1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RAKESH KUMAR, No. 2:18-cv-03028-MCE-AC 11 Plaintiff, 12 v. MEMORANDUM AND ORDER 13 UNITED STATES OF AMERICA, 14 Defendant. 15 16 Through the present action, Plaintiff Rakesh Kumar (“Plaintiff”) seeks damages 17 against the government for personal injuries he sustained at a federal post office facility. 18 The United States now moves to dismiss Plaintiff’s lawsuit for lack of subject matter 19 jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) on grounds that Plaintiff 20 failed to exhaust the administrative remedies prior to bringing suit.1 For the reasons 21 stated below, that Motion is GRANTED.2 22 //// 23 //// 24 //// 25 ////

26 1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless otherwise noted. 27

2 Because oral argument would not be of material assistance, the Court ordered this matter 28 submitted on the briefs. E.D. Cal. Local Rule 230(g). 1 BACKGROUND3 2 3 This lawsuit seeks redress for injuries sustained by Plaintiff just after midnight on 4 November 24, 2016, at the United States Post Office in Davis, California. Plaintiff 5 backed his vehicle into a parking space adjacent to a concrete wall in order to deliver a 6 load of mail to the loading dock. As he exited the driver’s side of the delivery vehicle he 7 was operating, Plaintiff had to traverse a raised concrete wall in order to access the rear 8 of his vehicle and the loading dock area. Plaintiff alleges that as he did so, he slipped on 9 a deteriorated portion of the wall. 10 On August 29, 2018, Plaintiff filed an administrative claim with the USPS for his 11 resulting injuries. Declaration of Conny Beatty (“Beatty Decl.”) ¶¶ 3, 4; see also Beatty 12 Decl., Ex. A. Less than six months later, and at a point when the administrative claim 13 was still pending, Plaintiff filed the present suit against the USPS under the Federal Tort 14 Claims Act, 28 U.S.C. §§ 2671, et seq. (“FTCA”) on November 21, 2018. See ECF No. 15 1. He then filed a First Amended Complaint (“FAC”), also against the USPS, later that 16 same day (ECF No. 4). While both Plaintiff’s Original Complaint and the FAC allege his 17 lawsuit is brought under the auspices of the FTCA, neither version contains any 18 allegations attesting to Plaintiff’s compliance with FTCA claims presentation 19 requirements prior to bringing suit. 20 Plaintiff’s administrative claim with the USPS was not concluded until June 13, 21 2019, when the USPS sent a certified letter to Plaintiff denying it. Decl. of Conny Beatty, 22 ECF 7-2, ¶¶ 3, 5; see also Beatty Decl., Ex. B. Plaintiff then filed the operative Second 23 Amended Complaint (“SAC”) on December 13, 2019. ECF No. 5. While the SAC was 24 filed within the operative six-month period for filing a claim following disposition of the 25 requisite administrative proceedings, and although the SAC substitutes the United 26 States as Plaintiff instead of the USPS, like its predecessors it contains no reference to 27 3 The allegations contained in this section are drawn, sometimes verbatim, from Plaintiff’s 28 averments as set forth in the Second Amended Complaint. ECF No. 5. 1 any exhaustion of Plaintiff’s administrative remedies under the FTCA before bringing 2 suit. A summons for the United States was issued on December 17, 2019, after the filing 3 of the SAC. ECF No. 6. The instant motion to dismiss filed thereafter on February 13, 4 2020. ECF Nos. 6, 7. 5 The SAC alleges three causes of action against the government sounding in 6 negligence. First, Plaintiff claims that the United States negligently designed and built 7 the parking lot in such a way as to force individuals to walk along the concrete wall. 8 SAC, ¶¶ 14-20. Second, he claims that the United States failed to maintain both the 9 parking lot and the wall. Id. at ¶¶ 21-28. Third, he contends that the United States was 10 negligent in the hiring, training, supervision, and retention of its employees. Id. at ¶¶ 29- 11 35. 