Armand et al v. United States of America
Filing
8
ORDER & REASONS granting 7 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Martin L.C. Feldman on 5/18/2016. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HARRY ARMAND AND VIRGIE ARMAND
CIVIL ACTION
V.
NO. 16-1783
THE UNITED STATES OF AMERICA, ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is the United States of America’s unopposed
motion to dismiss the plaintiffs’ complaint for lack of subjectmatter jurisdiction. For the following reasons, the motion is
GRANTED.
This tort action arises from the plaintiffs’ claim that Harry
Armand injured his hip and neck when he fell off of an examination
table during a procedure at the Southeast Louisiana Veterans
Hospital.
The United States submits without contest that the plaintiffs
have failed to exhaust their administrative remedies under the
Federal Tort Claims Act (FTCA) before filing suit.
Federal
courts
have
limited
jurisdiction.
If
the
Court
determines at any time that it lacks subject matter jurisdiction,
it must dismiss the action. Fed. R. Civ. Proc. Rule 12(b)(1),
(h)(3). The burden of establishing jurisdiction is on the party
asserting it. See Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377 (1994). In this case, the plaintiffs bear the burden of
proof.
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The FTCA bars suits against the United States unless an
administrative claim is first presented to the appropriate federal
agency within two years after the claim accrues. 28 U.S.C. §§
2401(b) and 2675(a). Failure to exhaust administrative remedies is
a jurisdictional bar to bringing the action in a federal district
court.
See
Price
v.
United
States,
69
F.3d
46,
54
(5
Cir.
1995)(“The subject matter jurisdiction of the court is conditioned
on compliance with 28 U.S.C. § 2675(a), which declares that an
action shall not be instituted unless the plaintiff has filed an
administrative claim and either obtained a written denial or waited
six months.” (internal quotations omitted)).
The United States submits a declaration of Charles Caine, an
attorney who conducts administrative reviews of malpractice claims
for the Department of Veterans Affairs. Caine declared that the VA
received a claim from Harry Armand dated March 2, 2016. He states
that the claim is currently under investigation, six months has
not elapsed since the claim was received, and there has been no
final
determination
of
liability.
The
plaintiffs
filed
this
lawsuit on March 2, 2016, as well.
The plaintiffs do not oppose the United States’ motion. They
do not dispute their failure to exhaust administrative remedies.
The
plaintiffs’
bear
the
burden
to
establish
jurisdiction. They have failed to do so.
2
subject
matter
IT IS ORDERED that the United States of America’s motion to
dismiss for lack of subject matter jurisdiction is GRANTED. The
plaintiff’s complaint is dismissed.
New Orleans, Louisiana, May 18, 2016
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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