Johnson et al v. Sceau et al

Filing 7

ORDER AND REASONS granting 5 MOTION to Dismiss for Lack of Jurisdiction; all of plaintiffs' claims against the United States of America are hereby DISMISSED WITHOUT PREJUDICE. To the extent that plaintiffs intend to pursue claims agains t the "State of Louisiana" or "State of Louisiana(VA)," plaintiffs shall comply with the pending order to show cause why the case should not be dismissed for failure to serve those defendants. Signed by Judge Lance M Africk on 5/6/2015.(blg)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA TROY JOHNSON, ET AL. CIVIL ACTION VERSUS NO. 15-44 MICHAEL SCEAU, ET AL. SECTION I ORDER AND REASONS Before the Court is a motion1 filed by defendant, the United States of America, to dismiss plaintiffs’ claims against it for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The motion was filed on February 2, 2015, and was taken under submission by the Court on March 4, 2015. Plaintiffs neither filed an opposition nor requested an extension of time to respond. Accordingly, the Court considers the motion to be unopposed. Plaintiffs filed this lawsuit against “Michael Sceau, State of Louisiana and State of Louisiana (VA)” for claims arising out of a vehicle collision while Sceau was allegedly “acting within the course and scope of his agency and/or employment.”2 The United States removed to this court “on behalf of the named federal defendant, Michael Sceau,” an employee of the Department of Veterans Affairs.3 Pursuant to 28 U.S.C. § 2679(d)(2), the United States was substituted for Sceau as a defendant. The United States now moves to dismiss the claims against it because plaintiffs have not presented a claim to the appropriate administrative agency as required by the Federal Tort Claims 1 R. Doc. No. 5. R. Doc. No. 1-1, at 2-3. 3 R. Doc. No. 1, at 1-2. 2 1 Act (“FTCA”).4 28 U.S.C. § 2675(a). Failure to comply with the FTCA’s administrative exhaustion requirement deprives the Court of subject matter jurisdiction over plaintiffs’ claims against the United States. See Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995). The motion is supported by the law and the record and, in the absence of any opposition from plaintiffs articulating why it should not be granted, IT IS ORDERED that the motion to dismiss is GRANTED and that all of plaintiffs’ claims against the United States of America are hereby DISMISSED WITHOUT PREJUDICE. To the extent that plaintiffs intend to pursue claims against the “State of Louisiana” or “State of Louisiana (VA),” plaintiffs shall comply with the pending order5 to show cause why the case should not be dismissed for failure to serve those defendants. New Orleans, Louisiana, May 6, 2015. ________________________________ LANCE M. AFRICK UNITED STATES DISTRICT JUDGE 4 R. Doc. No. 5-1, at 2-3; R. Doc. No. 5-2. R. Doc. No. 6. 5 2

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