Estate of Arthur Lee Coleman, Jr. et al v. Scott et al

Filing 209

ORDER GRANTING 145 Motion to Dismiss for Lack of Jurisdiction. Count I of the Fourth Amended Complaint is DISMISSED. Because thereare no additional claims against Defendant, United States of America, the clerk is DIRECTED to terminate the United States as a party to this action. Signed by Judge Roy B. Dalton, Jr. on 4/17/2012. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROCHELLE Z. CATZ,
personal representative of the
ESTATE OF ARTHUR LEE COLEMAN,
Plaintiff,
vs.

Case No. 2:10-cv-105-J-37SPC

UNITED STATES OF AMERICA,
Defendant.

ORDER
This cause is before the Court on the following:
1)

United States Second Renewed Motion to Dismiss Plaintiff’s Federal Tort
Claims Act (“FTCA”) Claims for Lack of Jurisdiction (Doc. No. 145)
(“Renewed Motion”), filed on September 9, 2011;1 and

2)

Response to the United States’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction (Doc. 145) (Doc. No. 149), filed on September 19, 2011.
BACKGROUND

On January 26, 2009, Arthur Lee Coleman was fatally shot by a law enforcement
officer while operating a vehicle. (Doc. No. 142, ¶¶ 31, 35.) On December 6, 2009, Mr.
Coleman’s personal representative, Rochelle Z. Catz, filed an administrative claim to the
“U.S. Marshal’s Office, Department of Justice pursuant to their instructions published on
the internet.” (Id. at ¶ 2a.) Approximately two months later, on February 17, 2010, Ms.
Catz filed the initial Complaint (Doc. No. 1) in this action.
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Pursuant to the United States’s request, the Court also considered the arguments
set forth in Document Numbers 108 and 112. (See Doc. No. 145, p. 1 n.1.)

On September 1, 2010, Ms. Catz filed her Second Amended Complaint (Doc. No.
59). On May 18, 2011, the United States filed its Motion to Dismiss Plaintiff’s Claims
Pursuant to FTCA for Lack of Jurisdiction. (Doc. No. 108.) Ms. Catz filed a Response to
the United States’s Motion to Dismiss for Lack of Subject Matter Jurisdiction on May 26,
2011. (Doc. No. 109.) On June 30, 2011, the United States filed a Reply to Plaintiff’s
Response to Motion to Dismiss Plaintiff’s Claims Pursuant to FTCA for Lack of Jurisdiction.
(Doc. No. 112.)
On July 21, 2011, the Honorable Charlene Edwards Honeywell (“Judge Honeywell”)
entered an Order dismissing Ms. Catz’s Second Amended Complaint, in which she stated:
In its motion to dismiss, the United States argues that the Court lacks
jurisdiction over Plaintiff’s Federal Tort Claims Act counts due to Plaintiff’s
failure to exhaust its administrative remedies prior to filing this suit (Dkt. 108).
This argument appears to be well taken. It is clear that the instant action was
commenced on February 17, 2010 and that Plaintiff’s filing of the Second
Amended Complaint did not commence a new action. However, the purpose
of this Order is to clean up the Second Amended Complaint so that the
defendants and the Court can identify the claims that have been alleged.
Therefore, if needed, this issue of failure to exhaust administrative\ remedies
will be addressed in a separate order.

(Doc. No. 113-1, p. 11.)
On August 11, 2011, Ms. Catz filed a Third Amended Complaint (Doc. No. 119),
which was superseded by her Fourth Amended Complaint, filed on September 8, 2011
(Doc. No. 142). On September 9, 2011, the United States of America filed its Renewed
Motion. (Doc. No. 145.) Ms. Catz filed her Response on September 19, 2011. (Doc. No.
149.) The case was transferred to the undersigned on February 14, 2012.
DISCUSSION
In its Renewed Motion (Doc. No. 145), the United States argues that Ms. Catz’s
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FTCA claims must be dismissed because she failed to follow the procedures set forth in
28 U.S.C. § 2675(a), which states:
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. The provisions of this subsection shall not apply to
such claims as may be asserted under the Federal Rules of Civil Procedure
by third party complaint, cross-claim, or counterclaim.

The United States maintains that because Ms. Catz filed the initial Complaint (Doc.
No. 1) “just two months after submitting the administrative claim to the United States
Marshals Service,” this Court does not have subject matter jurisdiction to hear the claims
brought against the United States pursuant to the FTCA. (Doc. No. 145, pp. 1-2.)
A federal court lacks subject matter jurisdiction over an FTCA claim unless the
claimant follows 28 U.S.C. § 2675(a)’s procedures. See Davis v. United States, 272 F.
App’x 863, 866 (11th Cir. 2008). Both Supreme Court and Eleventh Circuit precedent
make clear that even if a litigant’s administrative claims are ultimately denied by the
appropriate Federal agency, if he or she “prematurely files” an FTCA complaint, the district
court is divested subject matter jurisdiction. See id. (finding that because the Bureau of
Prison had not “finally denied” Davis’s administrative claim in writing at the time Davis filed
his suit in federal court, the district court did not err in dismissing the FTCA claims for lack
of subject matter jurisdiction, even though Davis’s claims were exhausted five months after
the action was filed); see also Turner v. United States, 514 F.3d 1194, 1201 (11th Cir.
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2008) (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)) (“Because the FTCA
bars claimants from bringing suit in federal court until they have exhausted their
administrative remedies, the district court lacks subject matter jurisdiction over prematurely
filed suits.”)
Because Ms. Catz filed the initial Complaint (Doc. No. 1) in this Court before the
U.S. Marshal’s Office “finally denied” the administrative claim she filed on behalf of Mr.
Coleman’s estate and before the six month period described in 28 U.S.C. § 2675(a) had
lapsed, this Court is barred from hearing the FTCA claims. See McNeil, 508 U.S. at 107.
As such, the United States’s Renewed Motion (Doc. No. 109) is due to be granted.
CONCLUSION
It is hereby ORDERED AND ADJUDGED:
1)

United States Second Renewed Motion to Dismiss Plaintiff’s Federal Tort
Claims Act Claims for Lack of Jurisdiction (Doc. No. 145) is GRANTED; and

2)

Count I of the Fourth Amended Complaint is DISMISSED. Because there
are no additional claims against Defendant, United States of America, the
clerk is DIRECTED to terminate the United States as a party to this action.

DONE AND ORDERED in Chambers in Jacksonville, Florida, on April 17, 2012.

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Copies:
Counsel of Record

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