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Hall v. United States

United States District Court, N.D. Indiana, Fort Wayne Division

October 1, 2019




         Before the Court is Defendant's, United States of America (“the Government's”), “Motion to Dismiss Plaintiffs' Complaint for Damages for Personal Injury or Alternatively for Summary Judgment” [DE 4]. Plaintiffs responded in opposition and the Defendant replied. For the following reasons, the Government's Motion will be GRANTED.


          On January 15, 2016, while in the parking lot on her way to the United States Post Office (“USPS”) in Corunna, Indiana, Plaintiff Kathy Hall (“Kathy”) slipped on ice and snow fracturing her ankle. Plaintiffs allege the Government (as well as others named in a separate suit) are liable for damages under a theory of negligence for failing to maintain the parking lot in a reasonably safe condition and warn Kathy of the danger presented. (Complaint, DE 1).

         Plaintiffs' Complaint against the Government is brought under provisions of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2671, et seq. Pursuant to the procedural requirements of the FTCA, the Plaintiffs filed their Claims for Damage, Injury, or Death, loss of services and consortium with the USPS on July 22, 2016. (Declaration of Kimberly Herbst, at ¶3, hereafter, “Herbst Dec. at ¶ ___.”). The USPS denied Kathy's claim on August 14, 2017, asserting that its investigation revealed there was no negligent or wrongful act or omission by an employee of the USPS since the location of Kathy's fall was not owned or maintained by the USPS. (Herbst Dec., Exhibits B, D and E).[1] Kathy's denial letter advised her that if she disagreed with the USPS determination, she should file suit. It further specifically set forth the following:

…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. Further, note the United States of America is the only proper defendant in a civil action brought pursuant to the Federal Tort Claims Act and such suit may be heard only by a federal district court.

(DE 5-1, Exhibit B). Additionally, the letter specifically referenced the FTCA statutory citation.

         On October 19, 2017, Plaintiffs filed a state court action in DeKalb Superior Court naming Mark Souder and Pitney Bowes, Inc, as defendants. (Chronological Case Summary, DE 5-2). The Government was not named initially in this suit. On December 13, 2017, the Honorable Kevin Wallace of Dekalb Superior Court recused himself from the case and the parties agreed to the appointment of a special judge. However, while the parties awaited the appointment of the special judge, the Plaintiffs, despite being advised in Kathy's denial letter that suit was proper in a United States District Court against the United States of America, filed a Proposed Amended Complaint in the state court naming the USPS (not the United States) as a defendant. After the first special judge declined the appointment, on April 18, 2018, a second special judge, Honorable Allen N. Wheat, of the Steuben Circuit Court accepted the appointment. Thereafter, on June 5, 2018, Judge Wheat ordered the case transferred to the Steuben Circuit Court and granted the Plaintiffs' Motion to Amend the Complaint from December 28, 2017, naming the USPS (not the United States of America) as a Defendant. On the same date, the Plaintiffs filed a Second Amended Complaint naming Frank Nester and Nester Construction, as additional defendants.

         The USPS received a summons from the DeKalb Superior Court[2] on June 12, 2018 and the United States Attorney's Office received a summons on June 8, 2018. Upon receipt of the summons, pursuant to 28 U.S.C. §1442, the Government removed the case to the district court on July 6, 2018, see Hall, et al. v. Souder, et al., 1:18-CV-210 TLS/SLC (“hereafter, Hall I”). The Government then moved to dismiss the case for lack of derivative jurisdiction, [3] which the Court granted on March 4, 2019. (Hall I, at ¶ 22).[4] The remaining state claims were remanded to the Steuben Circuit Court. (Id.). Fifteen days thereafter, Plaintiffs refiled their claims in an attempt to invoke the original jurisdiction of this Court and naming, for the first time, the proper party defendant, the United States of America. The Government now moves to dismiss claiming that the attempt to invoke the Court's original jurisdiction is untimely under the FTCA.


         It is well established that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued, ” and hence may be sued only to the extent that it has waived sovereign immunity by enacting a statute consenting to the suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). Sovereign immunity extends to both the United States as well as its agencies. FDIC v. Meyer, 510 U.S. 471, 475 (1994). In the FTCA, “Congress waived the United States's sovereign immunity for suits brought by persons injured by the negligence of federal employees acting within the scope of their employment.” Furry v. United States, 712 F.3d 988, 992 (7th Cir. 2013) (citing Emp'rs Ins. of Wausau v. United States, 27 F.3d 245, 247 (7th Cir. 1994)). The FTCA is the exclusive remedy for any tort claim resulting from the negligence of a government employee acting within the scope of employment, see Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2012), and federal district courts have exclusive jurisdiction over such FTCA claims. See Keller v. United States, 771 F.3d 1021, 1022 (7th Cir. 2014) (citing 28 U.S.C. § 1346(b)(1) and § 2674).

         The Government asserts that the Complaint must be dismissed because the Plaintiffs failed to comply with the FTCA and timely file their Complaint in the District Court naming the proper party. While the Supreme Court has held that the failure to comply with the FTCA is not jurisdictional, see United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1633, 191 L.Ed.2d 533 (2015), to institute an action against the United States under the FTCA, a claimant must first exhaust her administrative remedies by filing an administrative claim with the appropriate federal agency, 28 U.S.C. § 2675(a), and she must do so within the time provided by the two-year statute of limitations as set forth in the FTCA. 28 U.S.C. § 2401(b). Section 2401(b) requires that the claimant file an administrative claim within the appropriate federal agency within two years of the claim accruing and file a complaint in the district court within six months of the denial of the administrative claim. Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003) (citing 28 U.S.C. § 2675(a)); PW by Woodson v. United States, No. 2:17-CV-407-TLS, 2019 WL 4246763, at *5 (N.D. Ind. Sept. 5, 2019). At issue here is the second requirement, that is, whether the Plaintiffs filed a complaint in the district court within six months of the denial of Kathy's administrative claim.

         The Government argues that on its face, the Plaintiffs did not comply with this limitations period as they filed suit initially in state court and, eventually attempted to add the USPS to that state court suit. As part and parcel of its argument, the Government adds that the Plaintiffs were specifically advised in the denial notice where to file suit, the time frame for filing suit, and the proper party defendant. Thus, it contends, that the failure of Plaintiffs or their counsel to heed the roadmap they were provided to properly file suit should not deprive the Government of the statute of limitations.

         In response, the Plaintiffs' argument is two-fold. First, they claim that case law holds that where a plaintiff files a defective pleading in state court against a federal entity and that claim is dismissed for lack of derivative jurisdiction, the plaintiffs should be given the opportunity to refile a proper claim. See Abu-Hamos v. First Merit Bank, 2015 WL 7710374 (N.D. Ill. Nov. 30, 2015); Pelto v. Office Of Reg'l Chief Counsel, 2013 WL 5295678 (W.D.Wis. Sept. 19, 2013). Second, they assert that while they filed the Complaint in state court, their attempt to add the USPS (but not the United States as advised in the notice) was within 6 months of the denial of Kathy's administrative claim. For this reason, they argue that “the time limits in the FTCA are just time limits, nothing more. Even though they govern ...

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