12 In now moving to dismiss, the government claims that Plaintiff’s lawsuit, as 13 instituted on November 21, 2018, runs afoul of the provisions of the FTCA since 14 Plaintiff’s administrative claim remained pending at that point. In opposition, Plaintiff 15 alleges that his original complaint was filed because he “was under the false impression 16 that the USPS had determined it had no liability for Plaintiff’s injuries and therefore had 17 denied the claim, in its entirety, prior to the filing of the instant action.” Pl.’s Opp., ECF 18 No. 9, 1:25-27. According to Plaintiff, however, once he received the June 13, 2019, 19 formal denial, he filed an amended pleading, against the United States alone, within the 20 required time period. While Plaintiff claims to have recognized that filing an entirely new 21 lawsuit after said denial would obviate any jurisdictional concern, he nonetheless 22 concluded that filing an additional action based on the same incident “would cause an 23 additional burden on the Court until such time as Plaintiff’s initial case was dismissed.” 24 Id. at 2:18-20. Despite ostensibly amending his complaint within the requisite six-month 25 period and naming the United States as a defendant, however, as indicated above 26 Plaintiff’s SAC still fails to allege compliance with the FTCA’s administrative 27 requirements in any way. 28 //// 1 STANDARD 2 3 Federal courts are courts of limited jurisdiction, and are presumptively without 4 jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 5 377 (1994). The burden of establishing the contrary rests upon the party asserting 6 jurisdiction. Id. Because subject matter jurisdiction involves a court’s power to hear a 7 case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 8 (2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at 9 any point during the litigation, through a motion to dismiss pursuant to Federal Rule of 10 Civil Procedure 12(b)(1). Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); see also Int’l 11 Union of Operating Eng’rs v. Cnty. of Plumas, 559 F.3d 1041, 1043-44 (9th Cir. 2009). 12 Lack of subject matter jurisdiction may also be raised by the district court sua sponte. 13 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Indeed, “courts have an 14 independent obligation to determine whether subject matter jurisdiction exists, even in 15 the absence of a challenge from any party.” Id.; see Fed. R. Civ. P. 12(h)(3) (requiring 16 the court to dismiss the action if subject matter jurisdiction is lacking). 17 There are two types of motions to dismiss for lack of subject matter jurisdiction: a 18 facial attack, and a factual attack. Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 19 594 F.2d 730, 733 (9th Cir. 1979). Thus, a party may either make an attack on the 20 allegations of jurisdiction contained in the nonmoving party’s complaint, or may 21 challenge the existence of subject matter jurisdiction in fact, despite the formal 22 sufficiency of the pleadings. Id. 23 When a party makes a facial attack on a complaint, the attack is unaccompanied 24 by supporting evidence, and it challenges jurisdiction based solely on the pleadings. 25 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). If the motion to 26 dismiss constitutes a facial attack, the Court must consider the factual allegations of the 27 complaint to be true, and determine whether they establish subject matter jurisdiction. 28 Savage v. Glendale High Union Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 1 2003). In the case of a facial attack, the motion to dismiss is granted only if the 2 nonmoving party fails to allege an element necessary for subject matter jurisdiction. Id. 3 However, in the case of a facial attack, district courts “may review evidence beyond the 4 complaint without converting the motion to dismiss into a motion for summary judgment.” 5 Safe Air for Everyone, 373 F.3d at 1039. 6 In the case of a factual attack, “no presumptive truthfulness attaches to plaintiff’s 7 allegations.” Thornhill, 594 F.2d at 733 (internal citation omitted). The party opposing 8 the motion has the burden of proving that subject matter jurisdiction does exist, and must 9 present any necessary evidence to satisfy this burden. St. Clair v. City of Chico, 10 880 F.2d 199, 201 (9th Cir. 1989). If the plaintiff’s allegations of jurisdictional facts are 11 challenged by the adversary in the appropriate manner, the plaintiff cannot rest on the 12 mere assertion that factual issues may exist. Trentacosta v. Frontier Pac. Aircraft Ind., 13 Inc., 813 F.2d 1553, 1558 (9th Cir. 1987) (quoting Exch. Nat’l Bank of Chi. v. Touche 14 Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). Furthermore, the district court may 15 review any evidence necessary, including affidavits and testimony, in order to determine 16 whether subject matter jurisdiction exists. McCarthy v. United States, 850 F.2d 558, 560 17 (9th Cir. 1988); Thornhill, 594 F.2d at 733. If the nonmoving party fails to meet its 18 burden and the court determines that it lacks subject matter jurisdiction, the court must 19 dismiss the action. Fed. R. Civ. P. 12(h)(3). 