United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION TO DISMISS, OR IN THE ALTERNATIVE MOTION FOR PARTIAL
SUMMARY JUDGMENT, ON SUBJECT MATTER JURISDICTION
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Plaintiff's
Motion to Dismiss, or in the Alternative Motion for Partial
Summary Judgment, on Subject Matter Jurisdiction Defense.
[Doc. 48, filed December 12, 2018]. Upon
reviewing the parties' briefs and the applicable law, the
motion is DENIED.
a slip-and-fall case arising under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346, 2671
et seq., wherein Plaintiff John Stevens seeks damages arising
out of an incident occurring on October 19, 2015, at the
United States Post Office located at 110 Montaño Road
in Albuquerque, New Mexico.
Court first notes the procedural history. A bench trial was
set for February 4, 2019. [Doc. 40]. Under the Court's
scheduling order governing this case, the deadline for
pretrial motions was July 12, 2018. No. motions were filed by
either side. Five months after the expiration of the
dispositive motions' deadline, Plaintiff filed the
present motion. This was done in order to address a question
that any federal court must answer and that any party that
does not want the court to exercise jurisdiction must raise
in order to meet its duty of candor to the court: whether the
Court has jurisdiction under the FTCA.
the fast-approaching trial date, and the late motion, the
Court issued an Order to Show Cause, [Doc. 49], which was
later vacated. In the Order, the Court noted that it would
have expected the Government to raise an administrative
exhaustion issue early in the case, before general discovery
had taken place and sometime during the year and a half this
case had been sitting on the Court's docket. Thus, the
Government's motion is long overdue. Also, while the
parties had stipulated to federal jurisdiction, [Doc. 11 (Jt.
Stat. Rep't) at 2; and [Doc. 47 (Pretrial Order) at 2],
the parties' agreement does not confer jurisdiction on
Court will take up the jurisdictional issue. Plaintiff filed
two administrative claims, also known as SF95 forms, with the
United States Postal Service. [Doc. 59-1; Doc. 48-3]. The
second administrative claim amended the first administrative
claim. The first administrative claim stated: “Mr.
Stevens was a visitor at the Post Office when the automatic
door closed on him causing him injuries.” [Doc. 59-1].
It further stated: “Mr. Stevens suffered trauma from
head trauma, fractured clavicle, torn ligaments and
amended administrative claim stated: “Mr. Stevens was a
visitor at the postal facility at 110 Monta[ñ]o Road
NE in Albuquerque, New Mexico. While he was exiting the
facility, the automatic door closed on him, causing to fall
and hit the concrete with his head and left shoulder.”
[Doc. 48-3]. It further alleged:
The fall cause a left clavicle fracture, acromioclavicular
joint separation, head injury, scalp laceration and scalp
contusion. Mr. Stevens suffered headaches, vertigo and left
shoulder pain. His arm was immobilized in a sling. He treated
the injuries with physical therapy and pain medication. He
developed scapular winging, meaning his shoulder bone struck
out of his back in an abnormal position. The last examination
on June 30, 2016 indicated rotator cuff injury. His left
shoulder pain still reached 8/10 with activity.
[Id.]. It finally claimed damage of $7.5 million
then received a letter from the federal government stating
that the administrative claims were denied, and consequently,
Plaintiff filed the present lawsuit alleging:
• On or about October 19, 2015, Plaintiff was a visitor
at the postal facility located at 110 Montaño Road NE,
in Albuquerque, New Mexico.
• Plaintiff was exiting the facility, through the
automatic handicap door, when it abruptly and forcefully
closed on him, causing him to fall and hit the concrete with
his head and left shoulder.
• Plaintiff suffered a clavicle fracture,
acromioclavicular joint separation, head injury, scalp