USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 96-2245

BARBARA COSKA,
Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________

____________________

Before
Torruella, Chief Judge,
___________

Bownes, Senior Circuit Judge,

____________________
and Lynch, Circuit Judge.
_____________
____________________

John B. Manning,
_______________

with whom Curtin, Murphy & O'Reilly, P.C.,

_________________________________

on brief for appellant.

Mary Elizabeth Carmody, Assistant
_______________________
whom

Donald K. Stern,
_________________

United States

United

States Attorney,

Attorney,

appellee.

____________________

was

on

brief

May 29, 1997

____________________

LYNCH, Circuit Judge.

Plaintiff-appellant Barbara

LYNCH, Circuit Judge

_____________

Coska

brought

Federal

Tort Claims

injuries

she

government

proper

suit

against

Act,

sustained

the United

28 U.S.C.

in

property. Holding

under

the

2671 et
__

seq.,
____

for

accident

on

slip-and-fall

that

demand for a "sum certain"

States

Coska failed

to make

against the United States

within the prescribed two-year limitations period, the United

States

district

court

dismissed

the action

subject matter jurisdiction and, in the

for

lack

of

alternative, granted

the defendant's motion for summary judgment.

We affirm.

I.

Our

dismiss

review

of the

allowance

and for summary judgment

of

is de novo.
__ ____

the motions

to

See Borschow
___ ________

Hosp. & Med. Supplies, Inc. v. Cesar Castillo, Inc., 96 F.3d

____________________________
____________________

10, 14 (1st Cir. 1996); Murphy v. United States, 45 F.3d 520,

______
_____________

522 (1st Cir. 1995).

We recount the facts in

favorable to Coska.

See Borschow Hosp. & Med. Supplies, 96

___ _______________________________

F.3d at 14;

the light most

Murphy, 45 F.3d at 522.

______

On

March 15,

walking on an ice

1993, Coska

slipped and

fell while

and snow-covered sidewalk in front

of the

building where she worked at 386 West Broadway, South Boston,

Massachusetts.

Coska alleges

that she

suffered injuries,

including a fractured ankle, as a result of the fall.

At the time of the accident, the property was owned

by

the

United States

through

the

United States

Marshals

-22

Service.

The Marshals Service had

entered into a management

contract with Barlou Management Company which required Barlou

to

maintain the

property

and held

Barlou responsible

for

removing any snow or debris from the parking area, sidewalks,

and entrances to

the premises.

Barlou

then contracted with

another company, Kevin Sutherland Landscaping ("Sutherland"),

to handle the actual removal of any snow and debris.

On April 13, 1993,

the

Marshals

Service

and

Coska's counsel sent letters to

to

Barlou Management

Coska's accident at 386 West Broadway.

regarding

In relevant part, the

letter to the United States stated:

Please be advised that

Ms. Barbara Coska, who
injuries as
accident,

received personal

a result of a
caused

we represent

by

slip and fall

the

failure

to

adequately clear the accumulation of snow

and

ice from

the

front of 386 West

Coska

sustained

(fractured

in

sidewalk

located

Broadway . . . .
a

three

fractured
places),

in
Ms.

ankle
and

is

currently in an ankle to hip length cast;

she may require surgery in the future.

claim for her damages resulting from this

accident is hereby made.

The

letter

to

Barlou

employed

the

same

language

but

explicitly attributed the

failure to clear the snow

and ice

from the sidewalk to the Barlou Management Company.1

Neither

letter set forth the amount of damages being claimed.

____________________

1.

That

letter

stated

in

. . . received personal injuries

fall accident,
adequately

relevant
as a result

part:

"Coska

of a slip

and

caused by Barlou Management Co.'s failure to

__________________________________

clear the accumulation

sidewalk . . . ." (emphasis added).

