OSVALDO GUZMAN v. UNITED STATES POSTAL SERVICE RAYMOND POLANCO (2022)

REPORT AND RECOMMENDATION TO HON. LEWIS A. KAPLAN: MOTION TO DISMISS

Plaintiff Osvaldo Guzman (“Guzman”) brings this personal injury lawsuit against Defendants United States Postal Services (“USPS”) and Raymond A. Polanco (“Polanco”) under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671 et. seq. (“FTCA”). Guzman alleges that he was injured as a result of Polanco's negligence when a USPS vehicle driven by Polanco struck Guzman's vehicle. Guzman further alleges that USPS is liable as Polanco's employer. Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Defendants assert that Guzman failed to exhaust his administrative remedies as required under the FTCA. For the reasons discussed below, I recommend that Defendants’ motion be GRANTED and that the Complaint be dismissed for lack of subject matter jurisdiction.

BACKGROUND 1

As required on a motion to dismiss, the Court accepts as true all well-pled allegations in the Complaint and draws all reasonable inferences in favor of Guzman, the non-moving party.

A. The Vehicular Incident

On December 23, 2019, Polanco was driving a USPS vehicle during the course of his employment as a USPS employee. At approximately 4:54 p.m., at or near the intersection of West 175th Street and Amsterdam Avenue, Polanco's vehicle struck the vehicle that Guzman was driving. Guzman alleges that Polanco was negligent in failing to properly operate the vehicle; driving the vehicle at an excessive rate of speed, and failing to give any signal or warning of approach. As a result, Guzman alleges, he suffered serious and permanent physical and emotional injury and has incurred significant medical expenses. Guzman demands damages in the amount of five million dollars.

B. Guzman's Administrative Claim

On October 22, 2020, USPS received a Standard Form 95 (“SF-95”) administrative claim from Guzman regarding the accident. Instructions at the top of the first page of the SF-95 directed Guzman to “read carefully the instructions on the reverse side and supply information requested on both sides of this form” and to “[s]ee reverse side for additional instructions.” (SF-95 at 1.² ) The detailed instructions on the reverse side state “[i]n support of the claim for personal injury or death, the claimant should submit a written report by the attending physician, showing the nature and extent of the injury, the nature and extent of treatment, the degree of permanent disability, if any, the prognosis, and the period of hospitalization, or incapacitation, attaching itemized bills for medical, hospital, or burial expenses actually incurred.” (SF-95 at 2.)

Under “Basis of Claim” on the first page of the SF-95, Guzman alleged that “USPS's truck sideswiped claimant's vehicle, claimant was caused to suffer serious injuries to multiple parts of his body.” Guzman described his injuries as “serious injuries to his head, neck, shoulders, arms, hands and back,” but he did not provide any detail and did not submit any supporting documentation regarding the extent of treatment, medical bills, and/or hospital stays. Guzman set forth a sum certain demand amount of one million dollars. The SF-95 identified Guzman as being represented by counsel Cornelius Redmond. (SF-95 at 1.)

On November 2, 2020, USPS Torts Claim Examiner/Adjudicator Javier Soto-Arocho sent a letter to attorney Redmond regarding Guzman's administrative claim. The letter explained that “[b]efore this claim can be considered for adjudication it must be supported by competent evidence as defined within the SF95 claim form.” The letter requested medical records and itemized bills for treatment received in connection with Guzman's incident and directed Redmond to the instructions on the back side of the SF-95. The letter stated that if the requisite materials were not submitted, USPS would not be able to properly evaluate the claim “and [would] have no recourse but to issue a denial.” (Herbst Decl. 7, Ex. 2.) USPS received no response to the letter or any additional support from Guzman. (Herbst Decl. 8.) Guzman's attorney asserts, in his memorandum of law but not by way of a sworn statement, that he never received the November 2, 2020 letter from Mr. Soto-Arocho. (Pl. Mem. at 9.³ ) On July 28, 2021, USPS denied Guzman's administrative claim by letter. (Herbst Decl. 9.)

C. The Instant Action

Guzman filed his Complaint in this Court on May 17, 2021. (Dkt. 1 (“Compl.”).) On May 18, 2021, the case was referred to the undersigned for general pre-trial purposes and report and recommendation on dispositive motions. (Dkt. 6.) On May 11, 2022, Defendants filed their motion to dismiss for lack of subject matter jurisdiction. (Dkts. 15-17.) On July 7, 2022, Guzman filed his opposition (Dkt. 22.), and on July 19, 2022, Defendants filed their reply. (Dkt. 23.)

