Gauthreaux et al v. United States of America
ORDER AND REASONS: For the foregoing reasons, the 37 Motion to Dismiss, filed by the United States of America, is GRANTED. Plaintiffs' request for a jury trial is hereby DISMISSED WITH PREJUDICE, as set forth herein. Signed by Judge Wendy B Vitter on 7/15/2021. (Reference: All Cases)(jeg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL GAUTHREAUX, ET AL.
UNITED STATES OF AMERICA
SECTION: D (5)
ORDER AND REASONS1
Before the Court is a Motion to Dismiss, filed by the United States of America.2
The Motion is opposed.3 After careful consideration of the parties’ memoranda and
the applicable law, the Motion is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
On July 2, 2020, Michael Gauthreaux and Sheena Gauthreaux, individually
and on behalf of their minor child J.G. (collectively, “Plaintiffs”), filed a Complaint in
this Court against the United States of America (hereinafter, the “Government”)
under the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. § 2671, et seq.4 Plaintiffs
allege that on April 12, 2018, they were traveling southbound on Highway 21 in
Covington, Louisiana, when a vehicle owned by the United States Postal Service (the
Unless otherwise indicated, all of the citations to the record in this Order refer to documents filed in
the master file of this consolidated matter, Civ. A. No. 20-1894.
2 R. Doc. 37.
3 R. Doc. 50. The Court notes that the Opposition brief does not identify the “plaintiff” referenced
therein. The Court finds this troubling, since the consolidated matter includes claims asserted by
Sheena and Michael Gauthreaux, on behalf of the minor, J.G., in Civ. A. No. 20-1894, and claims
asserted by Sheena and Michael Gauthreaux, individually in Civ. A. No. 21-447. (See, R. Docs. 1 & 9
in Civ. A. No. 21-447). However, the Opposition brief does not appear to be filed on behalf of Sheena
Gauthreaux and Michael Gauthreaux in their individual capacities, as the first sentence states that,
“On May 7, 2021 counsel for the plaintiff filed a Motion to Amend Complaint to include ‘reasonable
damages,’ [sic] for the minor J.G.” R. Doc. 50 at p. 1. This suggests to the Court that the Opposition
brief was filed by Sheena and Michael Gauthreaux acting on behalf of the minor child, J.G.
4 R. Doc. 1.
“USPS”) and operated by its employee, Kelli Lee, struck Plaintiffs’ vehicle at an
intersection.5 Plaintiffs allege that Lee’s negligence caused the accident and that the
Government is liable for the damages and injuries caused by its employee under the
FTCA.6 Pertinent to the instant Motion, Plaintiffs requested a jury trial in this
matter and sought $161,631.82 in actual damages for Sheena Gauthreaux, $5,000 in
actual damages for the minor, J.G., and $10,000 in actual damages for Michael
As set forth in the Court’s February 23, 2021 Order and Reasons, pursuant to
the FTCA, Michael and Sheena Gauthreaux filed their administrative tort claims
with the USPS on January 3, 2020, which were denied on September 18, 2020.8
Because they filed suit on July 2, 2020, before their administrative claims were
denied and one day shy of six months after filing their administrative tort claims with
the USPS, the Court found that Sheena and Michael Gauthreaux failed to exhaust
their administrative remedies under 28 U.S.C. § 2675(a).9 As such, the Court granted
the Government’s Partial Motion to Dismiss, and dismissed without prejudice the
claims of Michael and Sheena Gauthreaux, brought in their individual capacities, for
lack of subject matter jurisdiction.10
Id. at ¶ 7.
Id. at ¶ 8.
7 Id. at ¶¶ 9 & 11.
8 R. Doc. 21.
9 Id. at p. 5.
10 R. Doc. 21.
As a result of that dismissal, Plaintiffs filed a second lawsuit in this Court on
March 3, 2021, attempting to remedy the defect in their original Complaint.11 The
Complaint filed in the second case is nearly identical to Plaintiffs’ original Complaint.
