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Daniel Gorman v. United States of America

October 16, 2012

DANIEL GORMAN, PLAINTIFF
v.
UNITED STATES OF AMERICA, DEFENDANT



The opinion of the court was delivered by: Steven J. McAuliffe United States District Judge

Opinion No. 2012 DNH 186

ORDER

Daniel Gorman brings this action seeking damages for injuries he sustained when his car was struck by a vehicle driven by an employee of the United States Postal Service ("USPS"). The government moves to dismiss Gorman's suit, saying he failed to file a timely administrative claim with the USPS and, therefore, this court lacks subject matter jurisdiction over his claims. Gorman objects.

Standard of Review

When faced with a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff, as the party invoking the court's jurisdiction, has the burden to establish by competent proof that such jurisdiction exists. See Bank of N.H. v. United States, 115 F. Supp. 2d 214, 215 (D.N.H. 2000). And, in determining whether that burden has been met, the court must construe that complaint liberally, "treating all well- pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff." Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996). Importantly, however, the court may also consider whatever evidence the parties have submitted, such as depositions, exhibits, and affidavits, without converting the motion to dismiss into one for summary judgment.

In a situation where the parties dispute the predicate facts allegedly giving rise to the court's jurisdiction, the district court will often need to engage in some preliminary fact-finding. In that situation, the district court enjoys broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction. In such a case, the district court's findings of fact will be set aside only if clearly erroneous.

Skwira v. United States, 344 F.3d 64, 71-72 (1st Cir. 2003) (citation and internal quotation marks omitted). See also Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162-63 (1st Cir. 2007); Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001).

Background

On April 30, 2009, Daniel Gorman was injured when a USPS truck, operated by a USPS employee, struck the side of Gorman's vehicle. In addition to the damage to his automobile, Gorman says he sustained head, neck, and back injuries. On July 22, 2009, Gorman (acting pro se) filed a notice of claim with the USPS for damage to his vehicle. The USPS granted his claim and sent him a check for approximately $2,100. Subsequently, however, Gorman sought legal advice, returned the check, and advised the USPS that he would be submitting a revised claim which would include his physical injuries and medical expenses.

On December 2, 2009, Gorman filed a revised notice of claim, seeking $33,500 in damages for both personal injury and property damage to his vehicle. But, because he was still receiving treatment, he could not yet document (or, apparently, calculate) the full extent of his medical expenses. His counsel, Attorney Quinn, spoke with the claims specialist assigned to Gorman's case to discuss the fact that Mr. Gorman was still undergoing treatment. See Affidavit of Attorney Francis S. Quinn (document no. 14-4) at para. 2. The claims specialist, Francine Fenton, took contemporaneous notes of those conversations and describes one of them as follows:

On January 14, 2010, I contacted Francis Quinn to obtain any remaining medical invoices in support of his client, Daniel Gorman's, claim. Mr. Quinn advised at that time that Daniel Gorman was still treating. I explained to Mr. Quinn at that time that without medical documentation of the claim, it could possibly be denied. I explained to Mr. Quinn that he may wish to consider withdrawing Mr. Gorman's claim until such time as they had medical documentation to support it. I additionally advised him that, should he choose to withdraw the claim, then he would have two years from the date of the accident to resubmit it.

Affidavit of Francine Fenton (document no. 12-2), at par. 7 (emphasis supplied). Attorney Quinn appears to dispute that claim, saying:

At no time during our telephone calls did Ms. Fenton advise me that, in following her advice, the "withdraw[al]" would be treated as a complete withdraw[al] of Mr. Gorman's claim requiring an ...


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