Unreported / Non-Citable
Background
On February 23, 2024, plaintiff Brevin Taft was rear-ended by Alexander Schaps, allegedly causing neck and back injuries. Taft sued Schaps in California state court on January 27, 2026. Schaps removed the action to federal court on August 5, 2026.
The United States filed a notice of substitution for Schaps on August 6, 2026, certifying he was acting within the scope of his employment with the Naval Sea Systems Command. The court accepted the substitution on August 10, 2026. The United States moved to dismiss on August 12, 2026, arguing insufficient service of process and failure to exhaust administrative remedies under the Federal Tort Claims Act (FTCA). Taft opposed, and the government replied.
The Court’s Holding
The court denied the motion to dismiss based on insufficient service. It found service on Schaps in state court complied with California Code of Civil Procedure § 415.40, and Schaps was deemed properly served upon removal. Service on the United States was excused under the Borzeka factors because the government had actual notice, suffered no prejudice, and dismissal would severely prejudice Taft.
However, the court granted the motion to dismiss for lack of subject-matter jurisdiction because Taft failed to exhaust administrative remedies under 28 U.S.C. § 2675(a). Although the first prong of the savings provision in 28 U.S.C.
§ 2679(d)(5) was satisfied (the state action was filed within the two-year limitations period), Taft did not present an administrative claim to the Navy within 60 days of dismissal as required by the second prong. The court also noted the negligence complaint was facially insufficient under Rule 12(b)(6) but dismissed solely on exhaustion grounds. The dismissal is without prejudice; Taft has 60 days from dismissal to file an administrative claim with the Navy and may then return to federal court.
Key Takeaways
- Service on a federal employee in state court before removal, if valid under state law, is deemed proper service in the removed action; the United States need not be separately served at the outset.
- The Borzeka equitable factors can excuse strict compliance with Rule 4(i) service requirements on the United States when the government has actual notice and the plaintiff would be severely prejudiced by dismissal.
- FTCA exhaustion under 28 U.S.C. § 2675(a) is a jurisdictional prerequisite; failure to present a written administrative claim to the appropriate agency bars suit.
- The savings clause in 28 U.S.C. § 2679(d)(5) requires both that the state-court filing was timely and that the administrative claim be presented within 60 days of dismissal; satisfying only the first prong is insufficient.
- Dismissal for failure to exhaust FTCA administrative remedies is without prejudice and without leave to amend because the defect cannot be cured by amending the complaint.
Why It Matters
This order illustrates the procedural interplay between removal, substitution under the Westfall Act, and FTCA exhaustion requirements. It confirms that a plaintiff who sues a federal employee in state court within the limitations period satisfies the timeliness prong of § 2679(d)(5), but must still present an administrative claim within 60 days of dismissal to preserve the action. The court’s application of Borzeka to excuse service on the United States after substitution provides a practical safeguard for plaintiffs caught off-guard by the government’s late entry.
The ruling also reinforces that FTCA exhaustion is jurisdictional and cannot be cured by amendment, directing the plaintiff to the administrative process before any return to court. The order maps a common FTCA trap after the government substitutes itself for an employee. Timely filing and valid state-court service do not replace the administrative presentment required by section 2675(a).
Counsel must also track the separate 60-day window in the Westfall Act savings provision after dismissal. The court’s service analysis protected the plaintiff from a technical failure once the government had notice and suffered no prejudice, but equitable treatment of service could not create subject-matter jurisdiction where presentment was missing. Dismissal was without prejudice and without leave to amend because amendment could not cure the unexhausted claim. The court expressly advised Taft that he had 60 days after dismissal to present an administrative claim to the appropriate federal agency.