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May 4, 2004.


The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


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 explained,
[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 ...

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