount for her injuries, was sufficient to satisfy the requirement of § 2675(a).

 Congress delineated the requirements of the presentation of a valid administrative claim form in the Code of Federal Regulations § 14.2 which provides:

 
... a claim form shall be deemed to have been presented when a federal agency receives from a claimant, his duly authorized agent or representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of ...

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