Hammond et al v. U.S. Bureau of Alcohol, Tobacco, Firearms And Explosives, et al

Filing 39

ORDER: IT IS ORDERED that the 33 unopposed motion of Defendant the United States of America to dismiss this action for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) is GRANTED. This action is DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction. A final judgment will follow in accordance with Federal Rule of Civil Procedure 58. Signed by Judge Brandon S. Long on 06/04/2024. (js)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAVELL HAMMOND, ET AL.

CIVIL ACTION

VERSUS

NO. 23-986

UNITED STATES OF AMERICA

SECTION “O”
ORDER

Before the Court in this Federal Tort Claims Act (FTCA) case are three
unopposed motions filed by Defendant the United States of America: (1) a motion 1 to
limit the ad damnum and to dismiss the punitive-damages claims of Plaintiffs Lavell
Hammond, individually and on behalf of her minor children, M.W. and G.W., and
Carolyn Hammond, noticed 2 for submission on May 1, 2024; (2) a motion 3 to dismiss
Plaintiffs’ claims for lack of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), noticed 4 for submission on May 15, 2024; and (3) a motion 5 to
dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), or,
alternatively, for summary judgment, noticed 6 for submission on May 29, 2024.

ECF No. 28.
ECF No. 28-5.
3 ECF No. 33.
4 ECF No. 33-5.
5 ECF No. 34.
6 ECF No. 34-6.
1
2

On May 31, 2024, after Plaintiffs failed to timely respond to any of these
motions under Local Civil Rule 7.5, 7 the Court ordered Plaintiffs—to the extent they
opposed any of the motions—to file by June 3, 2024 a motion seeking the Court’s leave
to file untimely responses, accompanied by proposed responses to each motion. 8 The
Court specifically informed Plaintiffs that “[i]f Plaintiffs fail to timely file a motion
for leave accompanied by proposed responses to each opposed motion, the Court will
consider the motions unopposed and proceed to issue rulings on each of them.” 9
Plaintiffs nonetheless failed to file a motion for leave accompanied by proposed
responses in accordance with the Court’s order. So, the Court deems the motions
unopposed. Considering those unopposed motions, the Court concludes that it need
not resolve the unopposed motion 10 to limit the ad damnum and to dismiss the
punitive-damages claims or the unopposed motion 11 to dismiss for failure to state a
claim, or, alternatively, for summary judgment, because the United States’
unopposed Rule 12(b)(1) motion 12 has merit and reveals that the Court lacks subjectmatter jurisdiction. That unopposed Rule 12(b)(1) motion confirms that the
discretionary-function exception to the FTCA’s limited waiver of the United States’
sovereign immunity applies and deprives the Court of subject-matter jurisdiction.

Under Local Civil Rule 7.5, Plaintiffs’ response to Defendant’s motion to limit the ad damnum
and dismiss punitive-damages claims was due on April 23, 2024; it is now 42 days late. Plaintiffs’
response to Defendant’s motion to dismiss for lack of subject-matter jurisdiction was due on May 7,
2024; it is now 28 days late. Plaintiffs’ response to Defendant’s motion to dismiss for failure to state a
claim, or, alternatively, for summary judgment was due on May 21, 2024; it is now 14 days late.
8 ECF No. 38 at 2.
9 Id.
10 ECF No. 28.
11 ECF No. 34.
12 ECF No. 33.
7

2

“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party
asserting jurisdiction.” United States ex rel Johnson v. Raytheon Co., 93 F.4th 776,
783 (5th Cir. 2024) (internal citation and quotation marks omitted). “Courts consider
whether the FTCA applies via a Rule 12(b)(1) motion, because whether the
government has waived its sovereign immunity goes to the court’s subject[-]matter
jurisdiction.” Campos v. United States, 888 F.3d 724, 731 (5th Cir. 2018) (internal
citation and quotation marks omitted). “The FTCA waives sovereign immunity and
permits suit against the United States for monetary claims sounding in state tort law
that allege negligent or wrongful acts committed by government employees.” Dickson
v. United States, 11 F.4th 308, 312 (5th Cir. 2021) (internal citations omitted). But
the FTCA’s limited waiver is “subject to various exceptions which preserve the United
States’ sovereign immunity.” Id. (internal citation omitted). “If an exception applies,
a plaintiff’s FTCA claim is barred, and a federal court is without subject[-]matter
jurisdiction over the claim.” Campos, 888 F.3d at 730 (internal citation omitted).
The discretionary-function exception “withdraws the FTCA’s waiver of
sovereign immunity in situations in which, although a government employee’s
actions may have been actionable under state tort law, those actions were required
by, or were within the discretion committed to, that employee under federal statute,
regulation, or policy.” Dickson, 11 F.4th at (internal citation and quotation omitted).
Courts “use a two-part test to determine whether government officials’ actions fall
within the discretionary[-]function exception.” Campos, 888 F.3d at 731 (internal
citation omitted). “First, the relevant employees’ conduct must be a matter of choice.”
3

Id. (internal citation and quotation omitted). “Second, the choice or judgment must
be of the kind that the discretionary[-]function exception was designed to shield.” Id.
(internal citation and quotation omitted). “The plaintiff has the burden of
establishing that the test is not satisfied.” Id. at 731 (internal citation omitted).
Plaintiffs failed to carry their Rule 12(b)(1) burden to show that the Court has
subject-matter jurisdiction. Plaintiffs failed to respond to the United States’
invocation of the discretionary-function exemption to the FTCA’s limited waiver of
sovereign immunity, and thus Plaintiffs necessarily failed to carry their “burden of
establishing” that the two-part test for application of the discretionary-function
exception “is not satisfied.” Id. (internal citation omitted). Accordingly, because
Plaintiffs failed to carry their burden to show that the discretionary-function
exception to the FTCA’s limited waiver of sovereign immunity does not apply,
Plaintiffs failed to carry their Rule 12(b)(1) burden to establish the Court’s subjectmatter jurisdiction. And because the Court lacks subject-matter jurisdiction, the
Court must dismiss this action without prejudice. See F E D . R. C IV . P. 12(h)(3).

4

Accordingly,
IT IS ORDERED that the unopposed motion 13 of Defendant the United
States of America to dismiss this action for lack of subject-matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1) is GRANTED. This action is
DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction.
A final judgment will follow in accordance with Federal Rule of Civil Procedure 58.
New Orleans, Louisiana, this 4th day of June, 2024.

BRANDON S. LONG
UNITED STATES DISTRICT JUDGE

13

ECF No. 33.

5