United States District Court, D. Delaware
GORDON S. WALKER, SR., Plaintiff,
UNITED STATES OF AMERICA, Defendant.
GREGORY M. SLEET, District Judge.
On September 26, 2011, the plaintiff filed a negligence suit against the defendant United States of America (the "Government") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. (D.I. 1.) On June 27, 2013, the Government filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1). (D.I. 43.) The Government argues that the court lacks subject matter jurisdiction because the plaintiff filed the suit prematurely and failed to exhaust his administrative remedies by not allowing the government agency six months to consider his claim as required by the FTCA. (D.I. 44.) Pending before the court are Magistrate Judge Burke's Report and Recommendation, (the "Rand R"), dated October 31, 2013 (D.I. 48), the plaintiff's Objections to Report and Recommendation (D.I. 49), and the Government's Response to the plaintiff's Objections (D.I. 50). For the reasons discussed, the court will overrule the plaintiff's objections, and adopt the Rand R, which recommends that the court: (1) grant the Government's motion to dismiss for lack of subject matter jurisdiction; and (2) dismiss the plaintiff's Complaint with prejudice.
On September 28, 2009, a car driven by Donna Phelps ("Phelps") rear-ended a car driven by the plaintiff. (D.I. 48 at 1.) At the time of the incident, Phelps was an employee of the United States Postal Service ("USPS"). ( Id. ) On February 3, 2010, Phelps's insurance carrier denied coverage for the plaintiff's claim, noting that at the time of the loss, Phelps was working for the USPS. ( Id. at 1-2.)
On February 26, 2010, the plaintiff's counsel sent a letter to the USPS that included a copy of the police report regarding the accident and the letter from Phelps's insurance carrier denying coverage, but the letter did not include a demand for money damages. ( Id. at 2.) The USPS replied in a letter dated March 5, 2010, and advised the plaintiff to present a claim on a Standard Form 95 ("SF95") within two years of the incident. The USPS letter enclosed a copy of the SF95, as well as instructions that the form must be filled out completely and submitted with supporting documentation before it would constitute a valid claim. ( Id. )
On April 6, 2011, the plaintiff's counsel directed a letter to the USPS that alleged facts regarding the incident, provided details regarding the plaintiff's medical condition, and demanded $125, 000 for injuries sustained in the accident. The letter, along with an incomplete SF95 form regarding the accident, was marked as received by the USPS on April 26, 2011. ( Id. ) That same day, the USPS sent the plaintiff a letter indicating that his last correspondence could not be accepted as a valid claim; specified the particular boxes that had been left blank on the incomplete SF95; and enclosed a new SF95 along with instructions that the form should be completed and resubmitted before the USPS could take any action to dispose of the claim. ( Id. at 3.)
On May 16, 2011, the USPS received the plaintiff's fully completed SF95. ( Id. ) On May 19, 2011, the USPS mailed the plaintiff a letter that acknowledged April 26, 2011 as the date of the plaintiff's claim, and informed the plaintiff that "by Statute, the Postal Service has six months from April 26, 2011 in which to adjudicate your claim." ( Id. quoting D.I. 44, Ex. 7.)
On September 26, 2011, the plaintiff filed his Complaint in the instant case against both Phelps and the Government. (D.I. 1.) Less than a month later, on October 20, 2011, the USPS denied the plaintiff's administrative claim on the grounds that Phelps was not acting within the scope ofher employment at the time of the incident. (D.I. 48 at 4.) In that letter, the USPS indicated that any lawsuit filed in regards to the denial must be filed within six months of October 20, 2011. ( Id. ) On January 13, 2012, the Government filed an Answer in the instant action that acknowledged Phelps was operating a vehicle within the scope of her employment, and also prepared a stipulation (later granted) to remove Phelps as a defendant. (D.I. 7, 9, 10.) On June 27, 2013, the Government filed the instant motion to dismiss. (D.I. 43.)
III. STANDARD OF REVIEW
The court conducts a de novo review when determining whether to adopt a magistrate judge's decision on a dispositive matter. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)(3). Upon review, the court may accept, reject, or modify the magistrate judge's recommendations. Fed.R.Civ.P. 72(b)(3). The court may also choose to receive further evidence or to return the matter to the magistrate judge with instructions. Id.
The plaintiff presents six objections to Magistrate Judge Burke's Rand R. The court will address the objections in turn.
The plaintiff challenges the magistrate judge's legal conclusion that "April 26, 2011 is the earliest date that the plaintiff's claim could have been deemed to be presented.'" (D.I. 48 at 12.) The plaintiff does not challenge the magistrate judge's fact-finding that the February 26, 2010 written communication with the USPS did not reflect a claim for "sum certain" damages. Rather, he argues that the magistrate judge erred by not presenting a legal explanation as to why the April 25, 2011 and May 13, 2011 amendments do not "relate back" to the February 26, 2010 submission. (D.I. 49 at 3.) The plaintiff contends that the April and May 2011 amendments cured his improperly presented February 2010 claim because the amendments occurred within the time limitations of 28 C.F.R § 14.2(c) -"any time prior ...