United States District Court, D. Colorado
KYLE V. LAUREN, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CRAIG B. SHAFFER, UNITED STATES MAGISTRATE JUDGE.
This matter comes before the court following a one-day bench trial. The parties consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2 (doc. #13), and the matter was referred to this court on December 1, 2014 to “conduct any and all further proceedings in the case, including the trial and . . . entry of a final judgment.” In compliance with Fed.R.Civ.P. 52(a) and (c), the court enters the following findings of fact and conclusions of law.
Kyle V. Lauren commenced this action on October 24, 2014 with a Complaint filed in the District Court for Adams County, Colorado. Plaintiff asserted a single claim for negligence against Jerry D. Lewis, a Manager of Transportation in the United States Postal Service’s Denver office, following an accident in which the vehicle in which Mr. Lauren was riding was struck when Mr. Lewis allegedly made an illegal u-turn into oncoming traffic. Plaintiff claimed that “[a]s a direct and proximate result of the subject accident, [he] suffered serious injuries, damages, and losses including, but not limited to, an annular tear at C4-5 with some disc extrusion narrowing the spinal canal; right-sided cervical facet syndrome; and right shoulder impingement/supraspinatus tendinosis/bursitis which required . . . treatment for a right-sided facetogenic pain generator.” See Complaint (doc. #3), at ¶9. Mr. Lauren further alleged that his injuries “have caused him physical, mental and emotional pain and suffering, and emotional distress, disfigurement, loss of quality of life, and loss of enjoyment of life, all of which are permanent in nature, ” as well as loss of earnings and earnings capacity. Id. at ¶¶11 and 12.
The United States, on November 10, 2014, filed a Notice of Removal (doc. #1), acknowledging that “[a]t the time of the actions that are the subject of the complaint, Mr. Lewis was a federal employee of the United States Postal Service and was acting in the scope of his federal employment.” On November 13, 2014, the United States moved (doc. #10) to substitute itself as the sole defendant in this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2679(b)(1), which provides that a suit against the United States shall be the exclusive remedy for damages allegedly resulting from negligent actions of federal employees taken within the scope of their employment. The United States was substituted as the sole defendant in this action on November 14, 2014. See doc. #11.
The Federal Tort Claims Act expressly imposes an administrative exhaustion requirement that bars a claimant from bringing suit in federal court “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.” See 28 U.S.C. § 2675(a). See Barnes v. United States, 776 F.3d 1134, 1142 (10th Cir. 2015) (“In a nutshell, § 2675(a) articulates an administrative-exhaustion requirement that dictates when a potential plaintiff’s opportunity to initiate a claim begins[.]”). The purpose of this notice provision “is to allow the agency to expedite the claims procedure and avoid unnecessary litigation by providing a relatively informal nonjudicial resolution of the claim.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 853 (10th Cir. 2005) (quoting Mellor v. United States, 484 F.Supp. 641, 642 (D. Utah 1978). The FTCA also includes a statute of limitation which states that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless [the] action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” See 28 U.S.C. § 2401(b).
On December 24, 2014, the United States moved to dismiss this action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). That motion (doc. #19), along with a supporting affidavit prepared by an employee with the United States Postal Service National Tort Center, argued that the court lacked subject matter jurisdiction over Mr. Lauren’s lawsuit based upon his failure to submit the required administrative claim within two years of the subject accident. Indeed, the Postal Service insisted that it had no record of ever receiving an administrative claim from Mr. Lauren or any individual acting on his behalf prior to November 12, 2014. The government reasoned that compliance with the two-year limitation period “is one of the conditions of the government’s waiver of sovereign immunity under the FTCA, and [a federal] court lacks subject matter jurisdiction to proceed under the FTCA if a plaintiff fails to satisfy the FTCA’s timing requirements set forth in § 2401(b).” According to the United States, Plaintiff’s failure to comply with § 2401(b) could not be cured and therefore stood as a total bar to recovery under the FTCA.
Mr. Lauren’s counsel insisted, to the contrary, that on April 25, 2014, his staff sent by certified mail an executed Standard Form (SF) 95 to the Postal Service. Counsel further proffered that one of his employees received, but subsequently misplaced, a signed return receipt (“green card”) from the Postal Service confirming receipt of Mr. Lauren’s claim. Based upon affidavits attached to his Response (doc. #20), Mr. Lauren argued that he timely complied with the notice provision in § 2401(b) and, thus, the court had jurisdiction over the subject matter of this case. In the alternative, Mr. Lauren sought leave to conduct limited discovery on the issue of whether his administrative claim “was in fact received (and subsequently misplaced) by the USPS.”
On April 28, 2015, this court directed the parties to file supplemental briefs addressing the United States Supreme Court’s April 22, 2015 decision in United States v. Wong, ___U.S. ___, 135 S.Ct. 1625 (2015) and its effect, if any, on the instant case. In Wong, the Supreme Court held that the time limitations in § 2401(b) were non-jurisdictional and subject to equitable tolling. Id. at 1638. That ruling necessarily called into question Tenth Circuit precedent “relating to the jurisdictional status vel non of § 2401(b)’s time limitations.” See Barnes, 776 F.3d at 1148 (holding that “the district court properly dismissed [plaintiffs’] FTCA lawsuit on jurisdictional grounds after correctly determining that the action was time-barred”).
