Regenbogen v. Lea et al

Filing 19

ORDER & REASONS that the United States of America's 11 Motion to Dismiss for Lack of Jurisdiction is GRANTED. This lawsuit is hereby DISMISSED without prejudice to Plaintiff's right to refile. Signed by Judge Eldon E. Fallon on 6/2/14. (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DAVID H. REGENBOGEN
versus
UNITED STATES OF AMERICA, ET AL

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CIVIL ACTION
No. 13-6311
SECTION “L” (5)

ORDER & REASONS
Before the Court is a motion to dismiss for lack of jurisdiction, filed by the United
States of America. (Rec. Doc. 11). The Court has reviewed the briefs and relevant law and now
issues this order and reasons.
I.

BACKGROUND
This lawsuit arises out of injuries that Plaintiff David Regenbogen allegedly sustained

while he was on property, which he claims was maintained and owned by the United States of
America, Department of Housing and Urban Development ("HUD"). Regenbogen claims that
because of a hazardous condition on the property, he fell and hurt himself. (Rec. Doc. 1 at 4).
Regenbogen brought this lawsuit against the United States under the Federal Tort Claims Act.
(Rec. Doc. 1 at 3). He also names various other Defendants whom he claims were negligent and
are jointly and severally liable for his injuries. (Rec. Doc. 1 at 4). Regenbogen alleges that
"Defendant, United States of America d/b/a U.S. Department of Housing and Urban
Development ("HUD") owned, had custody and had guard of the premises at issue, and knew
and/or should have known about the aforementioned defects." (Rec. Doc. 1 at 8). Regenbogen
asks to be compensated for pain and suffering, medical expenses, loss of enjoyment of life, lost
wages, as well as other damages. (Rec. Doc. 1 at 9). In his complaint, Regenbogen claims that

he has "timely and properly followed all administrative procedural requirements, and filed a
Claim for Damages, Injury or Death to the appropriate Federal Agency." (Rec. Doc. 1 at 3).
Regenbogen explains that he filed his claim with HUD on October 30, 2013, which was two
days before he filed this lawsuit.
II.

PRESENT MOTION
The United States filed a motion to dismiss for lack of jurisdiction. (Rec. Doc. 11).

The United States explains that before a lawsuit may be brought under the FTCA, a plaintiff
must first exhaust his administrative remedies. (Rec. Doc. 11-1 at 2) (citing 28 U.S.C. § 2675).
The United States points out that Regenbogen filed his claim for damages with HUD on October
30, 2012, only two days before he filed the present suit. (Rec. Doc. 11-1 at 3). Since HUD had
not yet responded, and six months had not yet elapsed, when Regenbogen filed the complaint,
the United States argues that Regenbogen did not exhaust his administrative remedies. (Rec.
Doc. 11-1 at 3-4). According to the United States, the exhaustion requirement is a jurisdictional
requisite to the filing of an action under the FTCA. (Rec. Doc. 11-1 at 3) (citing McAfee v. 5th
Cir. Judges, 884 F.2d 199, 204 (5th Cir. 1981)). Therefore, the United States argues that this
Court lacks subject matter jurisdiction over the suit and the claims against the United States
should be dismissed. (Rec. Doc. 11-1 at 4).
Several months later, Regenbogen filed an opposition. (Rec. Doc. 16). Regenbogen
agrees that exhaustion is a jurisdictional requisite to the filing of an action under the FTCA.
(Rec. Doc. 16 at 2). Regenbogen also agrees that his administrative remedies had not been
exhausted when he filed the present lawsuit. (Rec. Doc. 16 at 3). However, Regenbogen claims
that in March 2014, after the lawsuit was filed, he received a letter from HUD denying his
administrative claim. (Rec. Doc. 16 at 3). Therefore, Regenbogen claims that his administrative

remedies have now been exhausted, this Court has subject matter jurisdiction over the case, and
the United States' motion is now moot. (Rec. Doc. 16 at 3). Regenbogen argues that dismissing
his claims against the United States will only delay his right to relief and force him to incur
unnecessary expenses associated with re-filing the lawsuit. (Rec. Doc. 16 at 3).
The United States filed a reply. (Rec. Doc. 17 at 1). The United States claims that a
federal court must have subject matter jurisdiction over a lawsuit from the lawsuit's inception
and that failure to exhaust administrative remedies cannot be cured after the fact. (Rec. Doc. 17
at 1). The United States claims that in McNeil v. United States, the United States Supreme Court
resolved a circuit split and held that a prematurely filed FTCA action could not proceed even
though the administrative remedies were exhausted while the lawsuit was in progress. (Rec.
Doc. 17 at 2-3). Accordingly, the United States argues that the case must still be dismissed,
though Plaintiff will have a right to refile it if still timely. (Rec. Doc. 17 at 1).
III.

LAW & ANALYSIS
28 U.S.C. § 2675 provides:
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.

28 U.S.C. § 2675 (a). Pursuant to this statute, an individual must present an administrative claim
to the appropriate federal agency before he can file a lawsuit against the government. See

Reynolds v. U.S., 748 F.2d 291, 292 (5th Cir. 1984). In addition, the agency must deny his claim
in writing, or six months must pass, before the individual can bring such an action. Id. If a
lawsuit is filed under the FTCA before administrative remedies have been exhausted, the court
lacks subject matter jurisdiction. See Id.
In McNeil v. United States, the Supreme Court, interpreting § 2675, found that
Congress "intended to require complete exhaustion of Executive remedies before invocation of
the judicial process." 508 U.S. 106, 112 (1993). The Supreme Court determined that strict
adherence to the statutory language is appropriate, especially in light of the fact that this statute
governs the processing of a "vast multitude of claims." Id. at 113. With those principals in
mind, the Supreme Court held that a prematurely filed FTCA lawsuit cannot proceed even if the
claimant's administrative remedies are exhausted before any substantial progress has taken place
in the litigation. Id. at 110-113; see also Price v. U.S., 69 F.3d 46, 54 (5th Cir. 1995) ("An
action that is filed before the expiration of the six-month waiting period, and is thus untimely,
cannot become timely by the passage of time after the complaint is filed.") (citing McNeil, 508
U.S. 106).
In the present case, Regenbogen filed his complaint two days after he filed a claim
with HUD. HUD had not responded to his claim yet and only two days had passed. It is clear
that Regenbogen had not exhausted his administrative remedies when he filed the lawsuit.
Therefore, this Court lacked subject matter jurisdiction over his claims. The fact that HUD has
since denied his claim does not cure the jurisdictional defect.
Furthermore, finding that this Court does not have jurisdiction over Regenbogen's
FTCA claim, the Court declines to exercise supplemental jurisdiction over his remaining claims.
See 28 U.S.C.§ 1367(c) ("The district courts may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if . . . the district court has dismissed all claims over which it
has original jurisdiction.).
IV.

CONCLUSION
IT IS ORDERED that Defendant's motion to dismiss (Rec. Doc. 11) is GRANTED.

This lawsuit is hereby DISMISSED without prejudice to Plaintiff's right to refile.

New Orleans, Louisiana, this 2nd day of June, 2014.

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UNITED STATES DISTRICT JUDGE