Kentucky Farm Bureau Mutual Insurance Company v. United States of America

Filing 18

MEMORANDUM OPINION AND ORDER granting 15 Motion to Dismiss for Lack of Jurisdiction granting 15 Motion to Dismiss for Failure to State a Claim; Signed by Chief Judge Joseph H. McKinley, Jr on 4/7/15: Plaintiffs Complaint is DISMISSED without prejudice for failure to exhaust administrative remedies. cc: Counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14CV-977-JHM
KENTUCKY FARM BUREAU
MUTUAL INSURANCE COMPANY

PLAINTIFF

VS.
DEFENDANT 

UNITED STATES
MEMORANDUM OPINION AND ORDER

This matter is before the Court on a motion by Defendant, United States, to dismiss the

Complaint against it pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). [DN 15]. On March 9,
2015, Plaintiff, Kentucky Farm Bureau Mutual Insurance Company (“Farm Bureau”), filed an
unopposed motion to extend the deadline to respond to March 19, 2015. Although Plaintiff’s
motion was granted [DN 17], it has failed to file a responsive motion.

On these facts,

Defendant’s motion is ripe for review.
I. BACKGROUND
This claim arises out of a motor vehicle accident that occurred on December 23, 2011 in
Jefferson County, Kentucky. Plaintiff, Farm Bureau, alleges that Aaron Johnson “negligently
and carelessly operated a motor vehicle as to cause it to collide with a vehicle owned by an
insured of the Plaintiff.” [Complaint, DN 1-1, at ¶ 3]. On October 28, 2014, Plaintiff filed a
Complaint in Jefferson Circuit Court that named Aaron Johnson as a defendant and sought
reparation benefits.
The United States filed a Notice of Removal on December 22, 2014, which stated that
during the time of the incident alleged in Plaintiff’s Complaint, Johnson was acting in the scope
of his employment with the Postal Service. [Notice of Removal, DN 1, at ¶ 4]. Then, on January

27, 2015, the Court granted Defendant’s motion to substitute Aaron Johnson for the United
States as the sole defendant pursuant to the Federal Employees Liability Reform and Tort
Compensation Act of 1988, 28 U.S.C. § 2679 (“the Westfall Act”). [Order, DN 12]. Defendant,
United States, now moves to Dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(1)
and 12(b)(6).
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) provides that a party may file a motion asserting
“lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). “Subject matter jurisdiction is
always a threshold determination,” American Telecom Co., L.L.C. v. Republic of Lebanon, 501
F.3d 534, 537 (6th Cir.2007) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
101 (1998)), and “may be raised at any stage in the proceedings,” Schultz v. General R.V.
Center, 512 F.3d 754, 756 (6th Cir. 2008). “A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or
it can attack the factual basis for jurisdiction, in which case the trial court must weigh the
evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v.
Kentucky, 381 F.3d 511, 516 (6th Cir.2004). “A facial attack on the subject-matter jurisdiction
alleged in the complaint questions merely the sufficiency of the pleading.” Gentek Bldg.
Products, Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). “If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.” Fed.R.Civ.P. 12(h)(3).
III. ANALYSIS
“The Westfall Act immunizes federal employees from liability for torts they commit
when acting within the scope of their federal employment.” Rector v. United States, 243 Fed.
Appx. 976, 978 (6th Cir. 2007) (citing 28 U.S.C. § 2679(b)(1)). The exclusive remedy for torts
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committed by a federal employee acting within the scope of employment is sought against the
United States pursuant to the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 2671-2680.
Id. “When the employee acts outside the scope of employment, however, a private tort action
can be brought against the employee.” Id. However, in instances where the U.S. Attorney
General or his delegate certifies that the employee was acting in the scope of his employment,
“the certification provides prima facie evidence that the individual was acting within the scope of
employment, placing the burden on the plaintiff to present evidence to the contrary.” Id. (citing
RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1143 (6th Cir. 1996)). Here, the
United States has provided such certification. [Certification, DN 1-2]. Plaintiff has not filed any
brief or document to rebut Defendant’s claim. Therefore, the Court must presume that Aaron
Johnson was acting within the scope of his employment.
Although the FTCA provides an avenue for a private party to bring suit against the
United States, the party must “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.” 28 U.S.C. § 2675; see also Rector, 243 Fed. Appx. at 979. “These conditions
are jurisdictional requirements, not capable of waiver or subject to estoppel.” Garrett v. United
States, 640 F.2d 24, 26 (6th Cir. 1981) (citing Executive Jet Aviation, Inc. v. United States, 507
F.2d 508, 515 (6th Cir. 1974)).
administrative remedies.

Defendant argues that Plaintiff has not exhausted its

Plaintiff’s Complaint is devoid of any allegation that it pursued

administrative remedies. Further, Defendant provides a declaration by Kimberly Herbst, the
Supervisor, Tort Claims Examiner/Adjudicator with the United States Postal Service National
Tort Center, who states that the United States never received any claim by Plaintiff. Because
there is no evidence that Plaintiff exhausted its administrative remedies, this Court lacks subject

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matter jurisdiction. See Allison v. Gay, 50 Fed. Appx. 719, 720 (6th Cir. 2002). Also, due to a
lack of subject matter jurisdiction, the Court finds no reason to address Defendant’s grounds for
dismissal based on Fed. R. Civ. P. 12(b)(6). Moir v. Greater Cleveland Regional Transit
Authority, 895 F.2d 266, 269 (6th Cir. 1990) (“[W]e are bound to consider the 12(b)(1) motion
first, since the Rule 12(b)(6) challenge becomes moot if this court lacks subject matter
jurisdiction.” (citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946)).
IV. CONCLUSION
For the foregoing reasons, the motion by Defendant, United States, to dismiss the
Complaint against it [DN 15] is GRANTED. Plaintiff’s Complaint is DISMISSED without
prejudice for failure to exhaust administrative remedies.

April 7, 2015

cc: counsel of record

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