Plaintiff subsequently filed a Supplemental Response to United States’ Motion to Dismiss (doc. #40), in which Mr. Lauren advanced alternative arguments in opposition to the pending motion. First, Mr. Lauren argued that his counsel had complied with §§ 2675(a) and 2401(b) by providing other forms of notification within the required two-year period. If that argument was unsuccessful, Plaintiff suggested the factual record demonstrates that “the two year statue of limitations must be equitably tolled.” Plaintiff’s Supplemental Response was accompanied by 31 separate exhibits.
The United States also filed Supplemental Briefing in Support of its Motion to Dismiss (doc. #41). In that submission, the government conceded that while Wong held that the FTCA’s time limits are non-jurisdictional and subject to equitable tolling, the Supreme Court had not “alter[ed] the absolute two-year time bar for presenting a claim to a federal agency set forth in § 2401(b).” The United States reasoned that
Although, following Wong, a motion to dismiss for lack of subject-matter jurisdiction is no longer the appropriate procedural vehicle for resolving the factual question of whether the Plaintiff timely presented his tort claim against the United States, it can be resolved pursuant to the Court’s authority to conduct a trial on the facts presented and to issue findings and conclusions under Fed.R.Civ.P. 42(b).
Id. The government therefore asked this court to set the matter for an evidentiary hearing on the limited issue of whether Mr. Lauren complied with the time limitations imposed under the FTCA.
During a motion hearing on May 12, 2015, this court conferred with counsel for the parties on the status of the pending motion to dismiss. Counsel conceded, in the wake of the Wong decision, that the disputed issues were no longer appropriate for disposition under Rule 12(b)(1). Counsel also agreed that the objectives underlying Fed.R.Civ.P. 1 (“the just, speedy, and inexpensive determination of every action”) would be more readily achieved through a bifurcated bench trial under Rules 42 and 52 that focused on issues involving the applicable statute of limitations and equitable tolling. That bench trial was conducted on June 17, 2015, following the submission of trial briefs by both sides.
In advance of trial, the United States filed a Motion in Limine (doc. #50) seeking to exclude “any hearsay offered in support of the allegation that Plaintiff timely presented his claim via certified mail sent on or around April 25, 2014, including but not limited to the affidavit of Vanessa Salvador dated December 18, 2014.” Mr. Lauren had proffered Ms. Salvador’s affidavit in response to the United States’ Motion to Dismiss. See Affidavit of Vanessa Salvador attached as Exhibit 5 (doc. #205) to Plaintiff’s Response to United States’s Motion to Dismiss. In her affidavit, Ms. Salvador, a receptionist in the law office of Alan C. Shafner, Esq., stated that she sent Mr. Lauren’s SF 95 by certified mail to the Postal Service on April 25, 2014 and received back a signed green card that subsequently was misplaced or lost. Counsel for the United States argued that Ms. Salvatore’s out-of-court statement did not fall properly under any recognized hearsay exception and thus was inadmissible. Plaintiff’s counsel argued in his Response to United States’ Motion in Limine (doc. #56) that Ms. Salvatore’s affidavit was admissible under Fed.R.Evid. 803(3) (“then-existing mental, emotional, or physical condition”) or Fed.R.Evid. 807(a) (the “residual exception”).
On June 17, 2015, counsel for Plaintiff Lauren conceded that Ms. Salvador would not be testifying at trial and that her current residence was unknown. Plaintiff’s counsel acknowledged that he had recently spoken by telephone to Ms. Salvador, but that she had not cooperated with his efforts to arrange either an interview or deposition. It is also undisputed that Ms. Salvador no longer works at Mr. Shafner’s law firm.
After hearing the arguments of counsel, the court granted in part and denied in part the United States’ Motion in Limine. More specifically, I held that Ms. Salvador’s affidavit was obviously an out-of-court statement purporting to prove the truth of the matters asserted, i.e., that on April 25, 2014, Ms. Salvador actually sent by certified mail an executed SF 95 addressed to the Postal Service and that she subsequently received but then lost the Postal Services’ signed return receipt. The court found that the salient portions of Ms. Salvador’s affidavit consisted of nothing more than conclusory statements that were not, and could not, be corroborated by any other witnesses or exhibits. Accordingly, I granted the government’s motion to the extent it sought to exclude from trial the Salvador affidavit, as well as any hearsay statements made by Ms. Salvador after April 24, 2014, finding that such evidence would not have sufficient “circumstantial guarantees of trustworthiness” to support admission under Rule 807. I further found that such evidence must be excluded under Rule 803(3) as a “statement of memory or belief” offered “to prove the fact remembered or believed.” I denied the government’s motion to the ...