Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lucero v. United States

United States District Court, D. New Mexico

July 3, 2019



         THIS MATTER comes before the Court on Plaintiffs' Motion for Summary Judgment on Issue of Liability and Memorandum in Support Thereof, Doc. 67, filed January 29, 2019 and fully briefed March 18, 2019. Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P 73(b), the parties have consented to have me serving as the presiding judge and entering final judgment. Docs. 3, 13, 14. Having considered the parties' arguments and all relevant authority, the Court grants in part Plaintiffs' Motion for Summary Judgment and dismisses certain claims for lack of subject-matter jurisdiction.


         This case arises from an automobile accident that occurred in Gallup, New Mexico on December 28, 2015. Undisputed Material Fact (“UMF”) 38, 40. On that day, Plaintiff Theodore Lucero proceeded through a green light to make a left-hand turn when Defendant Patricia Henry, driving a Navajo Nation police vehicle, ran a red light and struck Mr. Lucero's vehicle. UMF 41, 42.

         Plaintiff Lucero filed suit in federal Court on June 9, 2017 against only the United States of America. Doc. 1. He later amended his Complaint to add Patricia Henry as a Defendant. Doc. 37. His wife, Valerie Steward, thereafter joined the lawsuit as a Plaintiff. Doc. 49. The operative Complaint alleges seven counts: negligence (Count I) and negligence per se (Count II) against both Defendants; negligent training and supervision (Count III), vicarious liability (Count IV), and negligent retention (Count V) against Defendant United States; and property damage (Count VI) and loss of consortium (Count VII, but labeled as Count VIII) which are not specifically brought against either Defendant. See Doc. 49. Plaintiffs now moves for Summary Judgment on the issue of liability, asserting that Defendant Henry, a federal employee with the Navajo Nation who was working in the course and scope of her duties at the time of the accident, drove negligently. Doc. 67 at 2. In response, Defendant United States argues that the Court should deny summary judgment and dismiss certain claims for lack of subject matter jurisdiction. Doc. 71 at 1. Defendant Henry did not respond to the Motion for Summary Judgment.


         A. Summary Judgment

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, a dispute is genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way, ” and it is material “if under the substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In reviewing a motion for summary judgment, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. S.E.C. v. Thompson, 732 F.3d 1151, 1156-57 (10th Cir. 2013) (internal quotation marks omitted). Initially, the party seeking summary judgment has the burden of showing that there is no genuine dispute as to any material fact. See Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the non-moving party must show that genuine issues remain for trial. Id.

         B. Subject Matter Jurisdiction

         The Court has a duty to determine whether subject matter jurisdiction exists, whether the parties raise the issue or not. See Turk v. United Servs. Auto. Ass'n, 859 F.2d 842, 844 (10th Cir. 1988). “Subject matter jurisdiction must be decided prior to a resolution on the merits”, Pueblo of Zuni v. United States, 467 F.Supp.2d 1099, 1105 (D.N.M. 2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999)), and a “lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction or stipulation”, Turk, 859 F.2d at 844. To resolve disputed jurisdictional facts, a court may consider affidavits or other documents. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).


         A. The Court lacks subject matter jurisdiction over Plaintiff Lucero's claims against the United States because Plaintiff Lucero prematurely filed his lawsuit.

         Before addressing Plaintiffs' Summary Judgment arguments, the Court must first determine whether it has jurisdiction to consider those arguments. Defendant United States asserts that the Court does not. It argues that Plaintiff Lucero failed to exhaust his administrative remedies under the Federal Tort Claims Act (“FTCA”) and the Court should therefore dismiss his claims against the United States. Specifically, Defendant United States contends that the Court lacks subject matter jurisdiction to consider Plaintiff Lucero's claims because he filed the present lawsuit prematurely -- “before the Agency's final action [on his request for reconsideration] and before the claim could be deemed denied.” Doc. 71 at 2.

         The United States, as a sovereign, “is immune from suit except as it consents to be sued” and “the terms of its consent to be sued in any court define the court's jurisdiction to entertain the action.” Three-M Enterprises, Inc. v. United States, 548 F.2d 293, 294-95 (10th Cir. 1977) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). One such consent to be sued is found in the FTCA. Id. (citing 28 U.S.C. § 1346(b)). Under the FTCA, the United States “shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . .” 28 U.S.C. § 2674.