LEGAL STANDARDS

A. Motion To Dismiss For Lack Of Subject Matter Jurisdiction

On a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, a court must dismiss a claim if it “lacks the statutory or constitutional power to adjudicate it.” Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted), aff'd, 561 U.S. 247, 130 S. Ct. 2869 (2010). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transportation System, Inc., 426 F.3d 635, 638 (2d Cir. 2005). In deciding a Rule 12(b)(1) motion to dismiss, the Court “ ‘must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff.’ ” Morrison, 547 F.3d at 170 (quoting Natural Resources Defense Council Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (internal quotation marks omitted)). The Court, however, “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue.” J.S. ex rel. N.S. v. Attica Central Schools, 386 F.3d 107, 110 (2d Cir. 2004); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ․ may refer to evidence outside the pleadings”).

B. Jurisdiction Under The FTCA

The FTCA includes a “limited waiver” of sovereign immunity and “allows for a tort suit against the United States under specified circumstances.” Hamm v. United States, 482 F.3d 135, 137 (2d Cir. 2007). Under the statute, a private citizen may sue for injuries caused by “the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). “Any waiver of the government's sovereign immunity is to be strictly construed in favor of the government.” Long Island Radio Co. v. NLRB, 841 F.2d 474, 477 (2d Cir. 1988). As discussed further below, the FTCA requires that a claimant must first exhaust all administrative remedies before filing an action in federal district court. That requirement is jurisdictional and cannot be waived. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).

DISCUSSION

The FTCA requires tort claimants against the federal government to “present” an administrative claim to the alleged agency tortfeasor as a precondition to bringing a lawsuit. 28 U.S.C. § 2675(a). Defendants argue that Guzman did not properly present his claim because he failed to adequately explain the nature of his injuries to USPS in his administrative claim. As a result, Defendants argue, Guzman did not exhaust his administrative remedies, and his Complaint should be dismissed for lack of subject matter jurisdiction. The Court agrees.

A. The FTCA's Presentment Requirement

In 1996, Congress enacted a jurisdictional presentment requirement for FTCA claims “as part of a package of amendments designed to facilitate out-of-court settlement.” GAF Corp. v. United States, 818 F.2d 901, 905 (D.C. Cir. 1987). The FTCA provision mandating presentment before claimants can sue the government states:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury ․ unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

28 U.S.C. § 2675(a). Proper presentment allows the government to “investigate, evaluate, and consider settlement of a claim” in order to “eas[e] court congestion and avoid unnecessary litigation.” Romulus v. United States (“Romulus I”), 983 F. Supp. 336, 338 (E.D.N.Y. 1997) (internal quotation marks omitted), aff'd, 160 F.3d 131 (2d Cir. 1998) (“Romulus II”).

To satisfy the presentment requirement, the claimant has the burden to sufficiently provide information regarding the nature and merits of their claim. Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir. 1983). The “mere act of filing a SF-95 [notice of claim] does not necessarily fulfill the presentment requirement.” Romulus II, 160 F.3d at 132. Rather, “[a] claimant must provide more than conclusory statements which afford the agency involved no reasonable opportunity to investigate.” Id. An SF-95 “must provide a reviewing agency with sufficiently specific information as to the basis of the claim, the nature of the claimant's injuries, and the amount of damages sought such that the agency can reasonably understand what it must investigate to determine liability, to value the claim, and to assess the advisability of settlement.” Collins v. United States, 996 F.3d 102, 119 (2d Cir. 2021). A claimant can provide this information by narrative, evidence, or other means. Id. at 114. While “a conclusory assertion of claims” will not suffice, the presentment requirement “does not necessarily require that a claimant provide an agency with supporting evidence.” Id. at 105.

B. Plaintiff Has Not Satisfied The Presentment Requirement

The SF-95 notice of claim Guzman submitted to USPS was not sufficient to satisfy the FTCA's jurisdictional presentment requirement. Guzman included only a vague account of the incident and an overly general description of his injuries. Nor did Guzman provide any supplemental information, either before or after USPS issued a letter asking for medical records.

