Brokaw et al v. United States of America

Filing 14

ORDER granting 9 Motion to Dismiss. Plaintiff Deanna Brokaw's loss of consortium claim is dismissed for lack of subject matter jurisdiction. The Rule 16 Case Management Conference set for 1/30/2014 at 4:30 PM will be held as scheduled. Signed by Judge David G Campbell on 1/30/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony G. Brokaw, husband, et al.,
Plaintiffs,

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No. CV13-1726 PHX DGC
ORDER

v.
United States of America,
Defendant.

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Defendant United States has filed a motion to dismiss the claim of Plaintiff

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Deanna Brokaw. Doc. 9. The motion is fully briefed and no party has requested oral

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argument. For the reasons that follow, the Court will grant the motion.

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I.

Background.

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This case arises from an automobile accident involving Plaintiff Anthony Brokaw

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and an employee of the Federal Bureau of Investigation. Doc 9 at 2:3-5. Mr. Brokaw

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filed an administrative claim for the injuries caused by the accident. Doc 9 at 2:6-7. The

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administrative claim lists no other claimants. Doc. 9, Ex. 1. Plaintiff Deanna Brokaw did

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not file a separate administrative claim. Doc 9 at 2:10-11.

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Plaintiffs filed suit under the Federal Tort Claims Act (“FTCA”). Doc 5 at 2:7-8.

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Plaintiffs seek damages for Mrs. Brokaw for loss of company, companionship, and

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consortium. Doc 5 at 4:9-12. Defendant filed a motion to dismiss Mrs. Brokaw’s claims

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for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of

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Civil Procedure. Doc 9 at 1:20-24.

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II.

Analysis.

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The defense of lack of subject matter jurisdiction may be raised at any time by the

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parties or the court. See Fed. R. Civ. P. 12(h)(3); Augustine v. United States, 704 F.2d

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1074, 1077 (9th Cir. 1983). In resolving a motion to dismiss for lack of subject matter

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jurisdiction, the Court is not limited to allegations in the pleadings if the jurisdictional

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issue is separable from the merits of the case. Roberts v. Corrothers, 812 F.2d 1173,

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1177 (9th Cir. 1987). The Court is “free to hear evidence regarding jurisdiction and to

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rule on that issue prior to trial, resolving factual disputes where necessary.” Augustine,

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704 F.2d at 1077; see Roberts, 812 F.2d at 1177.

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Defendant contends that the Court lacks subject matter jurisdiction over Mrs.

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Brokaw’s claims because she failed to exhaust her administrative remedies as required by

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the FTCA. Doc 9 at 1:22-25. Plaintiffs argue that Mrs. Brokaw did not need to file a

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separate administrative claim because a loss of consortium claim is derivative in Arizona

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and included under the injured party’s claim. Doc. 11 at 1:24-2:1. Plaintiffs do not

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dispute that Mrs. Brokaw failed to file an administrative claim. Doc 11 at 2:8-9.

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The FTCA authorizes private tort actions against the United States when the

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claimant has exhausted her administrative remedies. Jerves v. U.S., 966 F.2d 517, 518

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(9th Cir. 1992). “An action shall not be instituted upon a claim against the United States

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for money damages for injury . . . unless the claimant shall have first presented the claim

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to the appropriate Federal agency and his claim shall have been finally denied by the

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agency[.]” 28 U.S.C. § 2675(a). Administrative exhaustion of claims is a prerequisite

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for district court jurisdiction. McNeil v. U.S., 508 U.S. 106, 113 (1980).

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The derivative nature of Mrs. Brokaw’s claim does not excuse her failure to

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comply with the FTCA exhaustion requirements. In Johnson v. United States, 704 F.2d

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1431, 1442 (9th Cir. 1983), the court upheld the dismissal of a spouse’s claim for loss of

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consortium because she failed to exhaust FTCA claim procedures. The Ninth Circuit

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explained that “[t]he primary goal of the procedures established by the FTCA is to

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facilitate satisfactory administrative settlements,” and the spouse’s “failure to file a claim
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for loss of consortium precluded the possibility of any such settlement.” Id. The same is

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true here. Whether derivative or not, Mrs. Brokaw’s loss of consortium claim was not

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identified in the claim form submitted by Mr. Brokaw and Mrs. Brokaw was not

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identified as a claimant. See Doc. 9, Ex. 1. As a result, the United States was afforded

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no opportunity to consider or resolve Mrs. Brokaw’s claim before litigation, frustrating

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the goal of the FTCA exhaustion requirement. This Court has previously dismissed a

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loss of consortium claim for failure to exhaust FTCA procedures, see Jarrett v. United

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States, CV 05-78 TUC DCB, 2006 WL 571629, *3 (D. Ariz. Mar. 7, 2006), as have other

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district courts within the Ninth Circuit, see Dugan v. United States, C06-5705RBL, 2008

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WL 65504, *1 (W.D. Wash. Jan. 4, 2008).

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IT IS ORDERED that the Defendant’s motion to dismiss (Doc. 9) is granted.

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Plaintiff Deanna Brokaw’s loss of consortium claim is dismissed for lack of subject

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matter jurisdiction.

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Dated this 30th day of January, 2014.

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