United States District Court, N.D. Illinois
May 4, 2004.
JAMES CHRISTIDES, Plaintiff,
MARY M. ZUCKERMAN and THE UNITED STATES OF AMERICA, Defendants
The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge
MEMORANDUM OPINION AND ORDER
James Christides filed suit against Mary M. Zuckerman and the United
States alleging that he was injured when Zuckerman negligently drove her
vehicle into the lobby of a post office and struck him. The government
has moved to dismiss the complaint for failure to exhaust administrative
remedies under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2G75(a).
For the reasons set forth here, the motion is granted,
Christides claims that he was injured on August 16, 2001 when
Zuckerman, who is not affiliated with the United States Postal Service
("USPS"), negligently drove her vehicle into a post office lobby in
Niles, Illinois and struck him. (Cmplt. ¶¶ 1, 2.) He further claims that
the USPS negligently maintained its facility which, among other things,
caused a stack of boxes to fall on him during the accident, (Id. ¶ 11.)
On August 11, 2003, Christides' attorney sent a Notice of Attorney's Lien
and Claim to Donna Griffin, a USPS Tort Claims Coordinator authorized to
receive, investigate, and adjudicate administrative tort claims filed
against the USPS. (Griffin Decl. ¶ 1; PX A, Letter from Syregelas to
Griffin of 8/11/03.) That notice, which Griffin received on August 14,
2003, stated that Christides had "placed in the hands of Nicholas C.
Syregelas, as his attorney, for suit or collection, a claim, demand, or
cause of action against the [USPS] arising from injuries sustained on
your property" on August 16, 2001. (PX A, B.) The notice advised the USPS
that Christides had agreed to pay "a fee equal to one third of whatever
amount may be recovered therefrom by suit or settlement, and that we
claim a lien upon said sum, demand, or cause of action for such fee." (PX
A.) The notice further asked the USPS to forward the letter to its
insurance carrier or to contact Mr. Syregelas. (Id.)
Two days after sending that letter, on August 13, 2003, Christides
filed a negligence complaint against Zuckerman and the USPS in the
Circuit Court of Cook County, Illinois. On September 3, 2003, Mr.
Syregelas sent Griffin a Standard Form 95 Claim for Damage, Injury or
Death describing the incident on August 15, 2001 and the injuries
Christides allegedly sustained as a result, and requesting $7,580,07 in
damages. (PX C.) On September 8, 2003, the government removed Christides'
case to federal court and substituted the United States for the USPS as a
defendant pursuant to 28 U.S.C. § 2679. On October 15, 2003, Christides
sent Griffin an amended Standard Form 95 requesting damages in the amount
of $30,000 to cover pain and suffering. (PX D,)
The United States now seeks dismissal with prejudice under FED. R. Civ,
P. 12(b)(1) for failure to exhaust administrative remedies under the FTCA
within the prescribed limitations period.*fn1
The FTCA provides the exclusive remedy for "injury or loss of property,
or personal injury or death arising or resulting from the negligent or
wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment." 28 U.S.C. § 2679. An
injured party may not file an action under the FTCA "unless the claimant
shall have first presented the claim to the appropriate Federal agency
and his claim shall have been finally denied by the agency in writing and
sent by certified or registered mail." 28 U.S.C. § 2675. See also
McNeil v. United States, 508 U.S. 106, 113 (1993) ("[t]he FTCA bars
claimants from bringing suit in federal court until they have exhausted their administrative remedies"). That
administrative claim must be filed within two years after the claim
accrues or it is "forever barred." 28 U.S.C. § 2401 (b). See also Kanar
v. United States, 118 F.3d 527, 528 (7th Cir. 1997).
Federal regulations define "claim" to include four elements: (1)
written notification of an incident; (2) a claim for money damages in a
sum certain; (3) the title or legal capacity of the person signing; and
(4) evidence of that person's authority to represent the claimant.
28 C.F.R. § 14, 2(a), See also Kanar, 118 F.3d at 528, After a claim has
been filed, an injured party cannot file suit against the United States
until the appropriate federal agency has reached a final disposition of
the matter. "The failure of an agency to make final disposition of a
claim within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim for
purposes of this section." 28 U.S.C. § 2675(a).