Guzman nonetheless argues that the SF-95 he submitted satisfied the presentment requirement because (1) only “minimal notice” is necessary to fulfill this requirement, and (2) USPS necessarily had enough information to adequately investigate the incident as they were able to deny his claim. (Pl. Mem. at 8, 11.)

Guzman correctly asserts that the “jurisdictional presentment prerequisite is one of notice, not proof.” Collins, 996 F.3d at 105. Adequate notice, however, still requires claimants to provide sufficiently detailed information about the relevant incident and any injuries suffered. The information Guzman provided in his SF-95 was purely conclusory. With respect to description of both the incident and his injuries, Guzman's case bears far more similarity to those cases where the courts have found claimants’ presentment to be insufficient to exhaust administrative remedies than to cases where claimants’ presentment was deemed sufficient.

The instant case bears similarity to two others from this Circuit. In Romulus I, the District Court found plaintiff's vague SF-95 insufficient to satisfy the presentment requirement. 983 F. Supp. 336. In describing the incident, the plaintiff, like Guzman, described the alleged incident in overly general terms. The plaintiff stated that “she was injured as the result of being struck from behind by the postal truck.” She provided “the date, time, and approximate location of the accident,” “but there was no identification of the driver of the truck, the number of the vehicle, or any other information pertinent to the claim, such as medical records.” Id. at 337. The plaintiff only vaguely described her injuries, stating that she “sustained severe personal injuries to her head, body, and extremities, pain and suffering, and emotional distress.” Id. USPS sent a follow-up communication requesting further information, including medical reports and bills, and wage loss statements. After receiving no response, USPS denied the claims. Id.

The District Court explained that although a plaintiff “need not provide all possible information to satisfy the jurisdictional predicate” of presentment, neither could she “maintain an action after submitting a conclusory form that provided no information” and “simply refuse to provide an agency with any information to investigate the claim.” Romulus I, 983 F. Supp. at 342. The Second Circuit affirmed, explaining that “[a] claim must be specific enough to serve the purpose of the FTCA to enable the federal government to expedite the fair settlement of tort claims.” Romulus II, 160 F.3d at 132 (quoting Johnson v. United States, 788 F.2d 845, 848-849 (2d Cir. 1986)).

Similarly, in Ruffin v. United States, the plaintiff's SF-95 included no specific details describing the incident or injuries suffered and no supplemental information was provided. Plaintiff described his injuries as follows: “My injuries include, but are not necessarily limited to, [right] side neck [and] shoulder; middle [and] lower back.” Ruffin v. United States, No. 20 Civ. 4218, 2021 WL 4408039, at *3 (E.D.N.Y. Sept. 21, 2021). In response, USPS requested by letter that plaintiff's counsel provide “medical records and itemized bills for treatment ․ as well as support any claimed wage loss.” The letter cautioned that, without the requested materials, USPS “[would] be unable to properly evaluate the claim and will have no recourse but to issue a denial.” Id. at *3. Ruffin did not supply the requested records nor responded to a second letter sent by USPS, and USPS denied his claim. The court determined that the slight information supplied in the SF-95 was insufficient for USPS “to conduct an investigation and then to estimate the value of the claim.” Id. at *4 (quoting Collins, 995 F.3d at 114). “By relying on only vague, conclusory statements concerning Plaintiff's alleged injuries, the form fails to ‘put USPS on notice ․ of the immediate’ injuries and of potential ‘recovery challenges’; it does not ‘alert USPS to the scope of [Plaintiff's] alleged injuries.’ ” Id. (quoting Collins, 995 F.3d at 113).

As in both Romulus and Ruffin, Guzman submitted a barebones SF-95 without support and did not respond to the USPS follow-up letter asking for additional information. The description of the incident in Guzman's SF-95 (“USPS's truck sideswiped claimant's vehicle”) is just as vague and no more informative than that in Romulus (“struck from behind by the postal truck”). In Ruffin, the claimant identified the USPS truck driver, 2021 WL 4408039 at *4; Guzman did not.

