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Wages v. United States

United States District Court, N.D. California

June 18, 2015

SANDRA WAGES, Plaintiff,


HOWARD R. LLOYD, Magistrate Judge.


Plaintiff Sandra Wages has sued the United States of America, alleging that it is responsible for a personal injury she suffered. Defendant United States of America moved to dismiss the case on the ground that plaintiff did not timely present her administrative tort claim, as required under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401(b). Dkt. No. 7. Wages filed an Opposition (Dkt. No. 14), and the government filed a Reply (Dkt. No. 15). After briefing was complete, the case was stayed pending the Supreme Court's decisions in Kwai Fun Wong v. United States, 732 F.3d 1030 (9th Cir. 2013), cert. granted 134 S.Ct. 2873 (2014) and June v. United States, 550 F.Appx. 505 (9th Cir. 2013), cert. granted 134 S.Ct. 2873 (2014). In subsequently deciding those cases, the Supreme Court held that equitable tolling could apply to an FTCA claim. See United States v. Kwai Fun Wong, 135 S.Ct. 1625 (2015) (deciding both June and Wong ).[1] Following the Supreme Court's decision, the government requested that the Court treat the previously filed motion to dismiss as a motion for summary judgment, and consider various declarations concerning matters outside the pleadings. Dkt. No. 18 at 2. Plaintiff suggested that she would be prejudiced by converting the motion to dismiss into a motion for summary judgment, but did not specifically identify any additional discovery necessary for the Court to rule on summary judgment, as required by Federal Rule of Civil Procedure 56(d). Dkt. Nos. 19, 23. Accordingly, the Court converted Defendant's Motion to Dismiss into a Motion for Summary Judgment. Dkt. No. 21. Both Plaintiff and Defendant then filed Supplemental Briefs. Dkt. Nos. 22 and 23. The Court held a hearing on June 16, 2015. Dkt. No. 25. Upon consideration of the matter, the Court GRANTS the Motion for Summary Judgment.


This action arises out of slip and fall that occurred on October 20, 2011 at the Fort Hunter Ligget ("FHL") Army Base. Dkt. No. 1, Compl. ¶ 10. That morning, Wages fell over uneven pavement while walking within the base. Id. There was a "one inch difference between the concrete sidewalk and the asphalt parking lot" where Wages fell, and the area was not marked with any type of warning. Id. As a result of her fall, Wages suffered injuries to her right wrist and left knee. Id. ¶ 16.

Wages wished to file an FTCA claim and retained counsel on or before December 29, 2011. Dkt. No. 7-1, Scharf 12/10/2014 Decl., Ex. A. As explained further below, Wages was required to present her FTCA claim to the appropriate federal agency within two years of the incident. 28 U.S.C. § 2401(b). In this case, Wages was required to present her claim by October 21, 2013, as October 20, 2013 was a Sunday.

On October 18, 2013, Wages' claim was sent via regular mail from her counsel's office in San Louis Obispo, California to the FHL police department in Fort Hunter Ligget, California and to the Office of the Staff Judge Advocate ("OSJA") in Monterey, California. Dkt. No. 14-2, Romero Decl. ¶ 2. Plaintiff maintains that her claims were received by the FHL police and OSJA by October 21, 2013. The claim letter sent to the OSJA was postmarked on October 18, 2013 and was stamped as received by the Staff Judge Advocate mail room on October 22, 2013. Dkt. No. 7-2, Bennett 01/14/2015 Decl. ¶ 4. The FHL police department does not have any record indicating that Wages' claim letter was ever received. Dkt. No. 7-5, Lovett 01/14/2015 Decl. ¶¶ 3-4. Wages maintains that the OSJA's mail distribution procedures show that the claim was delivered on October 21, 2013, even if the OSJA did not date-stamp the claim until October 22, 2013.

The distribution procedures for official claim letters sent to the OSJA are as follows: (1) a mail clerk at the Presidio of Monterey United States Postal Service ("Presidio USPS") picks up official mail daily before 9:00 a.m., (2) mail is immediately sorted and distributed to the OSJA's box at the Official Mail and Distribution Center, (3) a member of the OSJA picks up the mail from their distribution bin on a daily basis before 11:00 a.m. and puts it in the appropriate branch mail box in the OSJA mailroom, (4) a Claims Branch employee collects the mail from the Claims Branch mail box and date-stamps the envelope with the date received and initials it, (5) that employee marks it for or distributes it to the applicable claims employee. See Dkt. No. 7-3, Lino 01/14/2015 Decl.; Dkt. No. 7-4, Din 01/14/2015 Decl.

On March 27, 2014, the Army Claims Office sent a letter to Wages' counsel denying her claim for failure to file within the two-year limitation period under the FTCA. Scharf 12/10/2014 Decl., Ex. B.

The government moved to dismiss Wages' complaint, arguing that the complaint did not include any facts showing that the FTCA claim was timely received, nor did the complaint allege sufficient evidence to support equitable tolling. Dkt. No. 7 at 4; Dkt. No. 22 at 4. The Court converted the motion to dismiss into a motion for summary judgment. Dkt. No. 21.


Under Rule 56(a), summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute of material fact and that the moving party is entitled to judgement as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden of proof on the moving party may be shifted if the moving party can demonstrate that there is not sufficient evidence to support the opposing party's claim. Id. at 325. If the burden of proof is shifted to the non-moving party and it cannot show the required evidence, the moving party is entitled to summary judgment as a matter of law. Id. at 323.


In order to bring a claim under the FTCA, a plaintiff must present an administrative tort claim to the appropriate federal agency ...

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