Wood et al v. United States of America, The

Filing 12

ORDER granting #10 Motion to Dismiss Case (CASE DISMISSED WITHOUT PREJUDICE). Signed by Honorable Harry F. Barnes on February 11, 2010. (cap)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS T E X A R K A N A DIVISION

H E A T H E R WOOD and BRENT WOOD

PLAINTIFFS

VS.

C A S E NO. 09-CV-4066

U N IT E D STATES OF AMERICA

DEFENDANT

ORDER B e fo r e the Court is a Motion to Dismiss filed on behalf of Defendant United States of A m e ric a . (Doc. No. 10). The Plaintiffs have not responded to the motion and the time to respond h a s passed. The Court finds the matter ripe for consideration. Plaintiffs filed this action against the United States under the Federal Tort Claims Act, 28 U .S .C . §§ 2671-2680. In their Amended Complaint, Plaintiffs state that they are residents of A rk a n s a s , within the jurisdiction of this Court. They also state that the tortuous conduct alleged in th e complaint occurred at Womack Army Medical Center, Fort Bragg, North Carolina. In response to the complaint, the United States asks that this action be dismissed pursuant to Fed. R. Civ. P. 1 2 (b )(3 ) (improper venue) and 12(b)(5) (insufficient service of process). The United States first argues that this case should be dismissed because it was filed in the w ro n g district. Any civil action on a tort claim against the United States may be prosecuted only in th e judicial district where the plaintiff resides or where the act complained of occurred. 28 U.S.C. § 1402(b). In this case, the Plaintiffs claim that they are residents of the Western District of A rk a n s a s . However, evidence before the Court indicates that Plaintiffs reside in Cabot, Arkansas, w h ic h is in the Eastern District of Arkansas. Plaintiffs also claim that the tortuous act upon which

this case is based occurred at the Womack Army Medical Center in North Carolina. This case should h a v e been filed in either the Eastern District of Arkansas, where the Plaintiffs reside, or the Eastern D is tric t of North Carolina, where the act occurred. Venue is not proper in this Court because it sits in the Western District of Arkansas. If a case is filed in the wrong venue, the district court shall dismiss the case, or if it be in the in te re s t of justice, transfer the case to any district in which it could have been brought. 28 U.S.C. § 1406(a). Accordingly, since this case was filed in the wrong district, the Court must either dismiss th e case or transfer it to a district in which it could have been brought. The United States also argues that this case should be dismissed because it was not properly s e rv e d by the Plaintiffs. In order to serve the United States, a party must deliver a copy of the s u m m o n s and the complaint to the United States attorney for the district where the action is brought, o r to an assistant United States attorney or a clerical employee whom the United States attorney has d e s ign a te d to receive service ... . Fed. R. Civ. P. 4(i). In this case, the Plaintiffs left a copy of the s u m m o n s and complaint in the office of the United States Attorney for the Eastern District of Texas. This is not sufficient to serve the United States Attorney for the Western District of Arkansas or her d e s ign e e . Thus, the Court finds that the United States was not properly served in this case. Based upon the above, the Court finds that Defendant United States of America's Motion to D is m is s should be and hereby is granted. Accordingly, the Plaintiffs' Amended Complaint is d is m is s e d without prejudice. IT IS SO ORDERED, this 11th day of February, 2010. /s/Harry F. Barnes Hon. Harry F. Barnes U n ite d States District Judge