20 21 ANALYSIS 22 23 The FTCA “vests the federal district courts with exclusive jurisdiction over suits 24 arising from the negligence of a Government employee,” and in so doing “waives the 25 sovereign immunity of the United States for actions in tort.” Jerves v. United States, 26 966 F.2d 517, 518 (9th Cir. 1992). The FTCA “provides that ‘an action shall not be 27 instituted upon a claim against the United States for money damages’ unless the 28 claimant has first exhausted his administrative remedies.’” McNeil v. United States, 1 508 U.S. 106, 107 (1993) (quoting 28 U.S.C. § 2675(a)). The statute mandates that 2 “[a]n action shall not be instituted upon [such] a claim . . . unless the claimant shall have 3 first presented the claim to the appropriate Federal agency and his claim shall have 4 been finally denied by the agency[.]” 28 U.S.C. § 2675(a). This provision defines a final 5 denial by an agency to be a letter sent by “certified or registered mail,” or, alternatively, a 6 “deemed” denial based on the agency’s failure to dispose of the administrative claim 7 after six months. Id. 8 A claimant has six months from the denial of his or her claim by the administrative 9 agency to file an action in federal court, or, if the agency fails to make a final disposition, 10 six months from the time the claim is filed. See 28 U.S.C. § 2675(a); 28 U.S.C. 11 § 2401(b). In the present case, this means that Plaintiff had to wait until after January 12 13, 2019, when the USPS issued its final denial, to file suit, and had six months 13 thereafter to timely do so. Moreover, even if no denial had been forthcoming, under the 14 statute Plaintiff’s claim would not have been “deemed” denied until six months after it 15 was presented on August 29, 2018, and consequently Plaintiff could not have filed suit 16 under that scenario until even later, in early March of 2019. The requirement of 17 administrative exhaustion in this regard is jurisdictional and cannot be waived. See 18 Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). 19 In McNeil, a claimant sued the United States Public Health Service in federal 20 court before submitting any tort claim for his injury to the government under the FTCA. 21 The Supreme Court rejected any claim that the jurisdictional prerequisites of the FTCA 22 could be relaxed under certain circumstances, reasoning that “[t]he most natural reading 23 of [28 U.S.C. § 2675(a)] indicates that Congress intended to require complete 24 exhaustion of Executive remedies before invocation of the judicial process.” 508 U.S. at 25 112. Thus, the McNeil court held that courts lack subject matter jurisdiction and must 26 dismiss FTCA actions against the United States which are instituted before those 27 requisite administrative actions have occurred. Id. It reasoned that premature FTCA 28 /// 1 filings burden the judicial system as well as the Department of Justice, which must 2 assume the defense in such actions. Id. 3 Relying on McNeil, the government here argues that Plaintiff’s lawsuit was 4 premature. The Ninth Circuit, in the wake of McNeil, has dismissed complaints against 5 the government prematurely filed in state court prior to exhaustion of administrative 6 remedies. See Jerves v. United States, 966 F.2d at 519 (requiring strict adherence to 7 § 2675(a) and dismissing case where plaintiff had filed in district court after the FTCA 8 claim had been submitted to federal agency but before final denial of her claim was 9 received and before six-month period had elapsed); Spawr v. United States, 796 F.2d 10 279, 280 (9th Cir. 1986) (explaining that the requirement in 28 U.S.C. § 2675(a) that a 11 suit may not be instituted against the United States unless it is first presented to the 12 appropriate federal agency and either finally denied or permitted to languish for six 13 months without resolution “is jurisdictional in nature and may not be waived”). 