On April 20, 2021, Plaintiffs filed an unopposed Motion to Consolidate the two cases,
which the Court granted.12
Thereafter, on May 7, 2021, Plaintiffs sought leave to file a supplemental
complaint in the consolidated matter to clarify their request for “reasonable damages”
for the minor, J.G., to which there was no objection.13 The proposed Supplemental
and Amending Petition included only two paragraphs, referencing and amending the
original complaint.14 The Court denied the motion without prejudice, noting that
Plaintiffs’ proposed Supplemental and Amending Petition was not a comprehensive
pleading, and gave Plaintiffs two days to “re-file the Motion with a proposed
comprehensive amended pleading that includes all of Plaintiffs’ numbered
allegations, as revised, supplemented, and/or amended, and which will become the
operative complaint in this matter without reference to any other document in the
record.”15 Pursuant to that Order, Plaintiffs filed a Motion to Supplement and Amend
Complaint on May 12, 2021, and represented to the Court that, “Counsel for
defendant has no objection.”16 The Court granted the Motion as unopposed, and
See, R. Doc. 1 in Gauthreaux, et al. v. United States of America, Civ. A. No. 21-447-WBV-MBN (E.D.
12 See, R. Docs. 8 & 10 in Gauthreaux, et al. v. United States of America, Civ. A. No. 21-447-WBV-MBN
13 R. Doc. 29.
14 R. Doc. 29-1.
15 R. Doc. 30.
16 R. Doc. 31.
ordered that Plaintiffs’ Supplemental and Amending Petition be filed into the
record.17 The Supplemental and Amending Petition names Michael and Sheena
Gauthreaux as Plaintiffs “on behalf of the minor, J.G.,” includes a request for a jury
trial, and seeks “Damages in excess of $25,000.00 for the minor J.G. who was a
passenger in the vehicle.”18
On June 3, 2021, the Government filed the instant Motion to Dismiss, asking
the Court to strike the amended damages prayer and the jury trial request under
Fed. R. Civ. P. 12(b)(1) & 12(b)(6).19 The Government asserts that while it agreed to
Plaintiffs’ request to amend their Complaint to seek “reasonable damages” on behalf
of the minor child, the Government did not consent to Plaintiffs increasing the
damages sought on behalf of the minor.20 The Government points out that Plaintiffs
initially sought $5,000 in damages for the minor child, which is the amount claimed
on his administrative claim Standard Form (“SF”) 95 submitted to the USPS, but
have now increased their demand to “in excess of $25,000.”21 The Government argues
that Plaintiffs’ request for $25,000 in damages must be stricken because it exceeds
the minor child’s administrative claim and Plaintiffs have failed to show that either
exception to the administrative claim limit, set forth in 28 U.S.C. § 2675(b), is met in
this case. Specifically, the Government claims that Plaintiffs have failed to show that
the increase “is based upon newly discovered evidence not reasonably discoverable at
R. Doc. 33. See, R. Doc. 31-1.
R. Doc. 34 at Introductory Paragraph and ¶¶ 1, 7, & 9.
19 R. Doc. 37.
20 Id. at ¶ 2.
21 Id. (citing R. Doc. 1 at ¶ 11(B) & R. Doc. 34 at ¶ 9(A)).
the time of presenting the claim to the federal agency,” or that it is based upon
intervening facts relating to the amount of the claim.22 The Government further
argues that Plaintiffs’ request for a jury trial should be dismissed because jury trials
are prohibited by the FTCA.23
Plaintiffs oppose the Motion,24 asserting that they interpreted the Court’s May
10, 2021 Order instructing them to file a “comprehensive pleading” as requiring them
to file a complaint that “include[d] an actual figure rather than the term ‘reasonable
damages.’”25 As such, Plaintiffs claim they refiled a proposed amended complaint
seeking $25,000 in damages, and directed the Court’s attention to Fed. R. Civ. P. 15
regarding the filing of amended complaints.26 Plaintiffs do not address the statement
in their Motion to Supplement and Amend the Complaint that, “Counsel for
defendant has no objection,” nor do Plaintiffs provide any basis for the increase in
damages sought. Plaintiffs assert that the Government subsequently notified them
of its opposition to the inclusion of the $25,000 damages request, and Plaintiffs ask
the Court to “set a submission date for plaintiff’s motion” if the Government wishes
to oppose the amendment.27
Alternatively, Plaintiffs claim they will “refile the
motion as opposed, and set it for a submission date.”28 Plaintiffs further assert that
