HICKMAN v. BANK OF AMERICA, N.A. et al

Filing 33

ORDER granting Defendant's 15 Motion to Dismiss for Lack of Jurisdiction; and granting 15 Motion to Dismiss for Failure to State a Claim; and all claims asserted against HUD are DISMISSED with prejudice. (See Order). Signed by Judge Tanya Walton Pratt on 4/11/2014. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANTHONY HICKMAN,
Plaintiff,
v.
BANK OF AMERICA, N.A.,
U.S. DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, and
BRUCE EVERLY,
Defendants.

)
)
)
)
) Case No. 1:13-cv-01517-TWP-DKL
)
)
)
)
)
)
)

ENTRY ON MOTION TO DISMISS
This matter is before the Court on Defendant United States Department of Housing and
Urban Development’s (“HUD”) Motion to Dismiss for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon which relief may
be granted under Rule 12(b)(6) (Dkt. 15). For the reasons stated below, HUD’s Motion is
GRANTED.
I. FACTUAL BACKGROUND
Plaintiff Anthony Hickman (“Mr. Hickman”) filed a Complaint against Defendants Bank
of America, N.A., HUD, and Bruce Everly, after he allegedly encountered problems with a
property he purchased in Hendricks County, Indiana, using HUD’s 203(k) loan program.
Specifically, Mr. Hickman alleges that HUD failed to properly supervise Bank of America in
administering HUD’s 203(k) loan program, and in doing so, HUD breached its “fiduciary duty”
owed to him. HUD argues that because Mr. Hickman failed to exhaust his administrative

remedies prior to filing suit against them, and also has failed to state a claim for negligent
supervision, his claims against them should be dismissed.
Mr. Hickman has not filed any opposition to HUD’s Motion.
II.

DISCUSSION

As an initial matter, the Court notes that although HUD addresses Mr. Hickman’s failure
to file a notice under the Federal Tort Claim Act (“FTCA”) as a 12(b)(1) motion, “the Seventh
Circuit Court of Appeals has instructed that whether a plaintiff has exhausted administrative
remedies which are a prerequisite to suit . . . ‘does not implicate federal subject matter
jurisdiction and is better addressed under Rule 12(b)(6) than Rule 12(b)(1).’” Grant v. U.S.
Dep’t of Hous. & Urban Dev., No. 1:13-CV-0084-JMS-TAB, 2013 WL 2285568, at *1 (S.D.
Ind. May 23, 2013) (quoting Waters v. Anonymous Hosp. A, No. 1:10-cv-00983-LJM-MJD, 2011
WL 1458161, at *1 (S.D. Ind. 2011) (citing Palay v. United States, 349 F.3d 418, 424 (7th Cir.
2003)). Further, HUD has relied on matters outside of the pleadings, therefore, the Court will
treat HUD’s motion as one for summary judgment under Rule 12(d). See id.
The FTCA requires a claimant to seek administrative review prior to filing an action
against the United States by filing a notice with the appropriate federal agency. 28 U.S.C. §
2675(a). HUD presented the declaration of Miniard Culpepper, stating that Mr. Hickman has not
filed a claim for injury or damages with HUD. Because Mr. Hickman failed to file a response to
HUD’s Motion, the Court accepts this fact as undisputed and finds that Mr. Hickman has failed
to satisfy the requirements of the FTCA. Therefore, the Court GRANTS HUD’s Motion (Dkt.
15), and all claims asserted against HUD are DISMISSED with prejudice.

SO ORDERED.
04/11/2014
Date: ________________
2

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Jacob V. Bradley
FROST BROWN TODD LLC
[e-mail]
Lucy Renee Dollens
FROST BROWN TODD LLC
[e-mail]
Kathleen Davis
KJD LEGAL LLC
[e-mail]
Rachelle Nichole Ponist
KJD LEGAL LLC
[e-mail]
Shelese M. Woods
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

3