-33

of snow and

ice from the

The Marshals Service

by

letter dated June 7,

must submit

injury

could

1993, advising her

a claim for damages

allegedly caused

administratively

damages.

responded to Coska's

The letter

Injury, Damage,

that a claimant

in a "sum certain"

by the

incident before

adjudicate

her

claim

enclosed a Standard Form 95

or Death)

counsel

(hereinafter "SF-95")

for any

the agency

for monetary

(Claim for

and stated

that the form should be completed and returned along with all

information

and

documentation

substantiating

the

claim.

not

Coska,

"demand packet"

it had

Coska never returned the requested form.

Thirteen

forwarded to

months

the United

later,

States the

Barlou,

but

earlier received from Coska's counsel.2

The 118-page packet,

dated June 21, 1994, contained relevant information regarding

Coska's

claim

against Barlou,

Barlou in the amount of $225,000.

packet stated

that Barlou's

including

demand against

The letter included in the

failure to clear

the entrances

and sidewalks adjacent to 386 West Broadway was "the sole and
________

proximate cause
________________

added).

of

the plaintiff's

The letter

against,

or

even

Marshals

Service.

contained

mention

no

of, the

accident."

(emphasis

assertion of

liability

United

States

or

the

At this point, Coska's counsel had yet to

____________________

2.

The

record

is unclear

as

to whether

Barlou

sent the

packet on

its own initiative

requested it.

Regardless,

or whether
it

was

the United

not

sent

by

States
Coska's

counsel.

-44

contact

the

United States

in response

to its

request for

documentation of the claim and/or the SF-95.

Five

more months passed with

no word from

Coska.

December 12, 1994, the Marshals Service sent a second

On

letter

to Coska's counsel.

the claim,

This letter "acknowledge[d] receipt" of

stated that "[i]n

Claims [sic]

this regard, the

was received by the

Federal Tort

agency to administratively

adjudicate the claim," and then cited to the FTCA.

In

its

since Coska's

first

communication with

initial letter sent almost

the

government

two years earlier,

the law firm representing Coska sent a letter to the Marshals

Service

dated February

that new attorneys from

case.

14, 1995,

informing

the same firm would be

Counsel also asked

in this letter

the government

handling the

whether the claim

satisfied the notice requirements of 28 U.S.C.

2401 and the

procedural

requirements

reasons

disclosed

by the record,

the

demand packet

of

sent to

the

FTCA.

For

counsel enclosed a

Barlou "in

not

second copy of

the event

that [the

United

States

was]

missing any

information

[required] to

fully evaluate the claim" and urged the government to contact

them if it needed any additional information.

About a month later,

that.

A paralegal

assigned

-55

the Marshals Service did just

to

the case

called

Coska's

counsel

and requested

demand for

response, Coska's counsel claimed

additional medical bills

packet to Barlou.

sum certain.3

In

that they were waiting for

beyond those set out

in the demand

The paralegal then sent another

SF-95 to

Coska's counsel, which was never returned.

The United

counsel

on

June 20,

States sent

a third letter

1995, requesting

certain and including yet another

to Coska's

demand for

SF-95 form.

The

a sum

Marshals

Service apparently denied the claim by letter dated September

15,

1995, having

received

no response

Coska says she did not receive the letter.

to these

requests.

On December

the United

States alleging

and breach of

Coska brought suit

negligence, breach

warranty of habitability.4

filed a motion to

against

of contract,

The United States

dismiss and, in the alternative,

for summary judgment.

to

18, 1995,

a motion

The district court granted the motion

dismiss, alternatively

characterizing it

as a

grant of

summary judgment.

II.

____________________

3.

The call

was

either placed

statute of limitations had

in

late March

run or in early April

before

the

just after

the period expired.

4.

Similar claims

were brought against Barlou.

The United

States filed a cross-claim against Barlou, who in

a

third party

complaint

against Sutherland

turn filed

(snow

removal

contractor).

