Mahmud v. Thompson et al, No. 1:2017cv04774 - Document 8 (E.D.N.Y. 2018)
Court Description: ORDER granting 4 Motion to Dismiss for Lack of Jurisdiction -- For the reasons set forth in the ATTACHED WRITTEN DECISION AND ORDER, Defendants' motion to dismiss the complaint for lack of subject matter jurisdiction is granted. Accordingly, the Complaint is dismissed with prejudice and the Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 6/7/2018. (Irizarry, Dora)
Download PDF
<![CDATA[
es removed under 28 U.S.C. § 1442(a)(1), which the government invokes here. Moreland, 93 F. Supp.2d at 354. As explained below, because Plaintiff failed to satisfy the FTCA’s requirements prior to filing in state court, the state court lacked jurisdiction; consequently, this Court also lacks jurisdiction. The FTCA, which applies to tort claims arising from the activities of federal employees, is the exclusive remedy for claims of negligence brought against employees of the United States. 28 4 U.S.C. § 2679(b)(1). Under the FTCA, the government waives sovereign immunity in certain cases, including claims for negligence against USPS employees acting in the course of their employment. Dolan v. United States Postal Serv., 546 U.S. 481, 486-91 (2006). In a suit brought under the FTCA where the United States has waived immunity, the United States is liable to the same extent a private individual would be in the same circumstances. Id. Any waiver of sovereign immunity must be strictly construed. Long Island Radio Co. v. N.L.R.B., 841 F.2d 474, 477 (2d Cir. 1988). The United States’ waiver of sovereign immunity under the FTCA includes a requirement that, before a lawsuit is filed, an administrative claim must first be filed with the appropriate federal agency within two years of the accrual of the cause of action. 28 U.S.C. § 2401(b). When a plaintiff fails to exhaust his or her administrative remedies prior to filing a suit under the FTCA, the United States does not waive its sovereign immunity. 28 U.S.C. § 2675(a). 2 If sovereign immunity is not waived, a court does not have subject matter jurisdiction over the FTCA claim. Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) (emphasis omitted) (quoting 28 U.S.C. § 2675(a)) (“[T]he FTCA provides . . . that ‘[a]n action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the claim to the appropriate Federal agency . . . .’”); Celestine, 403 F.3d at 82-84 (extending this requirement to FTCA claims initially filed in state court). Here, Plaintiff did not file an administrative claim. See Declaration of Kimberly A. Herbst (“Herbst Decl.”), Dkt. Entry No. 6, at ¶¶ 4-6 (noting that Plaintiff had not filed an administrative 2 The FTCA’s administrative exhaustion requirement is jurisdictional and cannot be waived. Gay v. Terrell, 2013 WL 5437045, at *9-10 (E.D.N.Y. Sept. 27, 2013) (citing Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005)) (“A claim of failure to exhaust administrative remedies under the FTCA is thus properly raised under FRCP 12(b)(1).”); See also Celestine, 403 F.3d at 82 (“This requirement is jurisdictional and cannot be waived.”). 5 claim with the USPS as of August 22, 2017). Therefore, the United States did not waive its sovereign immunity, and the state court in which Plaintiff filed his claim lacked subject matter jurisdiction. Millares Guiraldes de Tineo, 137 F.3d at 719-20 (affirming dismissal where no plaintiff failed to file an administrative claim). As a result, under the Derivative Jurisdiction Doctrine, this Court also lacks subject matter jurisdiction. Barnaby v. Quintos is instructive in this regard. See 410 F. Supp.2d 142, 143 (S.D.N.Y. 2005). In Barnaby, a plaintiff failed to exhaust his administrative remedies prior to filing a suit in state court under the FTCA. Id. The district court dismissed the plaintiff’s suit upon removal under the Derivative Jurisdiction Doctrine. Id. at 143, 147. Since the state court in which the plaintiff filed his suit lacked subject matter jurisdiction, the district court acquired no subject matter jurisdiction upon removal. Id.; See also Lombardi v. United States Postal Serv., 2016 WL 1604492, at *2 (W.D.N.Y. April 22, 2016) (“[Since] Plaintiffs failed to present an administrative claim to Defendant Postal Service for their alleged damages[,] . . . the small-claims court lacked subject-matter jurisdiction over Plaintiffs’ claims, and [the District] Court lacks derivative jurisdiction.”). Similarly, here, because the state court in which Plaintiff originally filed his claim lacked subject matter jurisdiction, this Court did not obtain subject matter jurisdiction upon removal. Accordingly, Defendants’ motion is granted and Plaintiff’s claim is dismissed. B. Statute of Limitations While the Court finds that it lacks subject matter jurisdiction, it briefly addresses the timeliness of Plaintiff’s suit. See Mem. at 4, 7 (arguing claims are untimely). As mentioned above, filing an administrative claim is a jurisdictional prerequisite to bringing suit. Gay, 2013 WL 5437045, at *9-10 (citing Celestine, 403 F.3d at 82). However, an FTCA claimant’s failure to file an administrative claim before bringing suit is curable if the plaintiff files his complaint within two years of the cause of action accruing. Valdez v. United States, 518 F.3d 173, 176-77 (2d Cir. 6 2008) (“The failure . . . to file an administrative claim before the initial complaint was filed in state court was excusable if that complaint was filed within two years after the cause of action accrued.”). Courts have held that, if the suit was filed within the two-year accrual period but no administrative claim was been filed, it is “appropriate to dismiss the complaint after removal to the federal court,” and grant plaintiff “sixty days from the date of dismissal to file an administrative claim and six months from the denial of [the] claim to recommence the lawsuit.” Id. (citing 28 U.S.C. § 2679(d)(5)). The untimeliness of Plaintiff’s lawsuit precludes the Court from granting him the opportunity to file his administrative claim. Plaintiff’s claim accrued on May 23, 2014, he filed this action on May 22, 2017, and, as of August 22, 2017, Plaintiff had not filed an administrative claim. See Notice of Removal at ¶¶ 1-3; See Herbst Decl. at ¶¶ 4-6. Accordingly, since Plaintiff failed to file an administrative claim within two years from the accrual of his cause of action, dismissal with leave to cure is not appropriate. Valdez, 518 F.3d at 176-77 (citing 28 U.S.C. § 2679(d)(5)). 3 3 While equitable tolling applies in some situations, this is not one of them. The prerequisites to filing suit under the FTCA, including exhaustion of administrative remedies, are jurisdictional, and therefore not subject to equitable tolling. Mohamed v. FBI, 2015 WL 6437369, at *6 (S.D.N.Y. Oct. 21, 2015) (citing United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015) (holding that the Supreme Court had “not disturbed the well-established principle” that the FTCA’s administrative exhaustion requirement is jurisdictional in nature); Celestine, 403 F.3d at 82). 7 CONCLUSION For the reasons set forth above, Defendants’ motion to dismiss the Complaint for lack of subject matter jurisdiction is granted, and the Complaint is dismissed with prejudice. SO ORDERED Dated: Brooklyn, New York June 7, 2018 /s/ DORA L. IRIZARRY Chief Judge 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
