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KIEFFER v. VILK

March 27, 1998

MARIAN KIEFFER and DONALD KIEFFER, Plaintiffs,
v.
CHARLES A. VILK, HIM LEASING, and/or COUNTRY CLUB TRANSPORTATION, JOHN G. ROETHEL, and THE UNITED STATES POSTAL INSPECTION SERVICE, Defendants.



The opinion of the court was delivered by: LECHNER

OPINION

 LECHNER, District Judge

 This is an action brought by the plaintiffs, Marian M. Kieffer ("Marian Kieffer") and Donald Kieffer ("Donald Kieffer") (collectively, the "Plaintiffs"), against the defendants, Charles A. Vilk ("Vilk"), HIM Leasing ("HIM Leasing"), Country Club Transportation ("Country Club"), John G. Roethel ("Roethel") and the United States Postal Inspection Service (the "Postal Inspection Service" or the "Postal Service") *fn1" (collectively, the "Defendants") for damages arising out of an automobile accident.

 Currently before the court is the question of whether this court lacks subject matter jurisdiction to vacate the 4 August 1997 order of dismissal (the "4 August Order") and to hear the action on the merits because of the alleged failure by the Plaintiffs to file a timely administrative claim with the Postal Service. The issue of jurisdiction was raised sua sponte at a hearing on 29 October 1997 (the "29 October Hearing"). At the 29 October Hearing, the parties were directed to submit briefs setting forth their positions on the jurisdictional issue. *fn2"

 For the reasons set forth below, this court lacks subject matter jurisdiction and therefore the 4 August Order will not be vacated.

 Procedural History

 A. The Federal Action

 On 2 April 1997, the Plaintiffs filed a complaint (the "Federal Complaint"). See Graham Certif. P 5. The Complaint was dismissed by the 4 August Order on the ground that the Plaintiffs failed to serve the Defendants in accordance with Rule 4 of the Federal Rules of Civil Procedure. See Graham Certif. P 10; see also 4 August Order.

 On 17 October 1997, the Plaintiffs submitted a motion (the "Motion") to vacate the 4 August Order and to restore the action to the trial list. By letter, dated 20 October 1997, (the "20 October Letter") the parties were advised that the Motion would not be considered by the court due to the failure of the Plaintiffs to comply with Rule 7.1(f) ("Rule 7.1(f)") of the Local Rules Governing the District of New Jersey. The 20 October Letter also advised the Plaintiffs that they could resubmit the Motion, provided that they complied with Rule 7.1(f). To date, the Plaintiffs have not refiled the Motion.

 Although the parties were advised that the Motion would not be considered because of its non-compliance with Rule 7.1(f), the 29 October Hearing was scheduled to discuss the issues raised by it. At the 29 October Hearing, the question of whether this court lacks subject matter jurisdiction over the action was raised sua sponte because it appeared the Plaintiffs failed to file a timely administrative claim with the Postal Service and to exhaust the available administrative remedies in accordance with the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 2671 et seq., and applicable federal regulations. See, e.g., 39 C.F.R. § 912.5.

 B. The State Action

 On 3 April 1997, Marian Kieffer filed a complaint (the "State Complaint") against the Defendants in the Superior Court of the State of New Jersey, Monmouth County (the "Superior Court"). See Graham Certif. P 5; Postal Inspection Service's Brief at 2. The State Complaint sets forth allegations that are "essentially identical" to those contained in the Federal Complaint and appears to name as parties the same individuals and entities named in the Federal Complaint, with the exception of Donald Kieffer. See Smith Certif. P 2; Exhibit Pa-6 through Pa-11 attached to the Plaintiffs' Brief.

 By letter, dated 14 May 1997, counsel for the Postal Inspection Service advised the Plaintiffs that, among other things, the FTCA governs all suits asserting negligence of a federal government employee and that federal courts have exclusive jurisdiction over such suits.

