Peterson v. Moss

Filing 22

ORDER Granting the United States' Motion to Dismiss 14 . This case is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to close the case and tax costs against plaintiff under Fed. R.Civ. P. 54(d), by Magistrate Judge Michael J. Watanabe on 5/7/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00331-MJW
TREVOR PETERSON,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
ORDER GRANTING THE UNITED STATES’ MOTION TO DISMISS (Docket No. 14)

Upon the consent of all parties, this case has been referred for all purposes to
the undersigned under 28 U.S.C. § 636(c). (Docket Nos. 6 & 7.) Now pending is
defendant’s Motion to Dismiss. (Docket No. 14.) The Court has reviewed the parties’
filings (Docket Nos. 14 & 17), taken judicial notice of the court’s entire file in this case,
and considered the relevant Federal Rules of Civil Procedure, statutes, and case law.
Now being fully informed, the Court GRANTS defendant’s motion and DISMISSES this
case without prejudice.
Background
On March 31, 2015, the Court granted then-Defendant Sterling Moss’s motion to
substitute the United States of America as defendant, on the ground that plaintiff’s case
sounds in tort, was brought against an employee of the federal government acting within
the scope of his or her employment, and is therefore governed by the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. (Docket No. 13.)
Later that day, the United States moved to dismiss for lack of subject-matter

jurisdiction, arguing that plaintiff failed to exhaust his FTCA administrative remedies as
required by 28 U.S.C. § 2675. (Docket No. 14.)
Discussion
Under Fed. R. Civ. P. 12(b)(1), the Court must dismiss any case over which it
does not have subject-matter jurisdiction. In resolving a motion like this, the Court may
consider affidavits and other evidence limited to the disputed jurisdictional facts, without
converting the motion to one for summary judgment. Holt v. United States, 46 F.3d
1000, 1003 (10th Cir. 1995).
The government included an affidavit attesting that the relevant administrative
agency could find no record of any FTCA claim filed by plaintiff. (Docket No. 14-1.) In
plaintiff’s response to the motion, plaintiff argued that the case should continue because
he filed an FTCA claim with the relevant agency on April 13, 2015. (Docket No. 17.)
Because this case was filed in February 2015, plaintiff’s response impliedly concedes
that he did not file any administrative claims prior to filing his complaint, and the Court
finds as a fact that he did not.
Further, plaintiff’s argument that his late-filed FTCA claim form should save his
case from dismissal is erroneous. The Supreme Court explicitly decided in 1993 that
the administrative remedies must be exhausted before filing a lawsuit, not after. McNeil
v. United States, 508 U.S. 106 (1993); D’Addabbo v. United States, 316 F. App’x 722,
725 (10th Cir. 2008). The Court therefore concludes that it lacks subject-matter
jurisdiction to hear this case. Cf. Pretlow v. Garrison, 420 F. App’x 798, 804 (10th Cir.
2011) (dismissing unexhausted claims for lack of subject-matter jurisdiction where, as
here, the case was removed from state court under the federal-defense doctrine of

Mesa v. California, 489 U.S. 121 (1989)).
Accordingly, it is ORDERED that the United States’ Motion to Dismiss (Docket
No. 14) is GRANTED and that this case is DISMISSED WITHOUT PREJUDICE. The
Clerk of Court is directed to close the case and tax costs against plaintiff under Fed. R.
Civ. P. 54(d).

Done and signed this 7th day of May, 2015.
BY THE COURT:
s/Michael J. Watanabe
MICHAEL J. WATANABE
United States Magistrate Judge