Guzman's SF-95 also did not provide sufficient information about the nature of the injuries he sustained in the collision. His vague description (“serious injuries to his head, neck, shoulders, arms, hands, and back”) is almost identical to the description in Romulus (“severe personal injuries to her head, body, and extremities, pain and suffering, and emotional distress”) and Ruffin (“injuries include, but are not necessarily limited to, [right] side neck [and] shoulder; middle [and] lower back”). See also Davis v. United States, No.13-CV-403, 2013 WL 5225931, at *2 (S.D.N.Y. Sept. 13, 2013) (finding plaintiff's description of the nature and extent of injury as “Left Shoulder Surgery, Neck, Back, Multiple” failed to satisfy the presentment requirement); Lee v. United States Department of the Army, No. 11-CV-331, 2013 WL 4048329, at *1, 5 (E.D.N.Y. Aug. 9, 2013) (finding plaintiff failed to meet presentment requirement where notice of claim referencing “injuries to the neck, back, right shoulder” and “expenses for medical care, attention and treatment ․ provided only a general description of his injuries and included no information that would allow the Army to deduce the extent or severity of those injuries”); Furman v. United States Postal Service, 349 F. Supp.2d 553, 556-57 (E.D.N.Y. 2004) (finding SF-95 claiming plaintiff sustained “serious, severe and permanent injuries” was not “specific enough to serve the purpose of the FTCA,” and that plaintiff thus failed to exhaust administrative remedies).

Like the claimants in Romulus and Ruffin, Guzman provided no more than “conclusory statements which afford [USPS] no reasonable opportunity to investigate.” Romulus II, 160 F.2d at 132. Guzman thereby failed to satisfy the presentment requirement necessary for the Court to maintain subject matter jurisdiction.

Guzman relies on two cases in particular to support his claims – Collins, and Adams v. United States, 615 F.2d 284 (5th Cir. 1980). Those cases, however, are factually and materially distinct. Indeed, both cases compel a finding that Guzman's notice of claim does not meet the requisite threshold for notice and exhaustion of remedies.

In Collins, the distinctions are many. The plaintiff identified the USPS driver by name and described the precise location where the incident occurred. Collins, 996 F.3d at 112. Second, information, like internal records and the report of an on-scene investigator, was available to USPS from its own identified employee and from an equally accessible police accident report. Id.; see Johnson, 788 F.2d at 849 (presentment does not require claimants to provide information likely already in agency's possession). Third, the plaintiff provided a relatively detailed account of his injuries: “fractured left knee; 6 rib fractures (3 front, 3 back); left elbow, exposed bone and/or fracture; head; chest, including chest infection; equilibrium issues; blood infection.” Collins, 996 F.3d at 106. The SF-95 further reported that Collins was still in the hospital, specifically the intensive care unit. Id. Fourth, the plaintiff submitted hospital bills identifying the services performed and monetary amounts incurred. The plaintiff also provided an authorization for release of all his medical records. Id. Fifth, USPS initially sent a letter indicating that USPS was reviewing the claim but nowhere suggesting that the claim was deficient or that additional information was needed. Id. Sixth, only two weeks before expiration of the six-month period for USPS to complete its review, USPS sent a letter asking for more information. Plaintiff's counsel promptly responded to the letter with detailed information. Id. at 107.

Unsurprisingly, the Second Circuit determined that the plaintiff in Collins had satisfied the FTCA presentment requirement. The Court recognized that Collins “did not rely on mere conclusory statements in presenting his claim” and had “avoided the missteps identified in Romulus.” Collins, 996 F.3d at 112. Collins provided a “narrative of the relevant events” reinforced by USPS's on-site investigative information, described his specific injuries, provided supporting medical records, and kept USPS informed about his course of treatment. Id. Guzman did none of those things, thus following the same “missteps” taken by the plaintiff in Romulus.

Adams is also distinguishable. There, the plaintiffs brought a negligence action for injuries their child suffered during birth at a Veterans Administration hospital. As the hospital was a federal facility, the government agency “already possessed, or had ready access to, most of the information demanded, such as pertinent medical records and itemized bills or expenses.” 615 F.2d at 287. Additionally, when the claims officer requested further information, the Adams plaintiffs responded to most of the requests. Id. at 286. Plaintiffs expressed that they “[were] in no way refusing to cooperate” with the claims officer's requests and told the claims officer that they would furnish “all of the items requested” in earlier letters “as soon as we have received them ourselves.” Id. Here, in contrast, Guzman did not provide any supplemental information outside of his vague SF-95. And, unlike in Collins and Adams, there is no indication that USPS independently had access to any additional information that would aid in its investigation of Guzman's claim.