It is undisputed that on August 14, 2003, two days before the two-year
statute of limitations expired on Christides' claim, the USPS received
his August 11, 2003 Notice of Attorney's Lien and Claim. That letter
referred generally to "injuries sustained on [USPS] property" on August
16, 2001 and indicated that Mr. Syregelas was representing Christides
with his claim. (PX A.) The notice provided no information regarding the
location or nature of the accident, nor did it state a "sum certain" in
damages. That information came by letters dated September 3 and October
15, 2003. (PX C, D.)*fn2 The question for this court is whether the
August 11, 2003 letter sufficed as a "claim" under the FTCA. If it did,
Christides' August 13, 2003 suit against the United States was merely
premature the USPS did not have six months to first dispose of the claim
and must be dismissed without prejudice. (PI. Response ¶ 13; Def, Reply, at
2.)*fn3 If, however, it did not, the case against the United States is
untimely and must be dismissed with prejudice.
The government argues that the August 11, 2003 letter did not
constitute "written notification" of an FTCA claim because it lacked "any
information regarding the nature or location of the incident" and failed
to state a "`sum certain' to compensate Christides for his injuries."
(Def. Reply, at 3.) In the government's view, the USPS first received
notice of Christides' "claim" on or about September 3, 2003, well after
the two-year statute of limitations expired, when his attorney sent the
Standard Form 95. (Id.) Christides responds that the August 11, 2003
letter did constitute a valid FTCA "claim" which he properly amended on
September 3 and October 15, 2003. (PI. Response ¶¶ 2, 4, 6, 7) (citing
28 C.F.R. § 14.2(c)) ("[a] claim presented in compliance with paragraph
(a) of this section may be amended by the claimant at any time prior to
final agency action or prior to the exercise of the claimant's option
under 28 U.S.C. § 2675(a)"). Citing Schmidt v. United States, 933 F.2d 639,
640 (8th Cir. 1991), Christides asserts that failure to comply with the
statute of limitations is "merely an affirmative defense, which the
defendant has the burden of establishing." (PI. Response ¶ 10.) He also
claims that the statute of limitations is subject to equitable tolling.
(Id. ¶ 9.)
Though not cited by either party, in this court's view, the Seventh
Circuit's decision in Kanar v. United States is most instructive on this
issue. The plaintiff in Kanar filed an administrative demand that did not
establish the attorney's authority to represent him. 118 F.3d at 528.
With three months to go in the two-year statute of limitations, the
agency asked the attorney to provide such evidence but he ignored the
request. Nine months after the statute of limitations expired, the
attorney finally submitted a signed power of attorney. Id. By then, the
agency had closed the file, "a reasonable response to the disdain of a reasonable request." Id. at
531. The Seventh Circuit held that it is "possible to litigate under the
FTCA following an administrative demand that does not comply with every
jot and tittle of the rules defining a `claim'" as long as the omissions
do not "frustrate the process of conciliation and settlement that the
administrative demand is supposed to initiate." Id. at 530, 531. The
attorney's delay in providing the power of attorney thwarted that
settlement process because the agency simply closed the file. The court
found that counsel's noncompliance with 28 C.F.R. § 14.2(a) "did not turn
out to be harmless" and affirmed dismissal of the plaintiff's suit for
lack of a good administrative claim. Id.
Following Kanar, courts in this district have held that failure to set
forth a sum certain in an administrative demand similarly warrants
dismissal under certain circumstances. In Laughlin v. Commissioner of
Patents and Trademarks, No. 98 C 535, 1999 WL 203286 (N.D. III. Mar. 31,
1999), the plaintiff claimed to have filed an administrative demand with
the Commissioner of Patents and Trademarks by petitioning for review of a
decision that an affidavit he filed to maintain a service mark was
defective. Id. at *1, 3. Because the petition did not demand any sum
certain, the court held that it did not suffice as a "claim" under the
FTCA. Id. at *3. The court apparently viewed the "sum certain"
requirement as immutable. But see Kanar, 118 F.3d at 529 ("statutory
exceptions for newly discovered evidence and intervening facts suggest
more flexibility than a sum-certain requirement tolerates").