-66

As the recitation of facts demonstrates, before the

expiration of

made

one or

Coska and

the limitations period, the

two specific

requests for

had sent her at least

United States had

a sum

certain from

one SF-95 form to complete.

More

requests (with

later.

the

accompanying

government

and the

copy

were

of the

made

demand packet

States for a

notice

sum certain under

We find that they do not.

Under

States is

the FTCA,

barred unless

agency within

two years

a tort

it is

of its

claim against

Cir. 1991).

An

accrual.

damages in a sum

certain.

other

See
___

to the

28 U.S.C.

949 F.2d 484, 485 (1st

administrative claim is

includes, among

the United

"properly presented"

2401(b); Corte-Real v. United States,

__________
_____________

it

Barlou

those letters constitute a

claim against the United

the FTCA.

when

forms)

The issue on appeal is whether Coska's two letters to

included in the second of

of

SF-95

things, a

See 28 C.F.R.
___

properly presented

claim

for money

14.2(a);5 Corte______

Real, 949 F.2d at 485.

____

A timely filed sum certain claim is a

____________________

5.

28 C.F.R.

14.2(a) provides in pertinent part:

For purposes of the provisions of 28

U.S.C. 2401(b), 2672,

shall

be deemed

when a

Federal

claimant
95

to have

claim

been presented

agency receives

from

. . . an executed Standard Form

or other

incident,

and 2675, a

written notification

accompanied

by

claim

of an
for

money damages in a sum certain for injury

to or loss
or

death

of property, personal injury,

alleged

to

have

reason of the incident . . . .

-77

occurred by

jurisdictional

prerequisite

federal government.

for a

tort action

against the

Kokaras v. United States, 980

_______
_____________

F.2d 20,

22 (1st Cir. 1992) (citing cases).

The purpose

of the

sum

certain requirement

goes

beyond mere administrative convenience;

it is to apprise the

government

and

of

its possible

liability

to provide

the

government with notice "sufficient to allow it to investigate

the

alleged

negligent episode

to

determine

would be in the best interests of all."

if settlement

Corte-Real, 949 F.2d

__________

at 486 (quoting

(1st

Lopez v.
_____

Cir. 1985)).

reference the

objective.

United States, 758

_____________

Coska's letter,

Barlou demand

That packet

F.2d 806,

which incorporated

packet, failed to

809

by

achieve this

contained no information

about the

liability of the United States nor did it state the amount of

damages it would seek from the United States.

Indeed, by its

own terms, the packet asserted a claim that Barlou was solely
______

liable.

As the

district court observed,

against Barlou "is not

of

the cases

claim

the

an appropriate substitute."

Coska cites,

to proceed despite

sum certain

failed

to

the demand packet

where this

a dispute over

requirement, had

assert explicitly

court has

none

allowed a

the fulfillment of

the plaintiff

damage

In

completely

amount against

the

United

Real,
____

States.

949

F.2d

See, e.g.,
___ ____

at

Santiago-Ramirez v.
________________

Kokaras, 980 F.2d

_______

486-87;

Lopez,
_____

758

at 23; Corte______

F.2d 808-11;

cf.
___

Secretary of the Dep't of Defense, 984

___________________________________

-88

F.2d at 17-20 (1st Cir. 1993).6

Thus, Coska's arguments fall

short.7

This need for

secret from Coska

contrary,

the

in hopes of

United

requests for the

a specific sum certain

States

sum certain.

was not kept

defeating her claim.

made

All of

number

of

To the

specific

those requests

were

ignored.

____________________

6.

Coska's reliance on the Ninth Circuit's decision in House

_____

v. Mine Safety Appliances Co., 573 F.2d 609, 615-16 (9th Cir.
__________________________
1978)

is also misplaced.

That case supports the notion that

incorporation by reference can, on certain facts, satisfy the

jurisdictional
claim.

