Free Answer to Complaint - District Court of California - California

Case 3:08-cv-01116-WQH-LSP

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KAREN P. HEWITT United States Attorney MEGAN CALLAN Assistant U.S. Attorney California State Bar No. 230329 880 Front St., Room 6293 San Diego, CA 92101-8893 Telephone: 619-557-7120 Facsimile: 619-557-5004 [email protected] Attorneys for Defendant

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMES NOW Defendant United States of America, through its attorneys Karen P. Hewitt, United States Attorney, and Megan Callan, Assistant U.S. Attorney, and answers the numbered paragraphs of Plaintiffs' Complaint as follows: 1. Answering Paragraph 1of the Complaint, Defendant United States of America states that the allegations constitute conclusions of law solely for the Court's determination, to which no answer is required; to the extent they may be deemed conclusions of fact, they are denied. 2. Answering Paragraph 2 of the Complaint, with respect to the first and second sentences, Defendant United States of America denies the allegations therein. With respect to the third sentence of Paragraph 2, Defendant United States of America states that a June 22, 2004 claim from State Farm Insurance Company, as subrogee of Margarita Rodriquez, was approved. Answering further, a November 15, 2004 claim from Margarita Rodriguez was denied on February 24, 2005. Answering further, a November 1, 2007 claim from Margarita Rodriguez was denied on May 15, 2008. Answering further, Maria White presented no administrative claim regarding this incident prior to November 1, ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA and ) DOES 1 through 20, Inclusive, ) ) Defendants. ) ) __________________________________ ) MARGARITA RODRIGUEZ and MARIA WHITE, Case No. 08cv1116-WQH (LSP)

ANSWER BY UNITED STATES OF AMERICA

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2007. Answering further, a November 1, 2007 claim from Maria White was denied on or about May 15, 2008. With respect to the final sentence, these allegations contained conclusions of law solely for the Court's determination, to which no answer is required; to the extent they may be deemed conclusions of fact, they are denied. 3. Answering Paragraph 3of the Complaint, Defendant United States of America states that the allegations therein constitute conclusions of law solely for the Court's determination, to which no answer is required; to the extent they may be deemed conclusions of fact, they are denied. 4. Answering Paragraph 4 of the Complaint, Defendant United States of America denies the allegations contained in Paragraph 4 of the Complaint. Answering further, Defendant states that the use of Doe Defendants is disfavored in federal courts and that the Federal Rules of Civil Procedure provide for pleading amendment rather than the use of Doe Defendants. 5. Answering Paragraph 5 of the Complaint, Defendant United States of America admits the allegations therein as worded. Answering further, Defendant United States of America states that Thomas Portz is no longer a federal employee. 6. Answering Paragraph 6 of the Complaint, Defendant United States of America denies the allegations therein with the exception that Defendant admits that on May 13, 2004 both Plaintiff Margarita Rodriguez and Plaintiff Maria White collided with the security bollards at the entrance to Naval Medical Center San Diego at different times. 7. Answering Paragraph 7 of the Complaint, with respect to the first sentence, Defendant United States of America denies that Plaintiff Maria White filed a timely administrative claim. Answering further, Defendant states that the untimely administrative claim of Maria White was denied on May 15, 2008, although the denial letter was erroneously dated May 15, 2007. Answering further, Defendant admits that Plaintiff Margarita Rodriguez presented a timely administrative claim which was denied by Thomas Portz by letter dated February 24, 2005. In all other respects, the allegations of the first sentence are denied. With respect to the remainder of Paragraph 7, Defendant admits that Thomas Portz's February 24, 2005 contained the portions quoted in Plaintiffs' Complaint. In all other respects, the allegations of the remainder are denied. // 2

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Case 3:08-cv-01116-WQH-LSP

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8. Answering Paragraph 8 of the Complaint, Defendant United States of America lacks sufficient information or belief upon which to admit or deny the allegations therein, and on that basis denies the allegations. 9. Answering Paragraph 9 of the Complaint, Defendant United States of America lacks sufficient information or belief upon which to admit or deny the allegations therein, and on that basis denies the allegations. 10. Answering Paragraph 10 of the Complaint, Defendant United States of America denies the allegations therein. 11. Answering Paragraph 11 of the Complaint, Defendant United States of America denies the allegations therein. 12. Answering Paragraph 12 of the Complaint, Defendant United States of America denies the allegations therein. 13. Answering Paragraph 13 of the Complaint, Defendant United States of America states that no answer is required because the paragraph is simply an incorporation by reference; to the extent an answer is required, the allegations are denied. 14. Answering Paragraph 14 of the Complaint, Defendant United States of America denies the allegations therein. 15. Answering Paragraph 15 of the Complaint, Defendant United States of America denies the allegations therein. 16. Answering Paragraph 16 of the Complaint, Defendant United States of America denies the allegations therein. 17. Answering Paragraph 17 of the Complaint, Defendant United States of America denies the allegations therein. No answer is required to Plaintiffs' Prayer for Relief. To the extent any answer is required, Defendant United States of America denies the allegations therein. AFFIRMATIVE OR OTHER DEFENSES All allegations not here before specifically admitted, denied, or modified, are hereby denied. For further and separate answer, Defendant United States of America alleges as follows: 3

