Wilke et al v. United States of America et al

Filing 114

ORDER granting 98 Motion to Dismiss for Lack of Jurisdiction Signed by District Judge Louis Guirola, Jr on 03/05/09 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF MISSISSIPPI S O U T H E R N DIVISION W A L L A C E WILKE and G E O R G I A WILKE v. U N I T E D STATES OF AMERICA § § § § § §

P L A I N T I FF S C A U S E NO. 1:07cv465 LG-JMR DEFENDANT

M E M O R A N D U M OPINION AND ORDER G R A N T I N G DEFENDANT'S MOTION TO DISMISS THE MATTER BEFORE THE COURT is the Motion [98] to Dismiss for Lack of S u b j e c t-M a tte r Jurisdiction. The United States seeks dismissal of Georgia Wilke's claims, a s s e r t in g that she failed to exhaust her administrative remedies prior to filing this Federal Tort C la im s Act suit. The Plaintiffs filed a response. After due consideration of the parties' s u b m is s io n s and the relevant law, it is the Court's opinion that the Motion should be granted. D IS C U S S IO N W a lla c e and Georgia Wilke brought this medical malpractice action against the United S ta te s under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Wallace Wilke seeks d a m a ge s for injuries he received at the VA hospital in Biloxi, Mississippi. Georgia Wilke seeks damages for a derivative loss of consortium claim. The United States asserts that although W a l l a c e presented an administrative claim regarding his injuries to the VA prior to filing this s u it, Georgia did not. Because FTCA claimants are required to first exhaust administrative re m e d i e s by presenting an administrative claim to the appropriate federal agency, the United S ta te s contends that the Court does not have subject matter jurisdiction of Georgia's loss of c o n s o rtiu m claim. See Johnson v. United States, 460 F.3d 616, 621 (5th Cir. 2006); 28 U.S.C. § 2 6 7 5 (a ). The United States has provided an affidavit from the VA general counsel confirming th a t Georgia Wilke did not file an administrative claim with the VA. Ct. R. 98-3. Further, a

c la im for loss of consortium is not asserted on her behalf in Wallace's administrative claim, nor d id she sign the claim form. See Ct. R. 14-2. The Plaintiffs argue that Wallace presented a claim for his injuries to the VA, and as G e o r gi a ' s claim is derivative of Wallace's, she is not required to have presented a separate a d m in is tra tiv e claim in order to have exhausted her administrative remedies. THE LEGAL STANDARD: T h e United States' challenge is to the Court's subject matter jurisdiction under FED. R. C IV. P. 12(b)(1). In ruling on a motion to dismiss under Rule 12(b)(1), the Court may rely on: "1) th e complaint alone; 2) the complaint supplemented by undisputed facts; or 3) the complaint s u p p l e m e n t e d by undisputed facts and the court's resolution of disputed facts." MCG, Inc. v. G r e a t W. Energy Corp., 896 F.2d 170, 176 (5th Cir. 1990) (citation omitted). There are no d i s p u te d facts at issue. The Court will rely on the allegations of the complaint and the United S ta te s ' affidavit in deciding this Motion. E X H A U STIO N OF LOSS OF CONSORTIUM CLAIM: A jurisdictional prerequisite to the institution of a Federal Tort Claims Act suit against th e United States is the exhaustion of the claimant's administrative remedies through the filing of a n administrative claim with the appropriate federal agency. See Williamson v. United States D e p ' t of Agric., 815 F2d. 368, 378 (5th Cir. 1987) (barring an FTCA suit in which the plaintiff d id not file an administrative claim). Section 2675(a) of title 28 of the United States Code p r o v i d e s in part: [a ]n action shall not be instituted upon a claim against the United States . . . unless th e claimant shall have first presented the claim to the appropriate Federal agency a n d his claim shall have been finally denied by the agency in writing and sent by c e rtifie d or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any

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tim e thereafter, be deemed a final denial of the claim for purposes of this section. T h e Plaintiffs acknowledge that Georgia Wilke did not file an administrative tort claim fo r loss of consortium. They contend that the United States' investigation of Wallace's a d m in is tra tiv e claim was sufficient to exhaust Georgia's claim as well, relying on Adams v. U n i te d States, 615 F.2d 284 (5th Cir. 1980). In that case, the Fifth Circuit held that there are only tw o requirements imposed by Section 2675: (1) the claimant must give the agency written notice s u ffic ie n t to enable the agency to investigate; and (2) the claimant must place a value on her c la im . Id. at 289. Plaintiffs also rely on Rise v. United States, 630 F.2d 1068 (5th Cir. 1980), w h e r e in the Fifth Circuit stated that "a Federal Tort Claims Act suit can be based on particular fa c ts and theories of liability only when those facts and theories can be considered part of the p l a in t iff's administrative claim." Id. at 1071. The court in that case agreed that "if an a d m in is tra tiv e claim fairly apprises the Government of the facts leading to the claimant's injury, n e w theories of why those facts constitute tortious conduct can be included in a federal court c o m p l a in t ." Id. However, both Adams and Rise concern the sufficiency of the allegations of the in ju re d person. Neither provides guidance for whether the claim of another person can be in fe rre d from the allegations of the injured person. Courts that have addressed this question have almost uniformly held that a spouse's loss o f consortium claim must be separately exhausted in order to give the district court subject-matter ju ris d ic tio n . For example, in Pipkin v. United States Postal Service, 951 F.2d 272 (10th Cir. 1 9 9 1 ), the court held that a wife's failure to assert an administrative claim for loss of consortium i n her own behalf, and the husband's failure to specifically assert a loss of consortium claim re s u lte d in the court's lack of subject-matter jurisdiction. Id. at 273. In Poynter v. United States, 55 F. Supp. 2d 558 (W.D. La. 1999), the court held that "Mr. Poyner

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c a n n o t presume that his independent [loss of consortium] claim is automatically raised or implied in the administrative claim of his wife, and there is no indication from the face of the a d m in i s tra tiv e claim form that Mr. Poyner was asserting a claim in his own right." Id. at 564. The claim was therefore dismissed for lack of subject-matter jurisdiction. Id. Finally, in Walker v . United States, 471 F.Supp. 38 (D.C. Fla. 1978), aff'd 597 F.2d 770 (5th Cir. 1979), the court h e l d that: T h e law is settled that one person cannot file a prerequisite administrative tort c la im for another person, and specifically one spouse may not presume that his or h e r own independent claim is automatically raised or implied in the administrative c la im of the other spouse. In short, one spouse may not rely on the administrative c la im of another spouse. I d . at 42 (citations omitted). The Walker court would not even infer a loss of consortium claim fo r the non-filing wife when the injured husband's administrative claim included a loss of c o n s o rtiu m claim for himself. Id. In the opinion of the Court, Georgia Wilke has not exhausted administrative remedies in re ga rd to her claim for loss of consortium. Thus, the Court lacks subject-matter jurisdiction, and th e defendant's motion to dismiss will be granted. I T IS THEREFORE ORDERED AND ADJUDGED that the Defendant's Motion [98] to Dismiss for Lack of Subject-Matter Jurisdiction is GRANTED. Georgia Wilke's claim for lo s s of consortium is DISMISSED. S O ORDERED AND ADJUDGED this the 5 th day of March, 2009.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR. U N IT E D STATES DISTRICT JUDGE

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