The opinion of the court was delivered by: Conti, District Judge.
Pending before this court is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b)(1), or in the alternative, a motion for summary judgment under Federal Rule of Civil Procedure 56 (Doc. No. 9) filed by the defendant, the United States of America ("defendant"). In the motion, defendant argues that plaintiff's amended complaint should be dismissed because this court lacks subject-matter jurisdiction over the negligence claim set forth in the amended complaint. Specifically, defendant argues that the negligence claim, filed pursuant to the Federal Torts Claim Act, 28 U.S.C.A. §§ 1346(b), 2671 et. seq., ("FTCA"), is barred by the applicable statute of limitations because it was not filed within six months of final denial of the claim by the United States Postal Service ("USPS"). See 28 U.S.C. § 2401 (b).
Plaintiff argues that this suit was timely filed because the initial written claim he submitted to the USPS dated July 25, 2003, by plaintiff and marked received by the USPS on July 28, 2003, using the Standard Form 95 ("Claim for Damage, Injury, or Death")(hereinafter, plaintiff's "July 2003 SF-95") was not a valid or fully executed claim. Plaintiff argues that his July 2003 SF-95 claim does not constitute a valid claim because the tort claims analyst for the Postal Service misrepresented to him that his July 2003 SF-95 was merely a car estimate necessary to get his car repaired and not a claim for all damages arising from the incident. In essence, plaintiff would estop defendant from asserting the statute of limitations argument set forth in the motion to dismiss because he alleges that he was fraudulently induced to submit his July 2003 SF-95 claim.
The court finds defendant's jurisdictional challenge to be meritorious and therefore dismisses the complaint with prejudice. Because the court lacks subject-matter jurisdiction over plaintiff's claim, the court does not reach defendant's alternative motion for summary judgment.
A. Factual Allegations in the Complaint
Plaintiff's complaint alleges the following facts. On June 17, 2003, at approximately 6:00 a.m., plaintiff was driving to work in his 1994 Ford Taurus. Amended Complaint ("Comp.") ¶13. While stopped at a traffic signal, plaintiff's vehicle was struck from behind by a USPS tractor-trailer driven by Walter Evans, a USPS employee ("Evans"). Id. ¶¶ 4-5, 14-16. As a result of the collision, plaintiff alleges both property damage and personal injuries which he claims were caused by the negligence of Evans. Id. ¶¶ 17-21.
B. Facts Relating to the Filing of Plaintiff's Claim with the USPS
Defendant submits a declaration from an attorney at USPS and supporting exhibits in support of its factual contentions relating to events that occurred after the accident in relation to the filing of plaintiff's claim. See Defendant's Memorandum of Law in Support of Motion to Dismiss or, in the alternative, Motion for Summary Judgment ("Def.'s Mem."), Ex. 1 (Declaration of Stanford M. Bjurstrom)("Bjurstrom Decl.")(with supporting exhibits A-E ("Def.'s Ex. ___")). In submissions in response to the pending motion to dismiss, plaintiff avers additional facts and submits an affidavit and exhibits in support of his factual contentions relating to events that occurred after the accident in relation to the filing of his claim. See Answer to Motion to Dismiss or, in the alternative, for Summary Judgment (Doc. No. 13); Memorandum of Law in Support of Plaintiff's Answer (Doc. No. 15); and plaintiff's Affidavit (Doc. No. 16)(with supporting exhibits A-G ("Pl.'s Ex. ___")).
The court will review the factual record submitted by the parties to determine the factual circumstances relating to the issue of subject-matter jurisdiction over plaintiff's negligence claim.*fn1 There is no dispute that on July 28, 2003, USPS received from plaintiff the July 2003 SF-95 claim. Def.'s Ex. A; Pl.'s Ex. D. Plaintiff alleged on the July 2003 SF-95 property damage in the amount of $698.79 for repairs to his vehicle and no personal injury damage. Id. There is no dispute that plaintiff's counsel in a letter dated July 25, 2003, notified Patricia A. Sullivan ("Sullivan") at the USPS Tort Claims Office that plaintiff was represented by counsel and requested that all correspondence relating to the claim be sent to that counsel. Def.'s Ex. B; Pl.'s Ex. E. In addition, there is no dispute that the USPS denied plaintiff's July 2003 SF-95 claim approximately eight and one-half months later in a letter dated April 14, 2004, addressed to plaintiff's counsel. Def.'s Ex. C.
