The opinion of the court was delivered by: Lois H. Goodman United States Magistrate Judge
Presently before the Court is Plaintiff Tonja Chamberlain's motion for leave to amend the Complaint. [Docket Entry No. 9]. Plaintiff seeks leave to increase her claim for damages in excess of the amount of the administrative claim she made under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §2675, for injuries she allegedly suffered when her vehicle was hit by a United States Postal Service vehicle. Plaintiff's Brief ("Plaint.'s Br.") at 1 [Docket Entry No. 9-2]. Defendant, the United States of America, opposes the motion, arguing that the proposed amendment is futile. [("Def.'s Br.") at Docket Entry No. 10]. Plaintiff filed a reply brief ("Plaint.'s Reply") in further support of the motion. [Docket Entry No. 12-1]. For the reasons set forth below, the motion is DENIED.
On or about March 23, 2009, Plaintiff was involved in an automobile accident with a vehicle owned by the United States Postal Service ("Postal Service"). Plaintiff submitted an administrative tort claim on or about May 21, 2009 to the Postal Service in the amount of $150,000, with regard to the injuries she sustained in the accident. Complaint at 1-2 [Docket Entry No. 1]; Plaint.'s Br. at 1. In July 2010, Plaintiff's condition deteriorated and on September 1, 2010, she underwent back surgery. Id.
On the same day as her surgery, Plaintiff's counsel amended her administrative claim, to increase the amount sought to $350,000. Plaint.'s Br. at 1; Plaint.'s Br. Exh. 2 [Docket Entry No. 9-2] The Postal Service then exercised its right under 28 C.F.R. §14.2 to consider the increased claim for an additional six months. See Plaint.'s Br. at 1; Plaint.'s Br. Exh. 3 [Docket Entry No. 9-3].
The parties engaged in settlement discussions, and on or about February 10, 2011, the Postal Service made a settlement offer to Plaintiff, which was rejected by counsel's letter dated February 25, 2011. Plaint.'s Br. Exhs. 5 & 6 [Docket Entry Nos. 9-5 & 9-6]. In the February 25 letter, Plaintiff reiterated her demand of $350,000 and further stated that she believed the value of her injury to be even greater. Plaintiff expressly referenced payments made by her personal injury insurance ("PIP") carrier, State Farm, in the amount of $99,000. Plaint.'s Br. Exh. 6. In closing, Plaintiff's counsel indicated that "[i]f the case goes into litigation, we reserve the right to increase the demand based on any new medical developments and our experts' evaluation of her lost earning capacity." Id. Plaintiff enclosed with the letter a log of what Plaintiff then believed to be all of the medical expenses incurred as of February 18, 2011. Plaint.'s Br. Exh. 7 [Docket Entry No. 9-7].
The parties were unable to reach a settlement of the claim, and in a letter dated March 16, 2011, the Postal Service denied Plaintiff's claim. Complaint at 2; Plaint.'s Br. at 2. Plaintiff filed suit on March 30, 2011. [See Docket Entry No. 1].
Sometime in mid-August, 2011, Plaintiff received an updated log from State Farm, detailing Plaintiff's medical expenses incurred to date. Plaint.'s Br. at 2; Plaint.'s Br. Exh. 8 [Docket Entry No. 9-8]. Several new charges, totaling approximately $100,000, had been added, including several relating to the September 1, 2010 surgery. Plaint.'s Br. at 2; Plaint.'s Br. Exh. 8. Plaintiff now seeks leave to increase her claim for damages to $460,332.66, based on the new expenses included on the August 2011 log.
Under Rule 15(a)(1) of the Federal Rules of Civil Procedure, a party may amend its pleading once as a matter of course within 21 days after service of the pleading, or if a responsive pleading is required, within 21 days of service of that responsive pleading or 21 days after service of a motion under Rule 12(b), (e) or (f), whichever is earlier. After that, a party must seek written consent of the opposing party or leave of the court. Fed. R. Civ. P. 15(a)(2). Under Rule 15(a)(2), leave to amend should be freely given, and absent "undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment," the court should allow the amendment. WHY ASAP, LLC v. Compact Power, 461 F.Supp.2d 308, 311 (D.N.J. 2006), citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
An amendment is futile when it fails to state a claim upon which relief may be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1983). The standard of review for futility is therefore the same as that for a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See id.; Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir 1983). The Court must accept as true the factual elements alleged in the well-pleaded complaint but may disregard any legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The Court must then determine if the facts alleged are sufficient to show a "plausible claim for relief." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950 (2009).
As a general matter, the United States is immune from suit unless it first consents, in which case that consent defines the court's jurisdiction with regard to any action against the United States. In terms of the FTCA, "[t]he Third Circuit has recently held that, '[b]ecause the requirements of presentation and a demand for a sum certain are among the terms defining the United States's consent to be sued, they are jurisdictional." Fontanez v. Lopez, 2011 WL 2745809 (D.N.J. July 12, 2011), quoting White-Squire v. United States Postal Serv., 592 F.3d 453, 457-58 (3d Cir. 2010) (finding that the failure to present a claim for a sum certain was fatal despite the claimant's argument that it was justified because the claimant's medical treatment was ongoing). Thus, "'[b]ecause the [FTCA] constitutes a waiver of sovereign immunity, the Act's established procedures have been strictly construed.'" Wilson v. Cherry Hill, 2011 WL 3651274 (D.N.J. Aug. 18, 2011).
Under the FTCA, any party asserting a claim for money damages arising out of the negligent or wrongful act of a government employee must first file a claim with the administrative agency at issue. 28 U.S.C. §2675(a). The agency then has six months within which to consider the claim and respond. 28 C.F.R. §14.2. The injured party may file suit after the claim is denied or after the time has expired without any action taken by the agency. 28 U.S.C. §2675(a). A party may amend his or her claim up until the agency issues a final denial or upon the exercise of the claimant's option to sue after the expiration of the agency's six months consideration period. 28 C.F.R. §14.2. In any lawsuit filed, the claimant is limited to the amount of the administrative claim, except "where the increased amount is based upon newly discovery evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening fact, relating to the amount of the claim." 28 U.S.C. §2675(b).
The purpose of the sum certain limitation in §2675 "is to ensure that federal agencies charged with making an initial attempt to settle tort claims against the United States are given full notice of the government's potential liability." Low v. United States, 795 F.2d 466, 471 (5th Cir. 1986). As the Fifth Circuit found in Lebron v. United States, 279 F.3d 321, 330-31 (5th Cir. 2002), "[r]equiring the plaintiff to guard against a worst-case scenario in preparing his claim gives the Government full notice of its maximum potential liability in the case. This encourages settlement of FTCA cases in accordance with the statute's purposes." ...