Free Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00518-JJF

Document 1

Filed 08/15/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELA WARE JOY MARIE BERTRAND, Plaintiff,

C.A.No.

v. UNITED STATES OF AMERICA,
Defendant. COMPLAINT FOR NEGLIGENCE Plaintiff, by and through Plaintiffs attorneys, Barros, McNamara, Malkiewicz & Taylor, P.A., hereby allege as follows: I. That Plaintiffis an adult citizen and resident ofthis judicial district residing at 26163 Kelly

Circle, Seaford, Delaware 19973.
2.

Defendant, United States of America, is a sovereign entity with offices for purposes of

service of process at the United States Attorney General's Office, Room 4400,950 Pennsylvania Avenue, NW, Washington, D.C. 20530-0001 and the United States Attorney's Office for the District of Delaware,

1007 North Orange Street, Suite700, Wilmington, DE 19801. 3.
4.

This action arises under the Federal Tort Claims Act, 28 U.S.c. §§2671-2946.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1346(b)(I), subject

to the provisions of28 U.S.c., §171.

5. America. 6.

The United States Postal Service is an agency of the Defendant, The United States of

Plaintifffiled an Administrative

Claim for civil damages on or about April 30, 2007 in

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accordance with the provisions of28 U.S.C. §2675 (a). More than six months have elapsed since this claim has been filed and Defendant has failed to make a final disposition of this claim. Therefore, Defendant is deemed to have made a final disposition of theclaim, therebypermitting Plaintiff to institute this action. 7. On May 06, 2005, Plaintiff was operating a motor vehicle southbound on U.S. Route 13,

in Camden, Kent County, Delaware. At the same time, Melvin D. Seelye, Jr., while in the course of
employment with the United States Postal Service (USPS), was operating a USPS vehicle eastbound on Lochrneath Way at its intersection with U.S. Route 13. Defendant's USPS employee, Melvin D. Seelye, Jr., failed to stop or remain stopped at the stop sign, crossed the southbound lanes ofU. S. Route 13 and the intervening space between southbound and northbound U.S. Route 13, entered the northbound lanes ofU. S. Route 13 and collided with Plaintiff's vehicle, causing serious and pennanent injuries to the Plaintiff.

8.

At all times pertinent hereto Melvin D. Seelye, Jr., was employed by and was an agent of

the Defendant through his employment with the United States Postal Service, and was acting within the scope of employment. 9. Pursuant to 28 U.S.C. § I346(b)(l), the United States is liablefor the negligence or

wrongful act or omission of any employee of the Government while acting within the scope of his or her employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act occurred. 10.
That the Defendant through the negligent acts of its agent, Melvin D. Seelye, Jr., was guilty

of negligence pursuant to Delaware Code as follows: (a)

Defendant operated a motor vehicle on a public highway in a careless and

imprudent manner, in violation of21 Delaware Code § 4176(a);

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capacity and future medical expenses and loss of earnings. WHEREFORE, the Plaintiff demands judgment against Defendant in the amount of $300,250.00, an amount which will compensate Plaintifffor her property damage and her past, present
and future pain, suffering, disability, medical expenses, future medical expenses, lost earnings, and earning

capacity, plus costs of this action.

BARROS, MCNAMARA, MALKIEWICZ & TAYLOR, PA

BY: /s/ Edward R. McNamara Edward R. McNamara, Esquire, Delaware Bar ID # 348 2 West Loockerman Street P. O. Box 1298 Dover, DE 19903 (302) 734-8400 [email protected] Attorneys for Plaintiff Dated:

~ /./ oY'

Case 1:08-cv-00518-JJF
'-IS 44 (Rev, 12107)

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CIVIL COVER SHEET

The JS 44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court, ThIs fonn, approved by the JudIcial Conference ofthe Umted States in September 1974, is reqUIred for the use of the Clerk of Court for the purpose of mitiatmg the CIVI!docket sheet (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS
Joy Marie Bertrand
(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.s, PLAINTIFF

DEFENDANTS United
~ex
CASES) NOTE: County

States
of Residence

of America
of First Listed Defendant CASES ONLY)

(IN US. PLAINTIFF IN LAND CONDEMNATION LAND INVOLVED

CASES, USE THE LOCATION OF THE

(c)

AUorney's (Firm Name, Address, and Telephone Number)

Attorneys

(If Known)

Edward R.McNamara, Esq., Barros, McNamara, Malkiewicz Ta 10r,P.A, PO Box 1298, Dover, DE 19903 302734-8400 II. BASIS OF JURISDICTION 01
U.S. Government Plaintiff

&

n,
III. CITIZENSHIP
Citizen of This State

OF PRINCIPAL
PTF 0 I DEF 0 I

PARTlES(PI~'m "X"toOn,Bodb, PI.otiff
and One Box for Defendant) PTF DEF IncorporatedorPrincipalPlaeJ: 0 4 04 of Business In This State Incorporated ond Principal place of Business In Another State Foreign Nation 0 5 05

(For Diversity Cases Only)

03

FederalQuestion (US. Government Not a Party)

