Storey et al v. United States of America et al
MEMORANDUM OPINION re 59 Order on Motion to Dismiss. Signed by Senior Judge Neal B. Biggers on 08/07/2017. (bds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ROBERT IRVIN STOREY, and
LETA M. STOREY
CIVIL ACTION NO. 3:16-CV-00194-NBB-RP
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA, d/b/a
Veterans Affairs Medical Center-Memphis
Presently before the court is a motion to dismiss for lack of subject matter jurisdiction
filed by the defendants. Upon due consideration of the motion, response, and applicable
authority, the court is ready to rule.
Factual and Procedural Background
The plaintiffs, Robert and Leta Storey, bring this action pursuant to the Federal Tort
Claims Act (“FTCA”). Robert alleges that the negligence of employees of the Veterans Affairs
Medical Center (“VAMC”) in Memphis, Tennessee caused him to sustain personal injuries.
From October 9, 2007 until November 8, 2013, VAMC employees allegedly prescribed
Robert four (4) times the maximum allowable dosage of Rosuvastatin in combination with
Gemfibrozil. Robert contends that this combination caused gallstones, cholecystitis, sepsis and
pancreatitis, as well as hospitalizations on three separate occasions.
Leta, Robert’s wife, asserts a derivative claim for loss of consortium and alleges that
VAMC employees’ actions caused her emotional pain and suffering. The defendants have filed
the instant motion to dismiss for lack of jurisdiction as to Leta’s claim only.
Standard of Review
“Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party
to challenge the subject matter jurisdiction of the court to hear a case.” Ramming v. U.S., 281
F.3d 158, 161 (5th Cir. 2001). In determining a Rule 12(b)(1) motion, the court may consider (1)
the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts. King v. U.S. Dep’t of Veterans Affairs, 728 F.3d 410, 413 (5th Cir. 2013). The
burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Id.
“Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact
exist.” Id. The court may properly dismiss a claim for lack of subject matter jurisdiction if it
determines that it lacks either the statutory or constitutional authority to adjudicate the claim.
Home Builders Ass’n v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
In moving to dismiss for lack of jurisdiction, the defendants argues that Leta failed to
exhaust her administrative remedies. It is well-settled that a plaintiff must first exhaust her
administrative remedies prior to filing an action under the FTCA. Gregory v. Mitchell, 634 F.2d
199, 203 (5th Cir. 1981). The FTCA provides that “an action shall not be instituted upon a claim
against the United States . . . unless the claimant shall have first presented the claim to the
appropriate Federal agency . . . .” 28 U.S.C. § 2675(a) (emphasis added). “Presentment of a
claim to the appropriate agency and denial of that claim by the agency in writing . . . are
prerequisites to a tort suit brought against the United States.” Flory v. U.S., 138 F.3d 157, 159
(5th Cir. 1998). Thus, a plaintiff’s failure to comply with the presentment requirement deprives
the court of subject matter jurisdiction. Price v. U.S., 69 F.3d 46, 54 (5th Cir. 1995).
Defendants argue that Leta’s claims should be dismissed because she undisputedly failed
to submit a notice of claim with the relevant federal agency as required by the FTCA. Leta,
however, argues that the FTCA’s notice requirement was satisfied when Robert filed his
administrative claim with the United States Department of Veterans Affairs (“USDVA”).
According to Leta, “[b]ecause [her] claim is entirely derivative of [Robert’s] claim for medical
malpractice,” the USDVA “had constructive notice, if not actual notice, of [her] claims.”
The purpose behind the FTCA’s notice requirement is “to ensure that the agency is
apprised of the circumstances underlying the claim, so that the agency may conduct an
investigation and respond to the claimant by settlement of defense.” Brown v. U.S., 838 F.2d
1157, 1160 (11th Cir. 1988) (citing Adams v. U.S., 615 F.2d 284, 289 (5th Cir. 1980)). In the
instant case, Leta was not identified as a claimant nor did she sign Robert’s form. Further,
Robert failed to include Leta’s loss of consortium claim within his notice to the USDVA. Thus,
the court is unpersuaded that Robert’s notice satisfied Leta’s obligation under the FTCA. See
Saccuci, at *3 (finding that the plaintiff failed to meet the FTCA’s jurisdictional prerequisites
because she was not identified as a claimant, did not sign as a claimant, and her claim was not
included in the body of her spouse’s administrative claim).
Moreover, courts that have addressed the question have routinely held that “a spouse’s
loss of consortium claim must be separately exhausted in order the give the  court subjectmatter jurisdiction.” Wilke v. U.S., 2009 WL 590450, at *3 (S.D. Miss. Mar. 5, 2009); see also
Saccuci v. U.S., 2008 WL 11338797 (D. Ariz. June 19, 2009); Pipkin v. U.S. Postal Service, 951
F.2d 272 (10th Cir. 1991); Poynter v. U.S., 55 F. Supp. 2d 558 (W.D. La. 1999); Walker v. U.S.,
471 F. Supp. 38 (D.C. Fla. 1978) aff’d 597 F.2d 770 (5th Cir. 1979). Accordingly, the court
finds that Leta failed to meet the FTCA’s jurisdictional prerequisites and, consequently, that the
court is without jurisdiction to consider her claim.
Based on the foregoing discussion, the court finds that the defendants’ motion to dismiss
Leta Storey’s claim for lack of jurisdiction is well-taken and should be granted. A separate order
in accord with this opinion shall issue this day.
This, the 7th day of August, 2017.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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