Ballom v. United States of America et al
Filing
9
ORDER & REASONS re: 8 Motion to Dismiss for Lack of Jurisdiction. The Motion to Dismiss is GRANTED. Ballom's claims against the United States and Calvin Robiskie are DISMISSED. Signed by Chief Judge Sarah S. Vance on 9/25/14. (plh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SIDNEY BALLOM
CIVIL ACTION
VERSUS
NO: 14-231
UNITED STATES OF AMERICA, et al.
SECTION: R(4)
ORDER AND REASONS
Defendant the United States of America moves on behalf of
itself and defendant Calvin Robiskie to dismiss plaintiff's
claims for lack of subject matter jurisdiction.1 For the
following reasons, the Court GRANTS the United States' motion.
I.
Background
Plaintiff Sidney Ballom alleges that on January 30, 2013, a
United States Postal Service (USPS) van driven by Robiskie struck
a streetcar on which plaintiff was a passenger.2 He further
alleges that at all pertinent times, Robiskie was acting within
the course and scope of his employment with USPS.3
Ballom filed a claim with USPS on January 8, 2014 regarding
the collision.4 Three weeks later, on January 30, 2014, he filed
this tort claim against the United States and Robiskie for
1
R. Doc. 8.
2
See R. Doc. 1 at 2.
3
See id. at 1.
4
See R. Doc. 8-1 at 4; R. Doc. 8-2 at ¶ 3.
damages arising from the same event.5 The United States moves to
dismiss Ballom's complaint for lack of subject matter
jurisdiction on the grounds that (1) Ballom failed to exhaust his
administrative remedies before filing suit and (2) Robiskie is
not a proper defendant under the Federal Tort Claims Act, 28
U.S.C. § 1346.6 Ballom has submitted no opposition to the United
States' motion.
II. Standard
Federal Rule of Civil Procedure 12(b)(1) permits dismissal
for lack of jurisdiction over the subject matter of a claim. In
ruling on a Rule 12(b)(1) motion to dismiss, the Court may rely
on (1) the complaint alone, presuming the allegations to be true,
(2) the complaint supplemented by undisputed facts, or (3) the
complaint supplemented by undisputed facts and by the court's
resolution of disputed facts. Den Norske Stats Oljeselskap As v.
HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also
Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996). The party asserting jurisdiction bears the burden of
establishing that the district court possesses jurisdiction.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
5
R. Doc. 1
6
R. Doc. 8.
2
III. Discussion
A plaintiff may sue the United States only if the United
States has consented to suit in the circumstances. See Young v.
U.S., 727 F.3d 444, 446-447 (5th Cir. 2013). The Federal Tort
Claims Act (FTCA) permits tort actions against the United States
but requires that before filing suit, a plaintiff must (1)
present his tort claim to the appropriate federal agency and (2)
receive a final denial of his tort claim from the agency in
writing. 28 U.S.C. §§ 1346(b), 2675(a); In re FEMA Trailer
Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir.
2011). A claimant may also consider a claim denied if the
appropriate agency fails to make a final disposition of the claim
within six months. 28 U.S.C. § 2675(a). If the agency denies the
claim, the plaintiff then has six months to file a lawsuit. 28
U.S.C. § 2401; FEMA Trailer, 646 F.3d at 185. This exhaustion
requirement is a jurisdictional prerequisite to suit. Hinojosa v.
U.S. Bureau of Prisons, 506 Fed. App'x 280, 282 (5th Cir. 2013).
Here, the record indicates that Ballom did not receive a
final denial from USPS or wait six months before filing a tort
claim against the United States. Rather, he waited less than a
month before filing his tort claim in district court.7 USPS had
not denied his claim at that time.8 Ballom therefore failed to
7
See R. Doc. 8-2 at ¶¶ 3-4.
8
See id. at ¶ 5.
3
follow the exhaustion requirements of the FTCA. Accordingly, his
claims against the United States must be dismissed. See id.
Next, Robiskie is not a proper defendant under the FTCA. The
remedies provided by the FTCA are the exclusive remedies for any
claim arising from the tort of a federal employee committed in
the scope of his or her employment. See 28 U.S.C. § 2679(b)(1).
Other civil proceedings against federal employees are expressly
precluded. Id. Thus, "[i]t is beyond dispute that the United
States, and not the responsible . . . employee, is the proper
party defendant in a Federal Tort Claims Act suit." Galvin v.
Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir.
1988). "[A]n FTCA claim against a federal . . . employee as
opposed to the United States itself must be dismissed for want of
jurisdiction." Id. Robiskie was acting within the course and
scope of his employment as a letter carrier with USPS at the time
of the conduct alleged in Ballom's complaint.9 Because Robiskie
is not a proper defendant under the FTCA, Ballom's claims against
Robiskie must be dismissed.
9
See id. R. Doc. 1 at 1; R. Doc. 8-2 at ¶ 4; R. Doc. 8-3.
4
IV.
Conclusion
For the foregoing reasons, the United States' motion to
dismiss is GRANTED. Ballom's claims against the United States and
Calvin Robiskie are DISMISSED.
Hello This is a Test
New Orleans, Louisiana, this _______ day of ______________, 2014.
September
25th
___________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
5
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