         However, before an individual can bring a lawsuit against the United States under the FTCA he or she must exhaust administrative remedies by presenting the claim to the appropriate federal agency and allowing the agency to finally deny the claim. 28 U.S.C. § 2675(a); see also Three-M Enterprises, Inc., 548 F.2d at 294-95. Once an individual presents a claim, the agency has six months to issue a final decision, after which the claimant can deem the claim finally denied for purposes of bringing a lawsuit. 28 U.S.C. § 2675(a). In other words, Section 2675(a) provides a date before which a lawsuit may not be filed: either six months from when the claim is presented to the agency or the date at which the agency issues a final decision, whichever is earlier. See Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015). If the claimant is unsatisfied with the agency's final decision, instead of filing a lawsuit, he or she may file a request for reconsideration within six months of the agency's decision. 28 C.F.R. § 14.9(b). The agency will then have six months to issue another final decision and, absent an earlier decision on the request for reconsideration, the claimant cannot file a lawsuit until that six months has expired. 28 C.F.R. § 14.9(b).

         This exhaustion requirement is jurisdictional and cannot be waived. Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016); see also Barnes, 776 F.3d at 1139 (“The administrative-exhaustion requirement applicable to FTCA claims ‘bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.'” (citing McNeil v. United States, 508 U.S. 106, 113 (1993))); Lurch v. United States, 719 F.2d 333, 335 (10th Cir. 1983) (“Bringing an administrative claim is a prerequisite before suit can be brought in United State District Court under the FTCA. The administrative claim must be denied by the agency either in writing or by failure to make a final disposition within six months of filing before claimant can sue.” (citing 28 U.S.C. § 2675)). Plaintiffs bear the burden to prove they complied with the FTCA exhaustion requirements. Wagner v. Jones, No. CV-13-771 CG/WPL, 2014 WL 12789015, at *7 (D.N.M. Aug. 5, 2014).

         The accident at issue in this case occurred on December 28, 2015. UMF 38, 42. On March 18, 2016, Plaintiff Lucero filed a tort claim with the Bureau of Indian Affairs on the Standard Form 95. UMF E. BIA denied his claim on September 21, 2016. UMF G. On December 12, 2016 Plaintiff Lucero submitted a request for reconsideration and an amended tort claim, UMF H, which the agency received on December 22, 2016, UMF J. On June 9, 2017, before receiving a final decision on his request for reconsideration from the agency, Plaintiff Lucero filed suit. Doc. 1. The agency then denied his request for reconsideration on September 13, 2017. UMF J. On February 27, 2018, Plaintiff Lucero filed an amended complaint, adding Patricia Henry as a Defendant. Doc. 37; UMF M. On March 9, 2018, the Court stayed the case while administrative claims made by Plaintiff Lucero's family were pending. Doc. 39; UMF N. After receiving the final agency denial on Valerie Steward's claim, Plaintiff filed a second amended complaint on September 13, 2018, in which Ms. Steward joined the lawsuit as a Plaintiff. Doc. 49, UMF l, O.

         The parties do not dispute that the FTCA prevents a claimant from obtaining jurisdiction in federal court before he has exhausted his administrative remedies. Instead, they dispute whether Plaintiff Lucero met all the exhaustion requirements; specifically, whether he waited the required six months after submitting his request for reconsideration to deem the claim denied and file a lawsuit. Defendant United States argues that Plaintiff Lucero failed to meet this requirement because he filed suit on June 9, 2017, which is not six months after December 12, 2016, the date he submitted his request for reconsideration. Plaintiff Lucero, on the other hand, offers three different way to calculate six months: “He could have calculated the deadline as six 30-day months x six months (180 days), six calendar months (182 days) or six four-week months (168 days).” Doc. 75 at 7. He asserts that “[o]ut of an abundance of caution, Plaintiff Lucero chose the first, making the deadline for the Agency to act June 8, 2017. Having waited the statutory period required to deem the claim for reconsideration denied, he filed his lawsuit on June 9, 2017.” Doc. 75 at 7.

