O'Conner v. United States of America et al

Filing 23

DISMISSAL ORDER signed by Judge Garland E. Burrell, Jr., on 5/31/13 ORDERING that Defendant's dismissal motion is granted, and this action is dismissed with prejudice for lack of subject matter jurisdiction. CASE CLOSED (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CYNTHIA O’CONNER,
Plaintiff,

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v.

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UNITED STATES OF AMERICA,

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Defendant.
________________________________

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2:11-cv-02803-GEB-CMK
DISMISSAL ORDER

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Defendant

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seeks

dismissal

with

prejudice

of

Plaintiff’s

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Complaint for lack of subject matter jurisdiction under Federal Rule of

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Civil Procedure (“Rule”) 12(h)(3), arguing Plaintiff failed to satisfy

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certain jurisdictional requirements of the Federal Tort Claims Act

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(“FTCA”).

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Specifically, Defendant argues:

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(Def.’s

Mot.

to

Dismiss

(“Def.’s

Mot.”),

ECF

No.

16.)

[P]laintiff prematurely filed her complaint less
than six months after presenting her administrative
tort claim to the United States Department of
Health and Human Services (“HHS”), in violation of
28 U.S.C. § 2675(a). Dismissal should be with
prejudice because plaintiff did not file a timely
complaint against the United States within six
months after HHS denied her administrative tort
claim as required by 28 U.S.C. § 2401(b).
(Def.’s Mot. 2:2-6.)

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Plaintiff filed a Statement of Non-Opposition in response to

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Defendant’s dismissal motion in which she states: “Plaintiff, CYNTHIA

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O’CONNER, by and through her attorney of record herein, herewith states

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that she does not intend to oppose Defendants’ [sic] Motion to Dismiss

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for Lack of Subject [Matter] Jurisdiction . . . , and hereby submits

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that she will file no opposition to the same.” (Pl.’s Stmt. of Non-

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Opp’n, ECF No. 21.)

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I. FACTUAL SUMMARY

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The following facts are taken from Plaintiff’s Complaint and

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exhibits attached thereto, and Exhibit D to Defendant’s dismissal

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motion.1

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Plaintiff

mailed

an

administrative

tort

claim

to

the

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Department of Health and Human Services (“HHS”) on May 16, 2011, which

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HHS received on May 25, 2011. (Compl. ¶¶ 3–4; id., Exs. 1, 2, ECF No.

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2.) Plaintiff filed her Complaint on October 24, 2011. (Compl.) HHS

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denied Plaintiff’s administrative tort claim on January 26, 2012, in a

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letter that included the following statement: “[I]f [Plaintiff] is

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dissatisfied with this determination, she is entitled to file suit

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against the United States in the appropriate federal district court

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within six (6) months from the date of the mailing of this determination

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(28 U.S.C. § 2401(b)).” (Def.’s Mot., Ex. D.) Plaintiff did not file a

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lawsuit against the United States as authorized by HHS in the January

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26, 2012 letter.

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“In resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint without converting the
motion into a motion for summary judgment.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing Savage v. Glendale
Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)). “Thus, the
Court is not restricted to the face of the pleadings and ‘may review any
evidence, such as affidavits and testimony, to resolve factual disputes
concerning the existence of jurisdiction.’” Coble v. DeRosia, 823 F.
Supp. 2d 1048, 1050 (E.D. Cal. 2011) (quoting McCarthy v. United States,
850 F.2d 558, 569 (9th Cir. 1988)).
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II. DISCUSSION

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Section 2675(a) of the FTCA provides, in relevant part:

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An action shall not be instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or
employment, unless the claimant shall have first
presented the claim to the appropriate Federal
agency and his claim shall have been finally denied
by the agency in writing and sent by certified or
registered mail. The failure of an agency to make
final disposition of a claim within six months
after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final
denial of the claim for purposes of this section.

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“[T]he statutory procedure is clear. A tort claimant may not commence

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proceedings in court against the United States without first filing her

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claim

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conclusive denial of the claim from the agency or waiting for six months

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to elapse without a final disposition of the claim being made.” Jerves

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v. United States, 966 F.2d 517, 519 (9th Cir. 1992) (internal quotation

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marks

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jurisdictional in nature and may not be waived.’” Id. (quoting Burns v.

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United States, 764 F.2d 722, 724 (9th Cir. 1985)).

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with

an

omitted).

appropriate

“‘[The]

federal

claim

agency

and

requirement

of

either

receiving

section

2675

a

is

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Further, once a federal agency denies an administrative tort

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claim, 18 U.S.C. § 2401(b) requires the claimant to file suit “within

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six months after the date of mailing, by certified or registered mail,

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of notice of [the] final denial of the claim by the agency.” “A district

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court does not have jurisdiction to hear a tort claim against the United

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States unless the claimant files a complaint in federal court within six

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months after final agency decision.” Goodman v. United States, 298 F.3d

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1048, 1053 (9th Cir. 2002) (citing 28 U.S.C. § 2401(b)).

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Plaintiff’s October 24, 2011 Complaint was prematurely filed

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since

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administrative tort claim. Further, Plaintiff failed to file a lawsuit

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within six months after HHS denied her administrative tort claim in

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writing on January 26, 2012. Therefore, Defendant’s dismissal motion is

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granted, and this action is dismissed with prejudice for lack of subject

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matter jurisdiction. See McNeil v. United States, 508 U.S. 106, 110-12

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(1993) (affirming dismissal of pro se complaint filed prematurely under

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the FTCA where plaintiff did not commence a new action after receiving

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notice of the federal agency’s denial of his administrative tort claim).

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Dated:

it

was

filed

less

than

six

months

after

HHS

received

May 31, 2013

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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her