Previously pending on this court's law and motion calendar for January 7, 2009, was defendant's motion to dismiss or for summary judgment. Assistant U.S. Attorney Jason Ehrlinspiel appeared on behalf of defendant United States. No appearance was made on behalf of plaintiff, who is represented by attorney Erik Child. Mr. Child did, however, file an opposition to the motion which acknowledged his awareness of the date, time and location for the hearing.*fn1
This action proceeds before the undersigned for all purposes pursuant to 28 U.S.C. § 636(c). For the following reasons, the court dismisses this action.
The complaint, filed pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2401 et seq., alleges negligence by the employees of defendant U.S. Postal Service ("USPS" or "agency"), at its Brookfield Drive location in Sacramento. The complaint states that on April 3, 2006, plaintiff slipped on water accumulated on the floor of the post office lobby, and fell, injuring her spine, a direct and proximate result of defendant's negligence. The complaint seeks $900,000 in damages.
On April 30, 2007,*fn2 plaintiff presented to defendant an administrative tort claim, set forth in a detailed letter in which she sought $200,000 settlement for her injuries, medical expenses and lost wages. Def.'s Mot., Exh. A. On December 10, 2007, plaintiff presented to defendant a completed and executed Standard Form 95 ("SF-95" of "Form 95"), seeking $750,000 in damages. Id., Exh. B.
Plaintiff filed this action on March 24, 2008, seeking $900,000 in damages.
Thereafter, on May 6, 2008, and again on May 17, 2008, USPS mailed a "final denial" letter to plaintiff's counsel by certified mail. The first letter, sent to counsel's former office, was returned. Id., Exh. C. Plaintiff's counsel signed for and accepted the second letter on June 2, 2008. Id., Exh. E. Because the letters are identical,*fn3 and the first letter was returned, the operative letter is that mailed May 17, 2008. See, e.g., Graham v. United States, 96 F.3d 446, 448 (9th Cir. 1996) ("The time for filing a district court action begins to run when the agency mails the notice of denial. See 28 U.S.C. § 2401(b)."); see also 28 C.F.R. § 14.9(a) (plaintiff may file suit "not later than 6 months after the date of mailing of the notification").
On June 5, 2008, plaintiff served her previously-filed judicial complaint upon defendant. Defendant answered the complaint on July 30, 2008, and filed this motion on December 5, 2008.
Defendant contends that plaintiff's complaint was prematurely filed because her second administrative filing, on December 10, 2007, constituted an "amended claim" that reset the six-month period within which the administrative agency could act, 28 U.S.C. § 2675, thus rendering this court without subject matter jurisdiction due to plaintiff's failure to exhaust her administrative remedies.
Plaintiff responds that her Form 95 filing was intended, and should be construed, as only a reminder to USPS of plaintiff's initial claim, filed April 30, 2007, and therefore that the six-month period for agency action expired on October 30, 2007, rendering her action timely filed in this court on March 24, 2008.
Defendant moves to dismiss this action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action").*fn4 "[W]here a jurisdictional issue is separable from the merits of the case, the Court may determine jurisdiction by the standards of a Rule 12(b)(1) motion to dismiss for lack of jurisdiction." Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). "In ruling on a challenge to subject matter jurisdiction, the district court is ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. See Thornhill Publishing Co. v. General Telephone Corp., 594 F.2d 730, 733 (9th Cir.1979). In such circumstances, '[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.' Thornhill, 594 F.2d at 733." Augustine v. United States, 704 F. 2d 1074, 1077 (9th Cir. 1983).
A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994). Lack of subject matter jurisdiction is so fundamental that it may be raised at any time by any party or by the court. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). Plaintiff bears the burden of demonstrating the court's jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) ("A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction"). "A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on ...