         Neither the statute nor the regulation define how to calculate six months. However, the plain language of the statute and the regulation lends itself to a reading that six months means six calendar months. See Nat'l Ass'n of Manufactures v. Dep't of Def., 138 S.Ct. 617, 631 (2018) (“Because the plain language of [the statute] is unambiguous, our inquiry begins with the statutory text, and ends there as well.” (quotations omitted)). Further, while the parties have not cited to and the Court is unaware of cases that interpret Section 2675's six-month provision, Tenth Circuit precedent interpreting an analogous six-month statute of limitation found in 28 U.S.C. § 2401(b) demonstrates that “six months” means six calendar months rather than 180 days. See Esposito v. United States, 368 F.3d 1271, 1272 (10th Cir. 2004) (when claim denied on August 23, 2001 and complaint filed on February 22, 2002 (183 days later), complaint was filed “the day before the six-month deadline for filing suit . . . expired”); Benge v. United States, 17 F.3d 1286, 1287-88 (10th Cir. 1994) (when claims denied on June 24, 1991 and complaint filed on December 23, 1991 (182 days later), complaint was filed “only two days before the expiration of the initial six month limitations period”); see also Trujillo v. United States, No. CV 05-616 RHS/LAM, 2006 WL 8444566, at *3 (D.N.M. Jan. 23, 2006) (statute requiring suit to be filed within six months of the agency's denial of a claim means the statute of limitation “runs from the day after denial of a plaintiff's administrative claims is mailed through the day before that same calendar date six months later.”). Just as these decisions interpreted “six months” to mean six calendar months for purposes of Section 2401, the Court now interprets “six months” to mean six calendar months for purposes of Section 2675. Plaintiff Lucero filed his request for reconsideration on December 12, 2016. Six calendar months later is June 12, 2017. Plaintiff Lucero filed his lawsuit on June 9, 2017. Because Plaintiff Lucero filed his lawsuit before his request for reconsideration could be deemed denied, the Court lacks subject matter jurisdiction over his lawsuit.

         Moreover, “[u]nder the FTCA, ‘a claim shall be deemed to have been presented when a Federal agency receives from a claimant [his administrative notice of claim.]'” Moya v. United States, 35 F.3d 501, 504 (10th Cir. 1994) (citing 28 C.F.R. § 14.2(a)) (emphasis added). “Thus, a request for reconsideration is not presented to an agency until it is received by the agency. Mailing of a request for reconsideration is insufficient to satisfy the presentment requirement.” Id. Here, while Plaintiff Lucero submitted his request for reconsideration on December 12, 2016, UMF H, BIA did not receive it until December 22, 2016, UMF J. One-hundred eighty days after December 22, 2017 is June 20, 2018. Thus, even if the Court were to accept Plaintiff Lucero's assertion that “six months” means 180 days rather than six calendar months, his June 9, 2017 lawsuit came eleven days too soon.

         Nonetheless, Plaintiff Lucero asserts: (1) BIA has now issued a final denial on the request for reconsideration (issued September 13, 2017, UMF J); (2) Defendant United States did not participate in the lawsuit until the agency issued its denial letter; and (3) “the Agency had ample and substantial time to review and consider these claims.” Doc. 75 at 8. Therefore, Plaintiff Lucero argues that Defendant United States has suffered no prejudice and the Court should not dismiss his claims. Doc. 75 at 6, 8. This appeal to equity is reminiscent of the argument the Supreme Court rejected in McNeil. 508 U.S. 106, 111-12 (plaintiff argued that his lawsuit should be considered “instituted” upon formal denial of his administrative claim because “[a]s long as no substantial progress has been made in the litigation by the time the claimant has exhausted his administrative remedies, the federal agency will have had a fair opportunity to investigate and possibly settle the claim before the parties must assume the burden of costly and time-consuming litigation.”).

         The Supreme Court granted certiorari in McNeil to resolve the Circuit split over whether “a prematurely filed FTCA action [can] proceed if no substantial progress has taken place in the litigation before the administrative remedies are exhausted.” Id. at 110. The Supreme Court answered this question in the negative, rejecting the idea that a prematurely-filed lawsuit can simply be held in waiting for the six-month statutory period to run. Id. at 112 (“The most natural reading of the [FTCA] indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process.”) Instead, the Court held that “[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” Id. at 113; see also Haceesa v. United States, 309 F.3d 722, 733 (10th Cir. 2002) (“A district court must dismiss a claim under the FTCA if it was filed before the claim was denied by the federal agency (whether expressly or implicitly).”); Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990) (“Since the district court had no jurisdiction at the time the action was filed, it could not obtain jurisdiction by simply not acting on the motion to dismiss until the requisite period had expired.”); Sowers v. United States, No. 1:17CV1490 (TSE/IDD), 2018 WL 6709509, at *4 (E.D. Va. Dec. 20, 2018) (“Neither the expiration of six months since the administrative claim was filed nor the [agency's] denial of the claim after the filing of the instant complaint can cure that jurisdictional defect.”).

         In reaching its decision, the Supreme Court addressed the equities of this seemingly harsh result. First, the Supreme Court noted that the text of Section 2675 is unambiguous and that it is not “free to rewrite the statutory text.” McNeil, 508 U.S. at 111. Second, the Court pointed out:

Every premature filing of an action under the FTCA imposes some burden on the judicial system and on the Department of Justice which must assume the defense of such actions. Although the burden may be slight in an individual case, the statute governs the processing of a vast multitude of claims. The interest in orderly administration of this body ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.