The court in Oyesile v. United States, No. 00 C 6499, 2002 WL 22009
(N.D. III. Jan. 8, 2002) recognized greater leeway in what suffices as a
"claim" but nonetheless reached the same conclusion. In Oyesile, federal
agents entered the plaintiff's home, arrested him, and seized, among
other things, several items of jewelry. Id. at *1. After unsuccessful
efforts to get the items back pursuant to motions before the district
court hearing his case, the plaintiff filed an administrative claim with
the FBI. The government failed to respond for six months, and then rejected the claim. Id. The plaintiff sued the government and three FBI
agents alleging, among other things, claims under the FTCA, and the
defendants moved to dismiss the FTCA claims for failure to exhaust
administrative remedies. Id.
The court first noted that "[f]ailure to strictly comply with the
requirements [of 28 C.F.R. § 14.2(a)] will not foreclose litigation,
unless the failure hinders the settlement process." Id. at *3 (citing
Kanar, 118 F.3d at 530-31). The plaintiff's claim included a laundry list
of property items he sought to recover, but the FBI was "left to idly
speculate as to their value." Id. at *3, The plaintiff was represented by
counsel and knew "full well" the value of his property, yet he failed to
"even allude to a dollar figure in his claim." Id. at *5. In the court's
view, "[i]t is impossible to make a settlement offer if you have no idea
what a claimant seeks." Id. The court found the case to be "a close one,"
but held that the plaintiff's failure to include a sum certain
"undermined the settlement process" and justified dismissal of the FTCA
claims. Id. See also Ward v. United States, 1 Fed-Appx. 511, 513-14, 2001
WL 30500, at *2 (7th Cir. 2001) ("Kimberly's Standard Form 95 did not
include a sum certain, let alone any other details that might have
informed the agency of the amount of damages she sought from the
government. Given that the purpose of requiring administrative exhaustion
is to provide the government with sufficient notice to investigate the
claim and prepare for settlement negotiations, . . . Kimberly's claim
falls significantly short of that goal").
Other Courts of Appeals have similarly required strict adherence to the
"sum certain" requirement for administrative claims. In Coska v. United
States, 114 F.3d 319 (1st Cir. 1997), a pedestrian slipped and fell on
property owned by the United States Marshals Service. Id. at 320, Her
attorney sent letters to the Marshals Service and its property management
company advising them of the accident and describing her injuries.
Neither letter, however, set forth the amount of damages claimed. Id. at
320-21. The Marshals Service notified the pedestrian that she needed to
submit a claim for damages in a "sum certain" but she never complied with
the request. Id. at 321. Two and a half years later, she filed suit under the FTCA. In
affirming dismissal of the case, the First Circuit stated that "[a]
timely filed sum certain claim is a jurisdictional prerequisite for a
tort action against the federal government." Id. at 322, As the court
[t]he purpose of the sum certain requirement goes
beyond mere administrative convenience; it is to
apprise the government of its possible liability and
to provide the government with notice "sufficient to
allow it to investigate the alleged negligent episode
to determine if settlement would be in the best
interests of all,"
Id. (quoting Corte-Real v. United States, 949 F.2d 484
, 486 (1st Cir.
1991)). The letter to the Marshals Service failed to achieve that
objective because it did not include a sum certain. Id. See also Zuber
v. United States, 229 F.3d 1155 (Table), 2000 WL 1276895, at *2-3 (6th
Cir. 2000) (where none of plaintiff's letters included a request for a
specific amount of damages, her notice did not satisfy the "sum certain"
requirement for statutory notice under the FTCA).