 On 22 August 1997, Judge Louis F. Locascio issued an order (the "22 August Order") amending and substituting the United States as the real party in interest in place of the Postal Inspection Service and Roethel. See Graham Certif. P 11. Judge Locascio then removed the action to this court. See id. The file of the Clerk of the Court for the United States District Court for the District of New Jersey, however, does not contain a copy of the 22 August Order. In addition, the Superior Court has not forwarded the pleadings in the State court action to this court. See id. at 12-13 (reporting on status as of 17 November 1997). Accordingly, it appears the State action has not been removed to this court. Thus, the only action before this court is the one that was originally commenced here.

 Facts

 A. The Accident

 On 11 April 1995, Marian Kieffer was a passenger in a vehicle (the "Vilk Vehicle") operated by Vilk *fn3" and owned by HIM Leasing. See Federal Complaint, Count 1, P 1; Plaintiffs' Brief at 1. On that day, the Vilk Vehicle was involved in an accident (the "Accident") with a vehicle (the "Postal Service Vehicle") that was operated by Roethel and owned by the Postal Service. See, e.g., Federal Complaint, Count 2, P 3; Plaintiffs' Brief at 1. Roethel was an employee of the Postal Inspection Service at the time of the Accident. See Postal Inspection Service's Brief at 1-2. The Federal Complaint alleges that, at the time of the Accident, Roethel was operating the Postal Service Vehicle "as agent, servant and/or employee" of the Postal Inspection Service. See, e.g., Federal Complaint, Count 2, P 3. The Postal Inspection Service has not disputed that Roethel was acting within the scope of his employment at the time of the Accident.

 At the time of the Accident, the Vilk Vehicle was "proceeding northbound on Broad Street, in the City of Newark, County of Essex and State of New Jersey." See Federal Complaint, Count 1, P 1. The Postal Service Vehicle also was traveling in a northbound direction on Broad Street. See Federal Complaint, Count 1, P 2. The Plaintiffs assert that Vilk and Roethel were operating their respective vehicles in a careless and negligent manner which caused the Accident. See Federal Complaint, Count 1, P 3; Federal Complaint, Count 2, P 4.

 As a result of the Accident, Marian Kieffer claims to have sustained "severe and permanent" injuries and "suffered and will in the future suffer great pain and mental anguish." See, e.g., Federal Complaint, Count 1, P 4. Donald Kieffer claims to have suffered, among other things, the loss of services of his spouse, Marian Kieffer. See Federal Complaint, Count 3, P 3.

 B. Notice to the Postal Service of the Accident

 By letter, dated 6 May 1996, (the "6 May Letter") counsel for the Plaintiffs advised Roethel that he had been retained to represent Marian Kieffer in connection with the injuries she allegedly sustained as a result of the Accident. See Graham Certif. P 3. Significantly, the 6 May Letter did not mention Donald Kieffer or contain a demand for a sum certain of money damages in connection with the claim by Marian Kieffer. See Exhibit Pa-1 attached to the Plaintiffs' Brief. The Postal Inspection Service received the 6 May Letter on 10 May 1996. *fn4" See Mindlin Certif. at P 3.

 Following his receipt of the 6 May Letter, Arthur S. Mindlin ("Mindlin"), an inspector with the Postal Inspection Service, sent a letter, dated 1 November 1996, (the "1 November Letter") to counsel for the Plaintiffs advising him that any claim against the Postal Service must be set forth on a "Standard Form 95" ("Form 95"). See Mindlin Certif. at P 4. The 1 November Letter enclosed a copy of Form 95 and further advised that Form 95 must be signed by the claimant. See Exhibit Pa-4 attached to Plaintiffs' Brief. The 1 November Letter also cited two Postal Service regulations and mentioned that Marian Kieffer needed to exhaust her administrative remedies under the FTCA. See id. Counsel for the Plaintiffs acknowledged receipt of the 1 November Letter on 4 November 1996. See Mindlin Certif. at P 4.

 Counsel for the Plaintiffs forwarded Form 95 to Mindlin along with a letter, dated 7 July 1997 (the "7 July Letter"). See Graham Certif. P 9. Mindlin received the 7 July Letter and Form 95 on 9 July 1997, more than two years after the Accident and more than three months after the Plaintiffs had filed ...


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