Campbell et al v. United States of America et al

Filing 18

ORDER granting 9 Motion to Dismiss for Lack of Subject Matter Jurisdiction. Party United States Department of Homeland Security, Ronnie J. Fairley and Federal Emergency Management Agency dismissed. Signed by Judge Helen G. Berrigan on 08/05/2014. (kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARY CAMPBELL AND
KENNETH CAMPBELL

CIVIL ACTION

VERSUS

NO. 14-897

UNITED STATES OF AMERICA, ET AL.

SECTION “C” (2)

ORDER
Before the Court is the Motion to Dismiss Claims for Lack of Subject Matter Jurisdiction
by defendants Ronnie J. Fairley, the Federal Emergency Management Agency, and the United States
Department of Homeland Security. Rec. Doc. 9. Plaintiffs do not oppose. Rec. Doc. 16. Having
considered the record and the law, the motion is hereby GRANTED.
A motion to dismiss for lack of subject matter jurisdiction under 12(b)(1) should be granted
if it appears certain that the plaintiff cannot prove a valid basis for the court’s exercise of
jurisdiction. Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010
(5th Cir. 1998). The party asserting jurisdiction bears the burden of proof on a motion under Rule
12(b)(1). Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
This matter arises out of a motor vehicle accident involving plaintiffs and defendant Fairley
on January 25, 2013 at the intersection of Leonidas Street and Earhart Boulevard, New Orleans,
Louisiana. Rec. Doc. 1. Plaintiffs commenced this lawsuit against all defendants on April 17, 2014,
under the Federal Tort Claims Act (FTCA), which provides the exclusive mode of recovery for
damages caused by federal employees acting in the course and scope of their employment. 28 U.S.C.
§ 2679(b)(1).

1

Pursuant to the FTCA, upon certification by the Attorney General that a federal employee
was acting within the scope of his employment at the time of an incident, any civil action arising out
of that incident shall be deemed against the United States itself. 28 U.S.C. § 2679(d)(1), (2). The
United States Attorney for the Easter District of Louisiana has certified that at all times relevant to
this lawsuit defendant Ronnie J. Fairly was acting within the course and scope of his federal
employment. Rec. Doc. 9-2. Accordingly, the United States must be substituted for Fairley, and all
claims against Fairley must be dismissed.
Further, under the FTCA, an individual agency is not a proper party defendant. 28 U.S.C.
2679; McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998); Galvin v. Occupational Safety &
Health Admin., 860 F.2d 181, 183 (5th Cir. 1988). Therefore, all claims against the Federal
Emergency Management Agency and the United States Department of Homeland Security must be
dismissed in this action.
Accordingly,
IT IS ORDERED that defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction
is GRANTED. Rec. Doc. 9.
New Orleans, Louisiana, this 5th day of August, 2014

______________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

2