No reason for the denial was stated in the letter. The letter, however, informed plaintiff and his counsel that he had six months to file suit in federal district court or to file a written request for consideration with the USPS:
In accordance with 28 U.S.C. § 2401(b) and 39 C.F.R. § 912.9(a), if dissatisfied with the Postal Service's final denial of an administrative claim, a claimant may file suit in a United States District Court no later than six (6) months after the date the Postal Service mails the notice of that final action. Accordingly, any suit filed in regards to this denial must be filed no later than six (6) months from the date of the mailing of this letter, which is the date shown above. . . . Alternatively, and in accordance with the regulations set out at 39 C.F.R. 912.9(b), prior to the commencement of suit and prior to the expiration of the six (6) month period provided in 28 U.S.C. § 2401 (b), a claimant, his duly authorized agent, or legal representative, may file a written request for reconsideration with the postal official who issued the final denial of the claim. . . .
Id. (emphasis added). Defendant submitted to the court the certified mail receipt showing that this letter was received by plaintiff's counsel. Id. The USPS did not receive a request for reconsideration from plaintiff or plaintiff's counsel within the six-month period following the April 14, 2004, denial letter. Bjurstrom Decl. ¶9. Plaintiff did not file a complaint in federal district court within the six-month period. Id.
Plaintiff, however, subsequently filed through his counsel a second Standard Form 95 dated May 3, 2005 and marked received May 5, 2005 (hereinafter, plaintiff's "May 2005 SF-95"). Def.'s Ex. E. The May 2005 SF-95 claim was received over one year after the April 14, 2004 denial letter was sent. In the May 2005 SF-95 claim, plaintiff re-alleged property damage of $698.79 and added a claim for personal injury damage in the amount of $80,000.00. Id. Plaintiff, by his counsel, also supplemented his responses to other questions on the form. Id.
The parties dispute the effect of circumstances that took place after the accident and before the USPS' communications with plaintiff's counsel concerning plaintiff's claim. Plaintiff asserts that he informed the USPS by a letter from his counsel dated July 16, 2003, that he was represented by counsel. Pl.'s Ex. A (July 16, 2003 Letter from Andrew Glasgow to Tom Dziubinski). There is no indication in the record whether this letter was received by USPS or forwarded to Patricia A. Sullivan, the USPS claims analyst with whom plaintiff was in contact. According to plaintiff, however, USPS had contact with him directly by letter stamped July 17, 2003, from Sullivan to plaintiff enclosing a blank Standard Form 95. Pl.'s Ex. B. This letter included Sullivan's telephone number (handwritten on the letter) and notified plaintiff that he could contact Sullivan if he had any questions concerning the matter. Id. Enclosed was a blank Standard Form 95. Id. It was this form that plaintiff filled out and submitted as his July 2003 SF-95 claim.
In addition to this written correspondence, plaintiff avers that he had several telephone conversations with Sullivan between July 22 and July 28, 2003. See Pl.'s Aff. ¶¶ 7-9. Plaintiff avers that he initially received the blank Standard Form 95 as a result of a telephone conversation with Sullivan during which they discussed the need for repairs to his car. Id. ¶6. Plaintiff also avers that he had telephone conversations with Sullivan between July 22, 2003, and July 25, 2003, about getting his car repaired, during which Sullivan advised him to take his car to a garage on West Liberty Avenue in Pittsburgh and that she needed an estimate before the USPS would pay for repairs to the car. Id. ¶7. In addition, plaintiff avers that when he mailed her the July 2003 SF-95 he believed that he was submitting "only an estimate" for car repairs, and not that he was filing a legal claim for the accident. Id. ¶8.