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FIRST DEFENSE The Court lacks jurisdiction over the subject matter of this action. SECOND DEFENSE The Complaint fails to state a claim against Defendant United States of America upon which relief can be granted. THIRD DEFENSE Plaintiffs have named improper parties as defendants in a Federal Tort Claims Act case. FOURTH DEFENSE Plaintiffs failed to timely or properly exhaust administrative remedies. FIFTH DEFENSE Any injury or injuries sustained by Plaintiffs were caused in whole or in part by and through the carelessness and negligence of Plaintiffs. SIXTH DEFENSE The acts and omissions of others, which were the sole proximate causes of any injury, damage or loss to Plaintiffs, superseded any act or omissions of Defendant United States of America. SEVENTH DEFENSE The acts and omissions of others were intervening, independent and proximate causes of the alleged injuries. EIGHTH DEFENSE Any injury sustained by Plaintiffs was not caused by carelessness or negligence on the part of Defendant United States of America, its agents, servants or employees but was caused solely by and through the negligence of Plaintiffs. NINTH DEFENSE A negligent or wrongful act or omission on the part of an employee or agent of the United States did not proximately cause the injuries and damages alleged by Plaintiffs. // // // 4

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TENTH DEFENSE The liability of the United States and responsible parties, named or unnamed, if any, should be apportioned according to their respective degrees of fault, and the liability of these defendants, if any should be reduced accordingly. ELEVENTH DEFENSE Plaintiffs' claims are barred or diminished as a result of their failure to exercise reasonable case in mitigating their damages. TWELFTH DEFENSE The Complaint, and each and every count contained therein, is barred based on laches. THIRTEENTH DEFENSE Plaintiffs' recovery, if any, is limited to the amount of the claim that Plaintiffs presented administratively in 2004. 28 U.S.C. § 2675(b). FOURTEENTH DEFENSE All future damages, if any, must be reduced to present value. FIFTEENTH DEFENSE Income taxes must be deducted from all alleged past and future lost earnings, if any. SIXTEENTH DEFENSE In the event Defendant United States of America is found liable, which Defendant expressly denies, Defendant is entitled to an offset against damages, if any, for all amounts received by Plaintiffs from the United States and its agencies, and also from all collateral sources, by reason of Plaintiffs' alleged injuries. SEVENTEENTH DEFENSE Plaintiffs shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, or other nonpecuniary damages under certain circumstances, including the failure to insure the vehicle as required by the financial responsibility laws of the State of California. Cal. Civil Code § 3333.4. // // 5

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EIGHTEENTH DEFENSE Plaintiffs' allegations of deceit or misrepresentation are excluded from the limited waiver of sovereign immunity provided by the Federal Tort Claims Act. 28 U.S.C. § 2680(h). NINETEENTH DEFENSE The Federal Tort Claims Act prohibits punitive damages. WHEREFORE, Defendant prays that Plaintiffs take nothing by reason of their suit herein, that judgment be rendered in favor of Defendant United States of America, for costs of suit herein incurred, and for such other and further relief as this court may deem proper. Dated: September 8, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Megan Callan MEGAN CALLAN Assistant U.S. Attorney Attorneys for Defendant United States of America Email: [email protected]

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KAREN P. HEWITT United States Attorney MEGAN CALLAN Assistant U.S. Attorney California State Bar No. 230329 880 Front St., Room 6293 San Diego, CA 92101-8893 Telephone: 619-557-7120 Facsimile: 619-557-5004 [email protected] Attorneys for Defendant

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I declare under penalty of perjury that the foregoing is true and correct. 23 Executed on September 8, 2008. 24 25 26 27 28 s/ Megan Callan Megan Callan James Sexton Attorneys for Plaintiffs E-Mail: [email protected] I am not a party to the above-entitled action. I have caused service of: ANSWER BY UNITED STATES OF AMERICA on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically provides notice. IT IS HEREBY CERTIFIED THAT: I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA and ) DOES 1 through 20, Inclusive, ) ) Defendants. ) ) __________________________________ ) MARGARITA RODRIGUEZ and MARIA WHITE, Case No. 08cv1116-WQH (LSP)

CERTIFICATE OF SERVICE