R. Doc. 37-1 at p. 5.
Id. (citing Carlson v. Green, 446 U.S. 14, 22, 100 S. Ct. 1468, 1473, 64 L. Ed. 2d 15 (1980); United
States v. Neustadt, 366 U.S. 696, 711, 81 S.Ct. 1294, 1303, 6 L.Ed.2d 614 (1961)).
24 Again, the Court assumes that the Opposition brief was filed by Sheena and Michael Gauthreaux
acting on behalf of their minor child, J.G., because the brief fails to identify the “plaintiff” referenced
therein. See, supra, n. 3.
25 R. Doc. 50 at p. 1.
28 Id. at pp. 1-2.
the question of a jury trial was never discussed with the Government, but they do not
oppose striking the jury demand “if plaintiffs are not entitled to a jury trial under 28
U.S.C. § 2402.”29
A. Federal Rule of Civil Procedure 12(b)(1) Standard
A motion to dismiss filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure allows a party to challenge the subject matter jurisdiction of the district
court to hear a case.30 A case is properly dismissed pursuant to Rule 12(b)(1) “for lack
of subject-matter jurisdiction when the court lacks the statutory or constitutional
power to adjudicate the case.”31
In considering a challenge to subject matter
jurisdiction under Rule 12(b)(1), “the district court is ‘free to weigh the evidence and
resolve factual disputes in order to satisfy itself that it has the power to hear the
case.’”32 Thus, a motion to dismiss for lack of jurisdiction may be decided by the Court
based on: (1) the complaint alone; (2) the complaint and the undisputed facts in the
record; or (3) the complaint, the undisputed facts in the record, and the court’s own
resolution of disputed facts.33 The party asserting jurisdiction carries the burden of
proof when facing a Rule 12(b)(1) motion to dismiss.34 A motion to dismiss under
Id. at p. 2.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
31 Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citing Home Builders Ass'n of Miss.,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).
32 Krim, 402 F.3d at 494 (quoting Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010).
33 Flores v. Pompeo, 936 F.3d 273, 276 (5th Cir. 2019) (quoting Robinson v. TCI/US W. Commc’ns Inc.,
117 F.3d 900, 904 (5th Cir. 1997)) (internal quotation marks omitted).
34 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011) (citing Ramming, 281
F.3d at 161).
12(b)(1) should only be granted “if it appears certain that the plaintiff cannot prove
any set of facts in support of his claim that would entitle plaintiff to relief.”35
B. Federal Rule of Civil Procedure 12(b)(6) Standard
It is well-settled in this Circuit that motions to dismiss under Fed. R. Civ. P.
12(b)(6) are viewed with disfavor and are rarely granted.36 To overcome a defendant’s
motion to dismiss, a plaintiff must plead a plausible claim for relief.37 A claim is
plausible if it is pleaded with factual content that allows the court to reasonably infer
that the defendant is liable for the misconduct alleged.38 But, no matter the factual
content, a claim is not plausible if it rests on a legal theory that is not cognizable.39
In ruling on a motion to dismiss, the Court accepts all well-pleaded facts as true and
views those facts in the light most favorable to the plaintiff.40
allegations must be enough to raise a right to relief above the speculative level on the
assumption that all of the complaint’s allegations are true.41 “[C]onclusory allegations
or legal conclusions masquerading as factual conclusions will not suffice to prevent a
motion to dismiss.”42
In deciding a Rule 12(b)(6) motion to dismiss, a court is
generally prohibited from considering information outside the pleadings, but may
consider documents outside of the complaint when they are: (1) attached to the
Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010).
Financial Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006) (quoting Lowrey
v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).
37 Romero v. City of Grapevine, Tex., 888 F. 3d 170, 176 (5th Cir. 2018) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
38 Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).