11(2

US

Government Defendant

04

Diversity (Indicate Citizenship of Parties in ItemlIJ) I

Citizen of Another State

02

0

2

Citizen or Subject ofa Foreii/;nCountrV

03

0

3

0

6

06

IV. NATURE
0 0 0 .:J 0

cr

OF SUIT

rmce an -'h In vne nox vnJ'l)

TS'
0 0 PERSONAL INJURY 362 Personal Injul)'Med.Malpractice
365 Personal Injury

LTY
0 610 Agriculture 0 620 Other Food & Drug 0 625 Drug Related Seizure of Property 21 USC88] 0 630 Liquor Laws 0640R.R,&Truck 0 650 Airline Regs 0660Qccupational Safety/Health 0 690 Other 0 710 Fair Labor Standards Act 0 720 Labor!1vlgmt. Relations 0 730 Labor/Mgmt.Reporting & Disclosure Act 0 740 Railway Labor Act 0 790 Other Labor Litigation 079]EmpLRet.Jnc Security Act 0 422 Appea128 USC 158 0 423 Withdrawal 28USC ]57 R 0 820 Copyrights 0 830 Patent 0 840 Trademark 0 0 0 0 0 0

PERSONAL INJURY 110 Insurance 120 Manne 0 310Airpiane 130 Miller Act 0 315 Airplane Product Liability 140 Negotiable Instrument ]5,0 Recovel)-' of Overpayment C1 320 A~sault, Libel & & Enforcement of Judgment Slander 0151 Medicare Act 0 330 Federal Employers' Liability ['J 152 Recovel)'ofDetaulted Student Loans 0 340Marine (Exc!. Veterans) 0 345 MariT!eProduct Liability 0 153 Recovery of Overpayment ofYeteran'sBenefits IX 350 MotorYehicle 0 160Stockho]ders' Suits 0 355MotorVehicle 0 190 Other Contract Product Liability ]95 Contract Product Liability ['J 360QtherPersonai 0 Jniury 0 196 Franchise C ltEAL PR PE III 0 210 Land Condemnation 0 441 Voting 0220Forec1osure 0 442 Emp]oyment 0230 Rent Lease & Ejectment 0 443Housingi 0 240 Torts to Land Accommodations 0 245 Tort Product Liability 0 444Welfare 0 290 A!1 Other Real Property 0 445 Amer. w/Disabilities. Emp]oyment 0 446Amerw/Disabi]itiesOther 0 440 Other Civil Rights

Product Liability 0 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 0 370 Other Fraud 0 371 Truth in Lending 0 380 Other Persona! Property Damage 0 385 Property Damage Product Liability PE 0 510 Motions to Vacate Sentence Hl!lbeasCorpus: 530 GeneraJ 535 Death Penalty 540 Mandamus & Other 550Civi] Rights 555 Prison Condition

-

:J

0 0 0 0 0

086IHIA(1395fi) 0862 Black Lung (923) 0 863 DIWC/DIWW (405(g)) 0 864 SSII~4Ti;~:;VI 0 865RSI 405 FEDERALTAX 1'8 0 870 Taxes (U.S, Plaintiff or Defendant) 0 871 IRS-Third Party 26 USC 7609

400 State Reapportionment 410 AntitTust 430 Banks and Banking 450Commerce 460 Deportation 470 Racketeer Intluenced and COITUptOrganizations ['J 480 Consumer Credit 0 490CabJe/SatTV 0 810SelectiveServi"e 0 850 Secuntie&lCommodities/ Exchange 0 875CustomerChalienge ]2USC341O 0 890 Other Slatutol)' Actions 0 89] AgncuJturaJActs 0 892 Economic Stabilization Act 0 893 Environmenlal Matl.::rs 0 894 Energy Allocation Act 0 895 Freedom oflnf,mn!ltion 0 900Appea] of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

-

A"

1~4bZNaturaliZ~~ 0 463 Habeas Corpus. Alien Detainee 0 465 Other Immigration Actions

0

V. ORIGIN (Place an "X" in One Box 0 2 Removed from t'iil Original Proceeding State Court VI. CAUSE OF ACTION VII. REQUESTED COMPLAINT: IN

Only)

0

3

Remanded from Appellate Court

C~~~~~a~' F6v~ ~i~~t~~'Jt.bth~~
Brief description of cause:

5 Transferr~d ~rom 0 6 Multidistri!:t anoth~r dIstrict Litigation (sDeclfv) statutes unless diversity): 13~~~l!~i~~l'f!~~~risdictional 0 4 Reinstated or 0 Reopened vehicle struck by U::;P::; vehicle

0

7

Appea! to District Judge from Magistrate Judgment

Personal

InJury

action

- Plainillt.s

0

CHECK IF THIS IS A CLASS ACTION DEMAND S UNDER PR.CP. 23 300,250.00
(See instructions)

CHECK YES only if demanded in complaint' JURY DEMA"D: 0 Yes 16 No DOCKET NUMBER None

VIII. RELATED CASE(S) IF ANY
DATE

JUDGE

None
ATIORNEY OF RECORD

S]GNATUREOF

/s/ Edward
FOR OFFICE USE o~i:V
RECEIPT # AMOUNT
APPLYING

R. McNamara,

Esquire

IFP

JUDGE

MAG. JUDGE