The

requirement

requirement
Ninth
had

not

Circuit
been

of presenting
found
met

incorporating nor the incorporated

that

an administrative
the

because

sum

certain

neither

the

documents set forth a sum

certain

claim

of

claimant(s).

damages

See House,
___ _____

other grounds by
__________________

explicitly
573 F.2d

Warren
______

v.

applicable

at 615-16,

this case, Coska made

between

the

overruled on
____________

United States Dep't of the

_____________________________

Interior, 724 F.2d 776 (9th Cir. 1984) (en

________
in

to

banc). Similarly,

no "explicit[] link,"

any demand against the

id. at 616,
___

United States and the demand

for a sum certain it asserted against Barlou.

7.

The

government argues

independent
several
not

contractors, that

Barlou and

Sutherland were

liability was

not joint

and

as Coska asserts, and so that notice to Barlou could

as a matter of law, provide notice to the United States.

Therefore, the
could not be
this

that

case,

United States

says, a demand

against Barlou

a demand against the United States.

we

need

Sutherland were

not

address

whether

Barlou

"independent contractors" and

joint and severally liable.

To decide
and/or

thus were not

That the government is

able to

make the argument, whatever its resolution, demonstrates that

it

is far from a

foregone conclusion that

Barlou constituted

a demand against

the district court observed,

demanded

by

Coska

from

a demand against

the United States.

a sum certain should

the

United

States

As

have been
with

some

specificity, irrespective of demands sent to joint or several

or other tortfeasors.

-99

Coska claims that

claim would

well-made

affirming the

allow "mere technicalities" to

claim.

investigate

All

the claim,

of

letters.

rather

form in

the

It is

which

her

bar an otherwise

information

Coska argues,

demand packet and

than

the

dismissal of

necessary

was contained

to

in the

the information available

it

is

presented that

is

crucial. See,
___

e.g., Corte-Real,
____ __________

Santiago-Ramirez,
________________

984 F.2d at

949 F.2d

19 n.2.

at 486; see
___

However,

also
____

there was

essential information missing from the packet and the letters

-- namely, the amount of damages being sought from the United

States.

Cf.
___

requirement

Santiago-Ramirez,
________________

of 28

U.S.C.

2675

includes sufficient information to

amount of damages sought).8

amount in

any

of

the

984

is

F.2d

at

19

satisfied when

(notice

claim

investigate claim and the

Had the plaintiff included that

correspondence or

even

returned

completed SF-95, which includes boxes for personal injury and

total damages,

outcome.

the situation

may have produced

a different

See, e.g., Corte-Real, 949 F.2d at 486-87.

___ ____ __________

This is

not a case of exalting form over substance, nor is

of "bureaucratic overkill."

it a case

Cf. id. at 486.

___ ___

____________________

8.

We

reject

effectively

Coska's

merged the

argument

that

statutory notice

the

district

court

requirement of

U.S.C.

2675 and the presentment requirement of 28 C.F.R.

14.2(a).

This is a matter of subject matter jurisdiction.

28

federal court has no jurisdiction to entertain a suit against

the

United

writing,
F.2d

States

unless

claimant

a claim stating a sum certain.

has

presented,

in

See Corte-Real, 949

___ __________

at 485; Gonzalez-Bernal v. United States, 907 F.2d 246,

_______________
_____________

248 (1st Cir. 1990).

-1010

Lastly,

impermissibly

for

sum

relied on

certain

limitations

period

addressing whether

even without

made

fails.

Coska

after

in

the

district

limitations period

her

court

repeated requests

expiration

of

decision.

Coska waived this argument,

government

of

the

to its

the consideration of

the

shortcomings

after

coming

The district court's

the

that

the government's

made

requests made after the

that

argues

the one

passed,

the

Without

we find that

to two

requests

Coska's

claim

finding hardly "rested" on

the

limitations period; it observed only

gave

Coska

submissions

adequate

and

that

notice

of

the

"perhaps"

the

outcome would be different had such notice not been given.

Affirmed.
Affirmed
________

-1111