39 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F. 3d 1029, 1032 (5th Cir. 2010)
40 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
41 Bell Atlantic v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
42 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (internal citations omitted).
motion; (2) referenced in the complaint; and (3) central to the plaintiff’s claims.43 The
Court can also take judicial notice of matters that are of public record, including
pleadings that have been filed in a federal or state court.44
A. Increased Damages Request.
Under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675, et seq., an
action for money damages for injury or loss of property or personal injury may not be
brought against the United States “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.” 45 As explained by
the Fifth Circuit, “the FTCA waives sovereign immunity and permits suits against
the United States sounding in state tort for money damages.”46 The FTCA further
specifies that an action brought thereunder:
shall not be instituted for any sum in excess of the amount of the claim
presented to the federal agency, except where the increased amount is
based upon newly discovered evidence not reasonably discoverable at
the time of presenting the claim to the federal agency, or upon allegation
and proof of intervening facts, relating to the amount of the claim.47
Thus, “The plaintiff in an FTCA suit who seeks to exceed his administrative claim
has the burden to show that the addition is based on newly discovered evidence or
Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).
In re American Intern. Refinery, 402 B.R. 728, 749 (W.D. La. 2008) (citing Cisco Systems, Inc. v.
Alcatel USA, Inc., 301 F. Supp. 2d 599, 602 n.3 (E.D. Tex. 2004)).
45 28 U.S.C. § 26759(a).
46 Freeman v. United States, 556 F.3d 326, 335 (5th Cir. 2009) (citing In re Supreme Beef Processors,
Inc., 468 F.3d 248, 252 (5th Cir. 2006)).
47 28 U.S.C. § 2675(b).
intervening facts within the meaning of § 2675(b).”48 A plaintiff can satisfy this
burden by showing that the evidence was not “reasonably capable of detection at the
time the administrative claim was filed,” meaning that the information was not
discoverable through the exercise of reasonable diligence.49
“Information can be newly discovered evidence or an intervening fact if it sheds new
light on the basic severity of the claimant’s condition.”50
The Fifth Circuit has held that the “timely presentation of a claim including ‘a
sum certain’ is a jurisdictional requirement, absent compliance with which the courts
have no jurisdiction to entertain the suit under the Federal Tort Claims Act.”51 The
Fifth Circuit further explained that, “Requiring the plaintiff to guard against a worstcase scenario in preparing his claim gives the Government full notice of its maximum
potential liability in the case.
This encourages settlement of FTCA cases in
accordance with the statute’s purposes.”52
Here, the Government asserts, and Plaintiffs do not dispute, that Plaintiffs
filed an administrative claim for the minor child, J.G., seeking personal injury
damages of $5,000 as a result of the underlying car accident.53 Plaintiffs do not assert
that their request for $25,000 in damages for the minor, J.G., in the Supplemental
Lebron v. United States, 279 F.3d 321, 330 (5th Cir. 2002) (citing authority).
Lebron, 279 F.3d at 330 (quoting Low v. United States, 795 F.2d 466, 470 (5th Cir. 1986)).
50 D’Antoni v. Fed. Emergency Mgmt. Agency, Civ. A. No. 07-615, 2008 WL 417701, at *5 (E.D. La. Feb.
13, 2008) (quoting Lebron, 279 F.3d 321, 330).
51 Martinez v. United States, 728 F.2d 694, 697 (5th Cir. 1984) (quoting Wardsworth v. United States,
721 F.2d 503, 505–06 (5th Cir. 1981)).
52 Lebron, 279 F.3d at 330-31 (citing Low, 795 F.2d at 740-41; Reilly v. United States, 863 F.2d 149,
172-73 (1st Cir. 1988)).
