federal agencies, seeking damages for amounts paid in settlement and defense costs in connection with 766 cases brought against GAF by various individuals exposed to asbestos fibers. Subsequently, on December 30, 1982, GAF submitted an amended notice of claim covering an additional 239 underlying cases, and correcting a typographical error contained in the original notice of claim. The correction of the typographical error changed an "s" to a "j" in 637 of the 766 individual case summaries attached to the original notice of claim. Instead of reading "Name of insured party," the corrected line read "Name of injured party."
Subsequently, on May 6, 1983, -- more than six months after the filing of the original notice of claim but less than six months after the filing of the amended notice of claim -- GAF filed its complaint here under the FTCA. The complaint explicitly relies upon the original Notice of Claim of November 2, 1982, as its administrative predicate, and, of necessity, does not seek recovery for any of the claims that were added in the amended notice of claim of December 30, 1982. It states that the government's failure to make final disposition of the November notice within six months gave GAF the option to file suit.
GAF alleges a number of different theories in the complaint to justify recovery from the United States. Plaintiff states that the 766 claimants were employed by the United States and government contractors when exposed to asbestos. It adds that the United States specified that asbestos be used in the insulation products being installed; the United States knew of the hazards of asbestos yet failed to provide a safe work-place environment; it sold asbestos to GAF without warning GAF of asbestos' dangers; and that it induced or encouraged GAF to increase its production of asbestos products.
Despite these various theories of liability, the complaint treats all of the 766 claimants indiscriminately in the complaint. GAF does not treat any of the claims individually, or sort out the theories of liability and apply them to specific underlying claims. Rather, GAF's complaint speaks of the claims only as a group, despite the fact that the claims arise from individuals scattered across the country who worked for different employers.
The complaint seeks $2,050,369.71 for the full amount of all settlements paid by GAF to claimants in the 766 asbestos cases, as well as $1,504,125.28 for all legal costs associated with settlement and defense of the cases.
On August 15, 1983, the government filed its motion to dismiss, in which it makes essentially two arguments. First, that the six months that GAF is required to wait before filing suit must be calculated from the amended notice of claim, not the original. Since less than six months elapsed from the submission of the amended notice of claim on December 30, 1982, to the filing of the complaint, the government argues that this Court lacks subject matter jurisdiction. Second, the government argues that the notice of claim, be it the original or the amended notice, fails to provide the minimum amount of information necessary to constitute a valid notice of claim.
The Court rejects the government's first argument but accepts the second. As shown below, the proper date for reckoning the six months is November 2, 1983, the date of the original notice of claim. Consequently, GAF's lawsuit is not premature. However, the Court must dismiss the complaint for lack of subject matter jurisdiction for GAF's failure to provide sufficiently detailed information in its notice of claim.
The administrative filing requirements of section 2675 of the FTCA are jurisdictional and cannot be waived. E.g., Lurch v. United States, 719 F.2d 333, 335 n. 3 (10th Cir.1983), cert. denied, 466 U.S. 927, 104 S. Ct. 1710, 80 L. Ed. 2d 182 (1984); Richman v. United States, 709 F.2d 122, 124 (1st Cir.1983); Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983). A complaint filed against the United States prior to the expiration of section 2675(a)'s six-month period without a formal denial by the agency must be dismissed for lack of subject matter jurisdiction. E.g., Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir.1981). Furthermore, if the complaint is prematurely filed, a court cannot wait until the six-month period elapses and then assert jurisdiction; it may assert jurisdiction over a case only where the complaint is filed after the six-month period. Id.
Under the FTCA's regulations if the claimant files a timely amendment to the administrative claim, then the six months run not from the original notice of claim but rather from the date of the amendment.
Upon the timely filing of an amendment to a pending claim, the agency shall have six months in which to make a final disposition of the claim as amended and the claimant's option under 28 U.S.C. § 2675(a) shall not accrue until six months after the filing of the amendment.