14 Courts have also repeatedly rejected arguments that any defect in this regard can 15 be rectified through amendment, as Plaintiff argues here. The Supreme Court, in 16 McNeil, unequivocally found that exhaustion must occur “before invocation of [any] 17 judicial process.” McNeil, 508 U.S. at 112. Subsequent decisions in this district have 18 explicitly extended McNeil’s reasoning in this regard to amendment. See Sparrow v. 19 U.S. Postal Serv., 825 F. Supp. 252, 254 (E.D. Cal. 1993) (“To permit the premature 20 filing of an FTCA action to be cured by the filing of an amended complaint upon denial of 21 the administrative claim would be inconsistent with both McNeil and the rationale behind 22 the jurisdictional prerequisite mandated by the FTCA . . . .”); see also Yearby v. 23 California Dep’t of Corrections, No. 2:07-cv-02800 JAM KJN P, 2010 WL 2880180, at *7 24 (E.D. Cal. July 21, 2010) (citing cases that “uniformly hold that a federal tort claim must 25 be both presented and denied before a plaintiff institutes suit by filing his initial 26 complaint, and that an amended complaint will not be construed as ‘instituting’ an action 27 within the meaning of § 2675”). 28 /// 1 As indicated above, whether by way of formal denial or in the event the USPS 2 took no action in response to Plaintiff’s administrative claim, the earliest Plaintiff could 3 have filed this lawsuit was January 13, 2019. Because Plaintiff’s action was in fact 4 commenced on November 21, 2018, it was filed nearly three months before that time 5 and must be rejected as premature, despite any later amendment. 6 In opposition to the government’s Motion to Dismiss, Plaintiff argues that the 7 Court should “deem Plaintiff’s action against the United States timely” for essentially two 8 reasons. First, as indicated above, he contends that he anticipated that the USPS would 9 deny his claim and thus believed that the USPS had reached this determination prior to 10 filing the complaint. Pl.’s Opp., ECF No. 9, 1:25-27. That contention is unpersuasive 11 under the circumstances presently known to the Court. “The fact that plaintiff believes 12 he knew what the response to the tort claim would be does not excuse compliance with 13 the exhaustion requirements of the FTCA.” Webster v. United States, 2005 WL 14 3031154, at *2 (E.D. Cal. Nov. 8, 2005). Moreover, although Plaintiff claims that he was 15 under the mistaken belief that the USPS had actually denied his claim, he fails to 16 substantiate that assertion with any evidence. 17 As to Plaintiff’s second argument, for the reasons already stated, a plaintiff cannot 18 cure his failure to exhaust by later amending his complaint. Nor does the fact that 19 Plaintiff filed an amended complaint naming the United States as a defendant in lieu of 20 the USPS change the result. See Gaerman v. F.B.I., 2003 WL 23537963, at *2 (D. Or. 21 Sept. 29, 2003) (substituting United States as party but dismissing because a premature 22 complaint cannot be cured by filing an amended complaint). 23 The government asks the Court to not only dismiss the case, but to do so with 24 prejudice, reasoning that if Plaintiff files a new complaint, the six-month limitation period 25 for filing suit, as set forth in 28 U.S.C. § 2401(b), will already have run. The Court 26 declines to do so. Plaintiff’s opposition, as set forth above, raises the question of 27 whether the USPS may have taken some action causing him to believe, albeit 28 mistakenly, that the agency had already denied Plaintiff’s FTCA claim before it actually wOASe 2: £0 VIMEO Ne MUI PO ee OY VI

1 | did so. If Plaintiff can marshal sufficient facts supporting that contention, the Court 2 | cannot rule out the possibility that a new lawsuit may relate back to the filing of this 3 | action and thereby be deemed timely. 4 5 CONCLUSION 6 7 For all the foregoing reasons, the Motion to Dismiss filed on behalf of the United 8 | States for lack of subject matter jurisdiction under Rule 12(b)(1) (ECF No. 7) is 9 | GRANTED. Plaintiff's lawsuit is accordingly DISMISSED, without prejudice. The Clerk 10 || of Court is directed to close the file. 11 IT |S SO ORDERED. 12 | Dated: May 19, 2020

14 MORRISON C. ENGLAND, J

UNITED STATES DISTRI

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