53 R. Doc. 37-1 at p. 4 (citing R. Doc. 37-3 at ¶ 3); R. Doc. 50.
and Amending Petition54 is based upon newly discovered evidence or an intervening
fact, as required by 28 U.S.C. § 2675(b).55 Instead, Plaintiffs claim they requested
$25,000 in damages in lieu of their request for “reasonable damages” based upon their
interpretation of the Court’s May 10, 2021 Order, wherein the Court denied without
prejudice Plaintiffs’ Motion to Supplement and Amend Complaint and afforded
Plaintiffs an opportunity to refile their motion with a proposed comprehensive
amended pleading.56 The Court’s May 10, 2021 Order makes no mention of Plaintiffs’
request for damages or the substance of the allegations contained in Plaintiffs’
proposed amended pleading. Instead, the Court’s May 10, 2021 Order specifically
advises Plaintiffs that their proposed Supplemental and Amending Petition “is not a
comprehensive pleading and, instead, refers to deletions, substitutions and/or
additions to the original Complaint.”57 Thus, Plaintiffs’ reliance upon the Court’s
May 10, 2021 Order to support their increased damages request is misplaced.
Plaintiffs offer no other legal authority to support their request for $25,000 in
damages on behalf of the minor, J.G. According to the Fifth Circuit, absent newly
discovered evidence or intervening facts, the only time that Plaintiffs could have
amended the specific amount of damages sought on behalf of the minor child, J.G.,
was before filing this suit.58 There is no information before the Court to indicate that
R. Doc. 34 at ¶ 9.
See, 28 U.S.C. § 2675(b); D’Antoni v. Fed. Emergency Mgmt. Agency, Civ. A. No. 07-615, 2008 WL
417701, at *5 (E.D. La. Feb. 13, 2008) (quoting Lebron, 279 F.3d 321, 330).
56 See, R. Docs. 29 & 30.
57 R. Doc. 30.
58 See, Dickerson ex rel. Dickerson v. United States, 280 F.3d 470, 477 (5th Cir. 2002) (citing 28 C.F.R.
§ 14.2(c)) (finding plaintiffs “could have amended their administrative claims after filing at any time
before bringing suit.”).
Plaintiffs amended J.G.’s administrative claim with the USPS prior to filing this suit
to reflect a claim for damages of $25,000.
Accordingly, Plaintiffs’ request for
“Damages in excess of $25,000.00 for the minor J.G. who was a passenger in the
vehicle” must be limited to the amount of damages sought in J.G.’s administrative
claim, which was $5,000. To the extent Plaintiffs seek leave to refile their motion for
leave to file an amended complaint,59 any such request must be made by formal
motion to the Court.
B. Jury Trial Request.
Under 28 U.S.C. § 2402, “[A]ny action against the United States . . . shall be
tried by the court without a jury.”60 Additionally, the Fifth Circuit has consistently
held that there is no right to a trial by jury in FTCA cases. 61 Plaintiffs assert in their
Opposition brief that, “if plaintiffs are not entitled to a jury trial under 28 U.S.C. §
2402, plaintiffs do not oppose striking the jury demand.”62 Additionally, Plaintiffs
cite no legal authority in their Opposition brief to support their request for a jury trial
in this matter. Based upon the foregoing authority from the Fifth Circuit, Plaintiffs’
request for jury trial must be dismissed.
R. Doc. 50 at pp. 1-2.
28 U.S.C. § 2402.
61 See, Lineberry v. United States, 356 Fed.Appx. 673, 674 (5th Cir. 2009); Andrade v. Chojnacki, 338
F.3d 448, 457 (5th Cir. 2003); see also Lewis v. United States, Civ. A. No. 18-3423, 2018 WL 3619443,
at *2 (E.D. La. July 30, 2018).
62 R. Doc. 50 at p. 2.
For the foregoing reasons, the Motion to Dismiss, filed by the United States of
America,63 is GRANTED. Plaintiffs’ request for a jury trial is hereby DISMISSED
WITH PREJUDICE, and Plaintiffs’ prayer for “Damages in excess of $25,000.00 for
the minor J.G. who was a passenger in the vehicle” is limited to the amount of J.G.’s
administrative claim submitted to the USPS, which was $5,000.
New Orleans, Louisiana, July 15, 2021.
WENDY B. VITTER
United States District Judge
R. Doc. 37.
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