Plaintiff avers that he mailed the July 2003 SF-95 without consulting his counsel because he firmly believed that in submitting the form he was only supplying an estimate for car repairs. Id. The Standard Form 95 that plaintiff used, however, which is titled "Claim for Damage, Injury, or Death," instructs claimants to "[p]lease read carefully the instructions on the reverse side and supply information requested on both sides of the form;" and in the section entitled "amount of claim," indicates in the box for totaling the amount of the claim for property damage, personal injury, and wrongful death (item 12) that "[f]ailure to specify may cause forfeiture of your rights." Def.'s Ex. A; Pl.'s Ex. D at 1. The instructions on the reverse side of the form provide in all caps:
A CLAIM SHALL BE DEEMED TO HAVE BEEN PRESENTED WHEN A FEDERAL AGENCY RECEIVES FROM A CLAIMANT, HIS DULY AUTHORIZED AGENT, OR LEGAL 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 PROPERTY, PERSONAL INJURY, OR DEATH ALLEGED TO HAVE OCCURRED BY REASON OF THE INCIDENT. THE CLAIM MUST BE PRESENTED TO THE APPROPRIATE FEDERAL AGENCY WITHIN TWO YEARS AFTER THE CLAIM ACCRUES.
Id. at 2 (emphasis in original). Moreover, the instructions explicitly state that:
If claimant intends to file claim [sic] for both personal injury and property damage, claim for both must be shown in item 12 of this form. . . .
Failure to specify a sum certain will result in invalid presentation of your claim and may result in forfeiture of your rights.
Id. (emphasis in original). The form also instructs claimants to "[c]omplete all items -- insert the word NONE where applicable." Id.
Plaintiff avers that he spoke to Sullivan on July 28, 2003, at approximately 12:45 p.m. She told him she had sent a form to his attorney that is used to file the personal injury and the car repair as one claim. She also said she received a copy of his car estimate, and instructed plaintiff to have his attorney call her because she was not supposed to speak directly to him. Id. ¶9. Plaintiff avers that he believes that Sullivan deceived him concerning the nature and function of the July 2003 SF-95 form. Id. ¶10. He avers that he believes that he filed his claim with the USPS for his June 17, 2003 accident on May 3, 2005 when his attorney mailed the May 2005 SF-95 to Sullivan. Id. ¶11.
Defendant responds that, upon being advised that plaintiff was represented by counsel, Sullivan sent a letter to plaintiff's counsel on August 2, 2003, enclosing a copy of the July 2003 SF-95 submitted by plaintiff to the USPS. Defendant's Reply Brief (Doc. No. 27), Ex. A (August 2, 2003 Letter from Patricia Sullivan to Andrew Glasgow). This letter acknowledges receipt of correspondence from Mr. Glasgow on August 2, 2003, that same day, advising the USPS that he represented plaintiff. Id.
Defendant also avers that at no time did plaintiff's counsel seek to amend the July 2003 SF-95 to add a claim for personal injury although it is well-settled that an administrative tort claim filed pursuant to the FTCA may be amended at any time prior to the federal agency's issuance of a written denial of the claim pursuant to 28 C.F.R. § 14.2(c) and 39 C.F.R. § 912.5(b)(3). See Def.'s Reply Brief, Ex. B (copies of 28 C.F.R. § 14.2(c) and 39 C.F.R. § 912.5(b)(3)). In addition, defendant avers that plaintiff's counsel did not seek reconsideration of the USPS's denial of the claim within the six-month statute of limitations as authorized by 28 C.F.R. § 14.9(b). See id., Ex. C (copy of C.F.R. § 14.9). Indeed, the April 14, 2004 denial letter sent to plaintiff through his counsel relayed these deadlines to plaintiff and his counsel. See Def.'s Ex. C. Plaintiff filed this lawsuit on November 18, 2005.
Standard for Deciding a Rule 12 (b)(1) Motion to Dismiss
A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction raises the issue whether the court has the power to hear the matter before it. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). The burden of establishing jurisdiction lies with the party seeking to invoke the court's jurisdiction. Kehr ...