To find Guzman's conclusory claim sufficient would undermine the purposes of the notice requirement to “promptly inform the relevant agency of the circumstances of the accident so that it may investigate the claim and respond either by settlement or defense,” Adams, 615 F.2d at 289, and “to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.” Id. at 288 (quoting S. Rep. No. 1327, 89th Cong., 2d Sess. 6, reprinted in (1966) U.S. Code Cong. & Admin. News, pp. 2515, 2516.) Guzman provided little information in his SF-95 regarding the relevant incident and described his injuries in a vague manner without supplemental information. Although the requisite jurisdictional notice under § 2675 is “minimal,” Adams, 615 F.2d at 289, the scant information provided by Guzman fails to meet that threshold.

C. USPS Did Not Have An Obligation To Send A Follow-Up Letter

Guzman argues that apart from his SF-95, he would have readily provided USPS with supporting records if he had received the letter from USPS seeking additional medical documentation. (Pl. Mem. at 9.) There are at least two shortcomings with that argument. First, the only statement that Guzman did not receive the USPS letter is in his lawyer's memorandum of law, and neither Guzman nor his attorney have submitted a sworn statement that they did not receive the letter. But even if they had, the argument would still not help Guzman. That is because USPS had no obligation to send the follow-up letter at all.

The government has no obligation “to inform a claimant that their Notice of Claim is insufficient” and that additional information is required. Donahue v. U.S. Transportation Security Administration, 457 F. Supp.2d 137, 143 (E.D.N.Y. 2006); see also Adams v. U.S. Department of Housing & Urban Development, 807 F.2d 318, 320 (2d Cir. 1986) (“the government was under no obligation to advise [claimant] to comply with § 2675 if she wished eventually to bring suit”) (citing Dancy v. United States, 229 Ct. Cl. 300, 668 F.2d 1224, 1228 (Cl. Ct. 1982)).

The government can, and often does, inform a claimant that their FTCA claim was insufficient. See, e.g., Hardie v. United States, 501 F. Supp.3d 152, 156 (E.D.N.Y. 2020); Tamares v. United States, No. 07-CV-0688, 2009 WL 691002, at *1 (S.D.N.Y. Mar. 17, 2009); Furman, 349 F. Supp.2d at 555 (E.D.N.Y. 2004); White-Squire v. U.S. Postal Service, No. 08-3486, 2009 WL 313338, at *1 (D.N.J. Feb. 6, 2009). Doing so has been referred to as a “courtesy.” Donahue, 457 F. Supp.2d at 143. In those cases, the manner in which follow-up information was requested was not uniform and was highly case-specific, and no court found a statutorily mandated duty to solicit further information from an FTCA claimant. Unlike other statutes, the FTCA does not set forth an obligation by the agency to help a claimant adequately support its claim. Cf. Veterans Claims Assistance Act 38 U.S.C. § 5103A(a),(b) (the Secretary is required to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for benefits”). The Court may not create one.

Assuming for present purposes that Guzman did not receive the USPS letter, that is unfortunate. But the USPS had no obligation to even send the letter, and the deficiency could have been prevented in the first place if Guzman had provided sufficient information to allow the USPS to properly investigate and value the claim. See Romulus II, 160 F.3d at 132; Keene Corp., 700 F.2d at 842.

CONCLUSION

For the reasons discussed above, I recommend that Defendants’ motion be GRANTED and the Complaint dismissed. To the extent not discussed above, the Court has considered Plaintiff's arguments and finds them to be without merit.

DEADLINE TO OBJECT AND PRESERVE APPEAL

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Lewis A. Kaplan, United States Courthouse, 40 Foley Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 1007. Failure to file timely objections will result in waiver of objections and preclude appellate review.

FOOTNOTES

2.   The SF-95 completed by Guzman is attached as Exhibit 1 to the Declaration of Kimberly A. Herbst, dated May 10, 2022 (“Herbst Decl.”) (Dkt. 17.).

3.   “Pl. Mem.” refers to Plaintiff's Memorandum Of Law In Opposition To Defendants’ Motion To Dismiss, filed on July 7, 2022 at Dkt. 22.

ROBERT W. LEHRBURGER UNITED STATES MAGISTRATE JUDGE