Brown et al v. United States of America

Filing 16

ORDER (1) Granting Defendant's 5 Motion to Dismiss and (2) Dismissing Count II of Plaintiffs' Complaint. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KRIS ROENA BROWN and
AARON BROWN,
Plaintiffs,

Case No. 16-13003
Hon. Matthew F. Leitman

v.
UNITED STATES OF AMERICA,
Defendant.
_________________________________/
ORDER (1) GRANTING DEFENDANT’S MOTION TO DISMISS (ECF #5)
AND (2) DISMISSING COUNT II OF PLAINTIFFS’ COMPLAINT
In this action, Plaintiff Kris Roena Brown (“Ms. Brown”) alleges that on
October 4, 2014, she was driving on Ten Mile Road in Southfield, Michigan and
was struck by vehicle driven by a woman named Amanda Almanza (“Almanza”).
(See Compl. at ¶12, ECF #1 at 2, Pg. ID 2.) As a result of the collision, Ms. Brown
says that she suffered substantial injuries. (See Compl. at ¶¶ 23-24, ECF #1 at 4,
Pg. ID 4.)
On August 17, 2016, Ms. Brown and her husband Aaron Brown (“Mr.
Brown”) (collectively, the “Browns”) filed this personal injury action against
Defendant United States of America under the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b)(1) (the “FTCA”). (See Compl., ECF #1.) The Browns assert that the
Government is liable because Almanza is an employee of the Federal Emergency
1

Management Agency (“FEMA”) and was acting within the scope of her
employment at the time of the accident. (See id. at ¶4, ECF #1 at 1-2, Pg. ID 1-2.)
The Browns bring two claims in their Complaint. In count one, Ms. Brown
maintains that Almanza’s negligent driving caused her to suffer substantial and
serious injuries. (See id. at ¶¶ 23-24, ECF #1 at 4, Pg. ID 4.) In count two, Mr.
Brown asserts a claim for loss of consortium. (See id. at ¶29, ECF #1 at 5, Pg. ID
5.)
The Government has now moved to dismiss Mr. Brown’s loss of consortium
claim (the “Motion”). (See ECF #5.) The Government insists that the Court lacks
subject matter jurisdiction over that claim because Mr. Brown did not first present
the claim to FEMA before filing this action. The Court agrees.
Claims against the United States are barred in unless the Government has
waived its sovereign immunity, and “the terms of [the Government’s] consent to be
sued in any court define that court’s jurisdiction to entertain the suit.” Lehman v.
Nakshian, 453 U.S. 156, 160 (1981). The FTCA is a “jurisdictional statute” that
allows plaintiffs to file actions against the Government if certain conditions are
satisfied. Milligan v. U.S., 670 F.3d 686, 692 (6th Cir. 2012). Under the FTCA,
the Court has jurisdiction over a civil claim brought against the Government only if
the plaintiff first presented his or her claim to the appropriate administrative
agency. See 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim
2

against the United States … unless the claimant shall have first presented the claim
to the appropriate Federal agency”); see also Sherman v. United States, 48
F.Supp.3d 1019, 1024 (E.D. Mich. 2014) (“Because the plaintiff did not present his
administrative claim with ‘the appropriate [f]ederal agency’ before he commenced
this lawsuit [under the FTCA], this Court had no jurisdiction to adjudicate the
complaint when it was filed”).
Here, attorney Joseph Dedvukaj (“Mr. Dedvukaj”) filed a claim on Ms.
Brown’s behalf with FEMA on March 17, 2016. (See ECF #11-3 at 10-11, Pg. ID
84-85.) That claim did not allege that Mr. Brown suffered any losses nor did it
seek any damages for loss of consortium. In fact, the claim form is signed by Ms.
Brown (not Mr. Brown) as the “claimant” and lists only the injuries that she claims
to have suffered (none of which include loss of consortium on her behalf or her
husband’s behalf). (See id. at 10, Pg. ID 84.)
The Browns insist that “[i]t is clear taking the totality of the claim material
that [Mr. Brown] was making a claim as well.” (Browns Resp. Br. at 5, ECF #10 at
5, Pg. ID 61.) The Court disagrees. The “claim material” included the claim form
itself, a cover letter from Mr. Dedvukaj, “household services statements”
describing the services that were provided to Ms. Brown, and Ms. Brown’s
medical records. (See ECF #11-3.)

None of those documents, reviewed

3

individually or collectively, can reasonably be read as asserting a claim for loss of
consortium on Mr. Brown’s behalf.
For instance, the heading of the cover letter from Mr. Dedvukaj indicates
that it is “Re: Kris Roena Brown,” and the letter’s first sentence reads “I am
making a claim on behalf of my client Kris Roena Brown….” (See id. at 2, Pg. ID
76; emphasis added.) The letter concludes by warning FEMA that if it refused to
accept or deny the claim within the time period prescribed by law, Mr. Dedvukaj
would “immediately commence suit against the United State[s] of America for the
tortious conduct of the FEMA employee causing the injuries and damages
sustained by Kris Brown, past, present and future.” (Id. at 4, Pg. ID 78; emphasis
added). The cover letter never even mentions Mr. Brown, nor says that he is
asserting a claim for loss of consortium. (See id. at 2, Pg. ID 76.) And the
remaining documents submitted to FEMA reference Mr. Brown just twice: once in
a box on the claim form that asks for the “[n]ame, address of claimant, and
claimant’s personal representative” (id. at 10, pg. ID 84.) and then as Ms. Brown’s
“service provider” on various “household services statement” forms (see id. at 1532, Pg. ID 89-106). Those forms list the services Mr. Brown provided to Ms.
Brown, such as “vacuuming,” “dusting,” and “laundry.” (Id.) In no way do these
documents assert any kind of claim for lack of consortium on Mr. Brown’s behalf.

4

The Browns resist this conclusion based upon the decision in Emery v.
United States, 920 F. Supp. 788 (W.D. Mich. 1996). In Emery, the district court
held that a claim form submitted to the Department of Health and Human Services
put the department on notice of a spouse’s claim for loss of consortium. But
Emery is different from this case in one critical way. The claim form at issue in
Emery expressly stated that the claimants’ wife “ha[d] suffered a loss of
consortium, love and affection.” Id. at 791. Thus, “it [was] clear from the face of
the form that [the spouse] was alleging a claim for loss of consortium against the
government.” Id.

As described above, the claim form and accompanying

documents in this case contain no such claim on Mr. Brown’s behalf. Therefore,
Emery does not save Mr. Brown’s claim for loss of consortium.
Accordingly, for the reasons stated above, the Court concludes that Mr.
Brown did not present his claim for loss of consortium to FEMA before filing this
action, and the Court therefore lacks jurisdiction to adjudicate that claim. The
Motion is therefore GRANTED and count two of the Browns’ Complaint is
DISMISSED.
IT IS SO ORDERED.

Dated: December 12, 2016

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

5

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on December 12, 2016, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

6