The Fourth Circuit reached a similar conclusion in Kokotis v. United
States Postal Service, 223 F.3d 275 (4th Cir. 2000), After allegedly
being injured in a car accident with a postal service employee, Evelyn
Kokotis sent a Standard Form 95 to the USPS that did not include a sum
certain in damages. Id. at 277-78. Four months after the statute of
limitations expired but prior to final agency action, Kokotis submitted a
revised Form 95 requesting $19,000. Id. at 278. The USPS denied her claim
and she filed suit under the FTCA, The district court dismissed the case
for "failure to identify a sum certain within the two-year statute of
limitations." Id. The Fourth Circuit affirmed, noting that the sum
certain requirement "allows an agency to assess a claim's settlement
value," which purpose "is frustrated if the administrative claim does not
indicate a specific amount of money." Id. at 279. The court found it
significant that Kokotis failed to provide the sum certain within the
limitations period, and declined to view the revised Form 95 as an
amendment that related back to her earlier filing:
The regulation states that "a claim shall be deemed to
have been presented when the U.S. Postal Service
receives . . . a claim for money damages in a sum
certain . . ." 39 C.F.R. § 912.5(a) (emphasis added).
Since Kokotis' December 1995 filing did not include a sum certain, it was not "presented"
within the meaning of § 912.5(a). The regulation
further states that only a "claim presented in
compliance with [§ 912.5(a)]" can be amended before
final agency action. 39 C.F.R. § 912.5(b) (emphasis
Id. at 280. The court also declined to equitably toll the statute of
limitations because such tolling "is appropriate only where the defendant
has wrongfully deceived or misled the plaintiff in order to conceal the
existence of a cause of action." Id. (internal quotations omitted).
In this case, the August 11, 2003 letter failed to allude to any dollar
figure regarding Christides' claim, or even to set forth the nature of
the accident he suffered on August 16, 2001. He and his attorney clearly
had that information, however, because two days later on August 13,
2003, Christides filed a detailed complaint seeking in excess of $50,000
from the USPS, Several weeks after that, moreover, on September 3, 2003,
Christides filed a Standard Form 95 asking for $7,580.07 in medical
expenses, which he later amended to $30,000 to include pain and
suffering. The USPS could not have made a reasonable settlement offer
based on the August 11, 2003 letter. See Oyesile, 2002 WL 22009, at *5
([i]t is impossible to make a settlement offer if you have no idea what a
claimant seeks"). Indeed, the August 11 letter failed even to put the
USPS on notice of the type of injuries Christides sustained or the cause
of those alleged injuries. See, e.g., Pa/ay v. United States, 349 F.3d 418,
427 (7th Cir. 2003) ("[u]nder the law of this circuit, because Palay did
not include facts in his Form 95 from which a legally sophisticated
reader might have discerned that he had received inadequate medical
treatment, it would appear that Palay did not exhaust his administrative
remedies with respect to his medical claim").
The court recognizes that in the absence of the statute of
limitations, there would be little basis to an argument that Christides'
conduct hindered the settlement process; as noted, the USPS had full
details of Christides' claim by September 3, 2003, well within the
six-month time period for processing administrative demands under
28 U.S.C. § 2675(a). When the statute of limitations ran out, however,
the USPS lacked sufficient information to proceed with the claim and
Christides had gone forward with his lawsuit in any event. As a result, Christides
"frustrate[d] the process of conciliation and settlement that the
administrative demand is supposed to initiate." Kanar, 118 F.3d at 531.
As for the doctrine of equitable tolling espoused by Christides, it "does
not provide aid to those plaintiffs who fail to research the requirements
of bringing a lawsuit." Hoosier Bancorp. of Indiana, Inc. v. Rasmussen,
90 F.3d 180, 183 (7th Cir. 1996). Nor does the September 3, 2003 Form 95
constitute an amendment that relates back to the August 11, 2003 filing.
(PI. Response ¶¶ 2-4, 6, 7.) Only a claim "presented" can be amended, and
"[s]ince [Christides' September 3, 2001] filing did not include a sum
certain, it was not `presented' within the meaning of § 912.5(a)."
Kokotis, 223 F.3d at 280. Christides' failure to file a proper
administrative demand within the prescribed limitations period "did not
turn out to be harmless" and his suit against the government must be
dismissed with prejudice, Kanar, 118 F.3d at 531.
For the reasons stated above, the government's motion to dismiss
Plaintiff's complaint (Docket No. 2-1) is granted. Dismissal of
Plaintiff's claims against the United States is with prejudice. The court
declines to exercise supplemental jurisdiction over Christides' remaining
state law claims against Zuckerman and remands the case to the Circuit
Court of Cook County, Illinois pursuant to 28 U.S.C. § 1447(c).