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)

Download PDF
    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Anthony G. Brokaw, husband, et al., Plaintiffs, 10 11 12 No. CV13-1726 PHX DGC ORDER v. United States of America, Defendant. 13 14 15 Defendant United States has filed a motion to dismiss the claim of Plaintiff 16 Deanna Brokaw. Doc. 9. The motion is fully briefed and no party has requested oral 17 argument. For the reasons that follow, the Court will grant the motion. 18 I. Background. 19 This case arises from an automobile accident involving Plaintiff Anthony Brokaw 20 and an employee of the Federal Bureau of Investigation. Doc 9 at 2:3-5. Mr. Brokaw 21 filed an administrative claim for the injuries caused by the accident. Doc 9 at 2:6-7. The 22 administrative claim lists no other claimants. Doc. 9, Ex. 1. Plaintiff Deanna Brokaw did 23 not file a separate administrative claim. Doc 9 at 2:10-11. 24 Plaintiffs filed suit under the Federal Tort Claims Act (“FTCA”). Doc 5 at 2:7-8. 25 Plaintiffs seek damages for Mrs. Brokaw for loss of company, companionship, and 26 consortium. Doc 5 at 4:9-12. Defendant filed a motion to dismiss Mrs. Brokaw’s claims 27 for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of 28 Civil Procedure. Doc 9 at 1:20-24.     1 II. Analysis. 2 The defense of lack of subject matter jurisdiction may be raised at any time by the 3 parties or the court. See Fed. R. Civ. P. 12(h)(3); Augustine v. United States, 704 F.2d 4 1074, 1077 (9th Cir. 1983). In resolving a motion to dismiss for lack of subject matter 5 jurisdiction, the Court is not limited to allegations in the pleadings if the jurisdictional 6 issue is separable from the merits of the case. Roberts v. Corrothers, 812 F.2d 1173, 7 1177 (9th Cir. 1987). The Court is “free to hear evidence regarding jurisdiction and to 8 rule on that issue prior to trial, resolving factual disputes where necessary.” Augustine, 9 704 F.2d at 1077; see Roberts, 812 F.2d at 1177. 10 Defendant contends that the Court lacks subject matter jurisdiction over Mrs. 11 Brokaw’s claims because she failed to exhaust her administrative remedies as required by 12 the FTCA. Doc 9 at 1:22-25. Plaintiffs argue that Mrs. Brokaw did not need to file a 13 separate administrative claim because a loss of consortium claim is derivative in Arizona 14 and included under the injured party’s claim. Doc. 11 at 1:24-2:1. Plaintiffs do not 15 dispute that Mrs. Brokaw failed to file an administrative claim. Doc 11 at 2:8-9. 16 The FTCA authorizes private tort actions against the United States when the 17 claimant has exhausted her administrative remedies. Jerves v. U.S., 966 F.2d 517, 518 18 (9th Cir. 1992). “An action shall not be instituted upon a claim against the United States 19 for money damages for injury . . . unless the claimant shall have first presented the claim 20 to the appropriate Federal agency and his claim shall have been finally denied by the 21 agency[.]” 28 U.S.C. § 2675(a). Administrative exhaustion of claims is a prerequisite 22 for district court jurisdiction. McNeil v. U.S., 508 U.S. 106, 113 (1980). 23 The derivative nature of Mrs. Brokaw’s claim does not excuse her failure to 24 comply with the FTCA exhaustion requirements. In Johnson v. United States, 704 F.2d 25 1431, 1442 (9th Cir. 1983), the court upheld the dismissal of a spouse’s claim for loss of 26 consortium because she failed to exhaust FTCA claim procedures. The Ninth Circuit 27 explained that “[t]he primary goal of the procedures established by the FTCA is to 28 facilitate satisfactory administrative settlements,” and the spouse’s “failure to file a claim ‐ 2 ‐      1 for loss of consortium precluded the possibility of any such settlement.” Id. The same is 2 true here. Whether derivative or not, Mrs. Brokaw’s loss of consortium claim was not 3 identified in the claim form submitted by Mr. Brokaw and Mrs. Brokaw was not 4 identified as a claimant. See Doc. 9, Ex. 1. As a result, the United States was afforded 5 no opportunity to consider or resolve Mrs. Brokaw’s claim before litigation, frustrating 6 the goal of the FTCA exhaustion requirement. This Court has previously dismissed a 7 loss of consortium claim for failure to exhaust FTCA procedures, see Jarrett v. United 8 States, CV 05-78 TUC DCB, 2006 WL 571629, *3 (D. Ariz. Mar. 7, 2006), as have other 9 district courts within the Ninth Circuit, see Dugan v. United States, C06-5705RBL, 2008 10 WL 65504, *1 (W.D. Wash. Jan. 4, 2008). 11 IT IS ORDERED that the Defendant’s motion to dismiss (Doc. 9) is granted. 12 Plaintiff Deanna Brokaw’s loss of consortium claim is dismissed for lack of subject 13 matter jurisdiction. 14 Dated this 30th day of January, 2014. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‐ 3 ‐ 

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?