Tambasco et al v. United States Department of Army et al

Filing 10

MEMORANDUM (Order to follow as separate docket entry) re 6 MOTION to Dismiss filed by Claus D Hensley, United States Department of Army, Tobyhanna Army Depot Police Department. Signed by Honorable A. Richard Caputo on 3/8/18. (dw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT TAMBASCO and LORI
TAMBASCO,

NO. 3:17-CV-1857

Plaintiffs,
(JUDGE CAPUTO)

v.
UNITED STATES DEPARTMENT
OF ARMY, et al.,
Defendants.

MEMORANDUM
Presently before me is the Motion to Dismiss (Doc. 6) filed by United States
Department of Army, Tobyhanna Army Depot Police Department, and Claus D.
Hensley. For the reasons that follow, the motion to dismiss will be granted in its
entirety.
I. Background
On October, 11, 2017, Plaintiffs Robert Tambasco (“Mr. Tambasco”) and Lori
Tambasco (“Mrs. Tambasco”) commenced this action under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 2671 et seq., against the United States Department of
Army, Tobyhanna Army Depot Police Department, and Claus D. Hensley (“Mr.
Hensley”). (See Doc. 1, generally). The Complaint alleges that on January 1, 2015,
Mr. Tambasco was walking on Main Street in Tobyhanna, Pennsylvania when he was
struck by a vehicle operated by Mr. Hensley, a military police officer for the United
States Department of Army employed by the Tobyhanna Army Depot Police
Department. (See id. at ¶¶ 13-25). As a result of the accident, Mr. Tambasco
sustained multiple injuries. (See id. at ¶¶ 26-27).
In the Complaint, Mr. Tambasco asserts claims for negligence and Mrs.
Tambasco asserts loss of consortium claims against the United States Department of
Army, Tobyhanna Army Depot Police Department, and Mr. Hensley. (See id. at

Counts 1-6).
The United States Department of Army, Tobyhanna Army Depot Police
Department, and Mr. Hensley filed the instant motion to dismiss on December 18,
2017. (See Doc. 6, generally). In their supporting brief, they argue that: (1) the only
properly named Defendant in this FTCA action is the United States of America; and
(2) Mrs. Tambasco’s loss of consortium claim should be dismissed for failure to
exhaust her administrative remedies. (See Doc. 7, generally). The motion to dismiss
has been fully briefed and is now ripe for disposition.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, for failure to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). “Under the ‘notice pleading’ standard
embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come
forward with ‘a short and plain statement of the claim showing that the pleader is
entitled to relief.’” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d
Cir. 2014) (quoting Fed. R. Civ. P. 8(a)(2)).
When resolving a Rule 12(b)(6) motion, “a court must consider no more than
whether the complaint establishes ‘enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary elements’ of the cause of action.”
Trzaska v. L’Oreal USA, Inc., 865 F. 3d 155, 162 (3d Cir. 2017) (quoting Connelly v.
Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)). In reviewing the sufficiency
of a complaint, a court must take three steps: (1) identify the elements of the claim; (2)
identify conclusions that are not entitled to the assumption of truth; and (3) assume the
veracity of the well-pleaded factual allegations and determine whether they plausibly
give rise to an entitlement to relief. See Connelly, 809 F.3d at 787 (citations omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
III. Discussion
The first issue raised by Defendants in their motion to dismiss is that the United
States Department of Army, Tobyhanna Army Depot Police Department, and Mr.
Hensley are improper Defendants in this FTCA action. (See Doc. 7, 4-6); see, e.g.,
Brobst v. United States, 659 F. App’x 135, 137 (3d Cir. 2016) (“the only proper
defendant in an FTCA action is the United States”); CNA v. United States, 535 F.3d
132, 138 n.2 (3d Cir. 2008) (“The Government is the only proper defendant in a case
brought under the FTCA.”). Plaintiffs do not dispute this and have agreed that the
United States of America should be substituted as the sole Defendant in this action.
(See Doc. 8, 4-5). As such, the United States of America will be substituted as the
proper Defendant and all claims against the United States Department of Army,
Tobyhanna Army Depot Police Department, and Mr. Hensley will be dismissed with
prejudice.
Defendants also seek dismissal of Mrs. Tambasco’s loss of consortium claim
because she did not exhaust her administrative remedies prior to bringing this action.
(See Doc. 7, 6-8). In their opposition brief, Plaintiffs do not address this argument.
(See Doc. 8, generally). Rather, Plaintiffs simply state that Pennsylvania law
recognizes a claim for loss of consortium and that Mrs. Tambasco was deprived of the
assistance and society of her husband as a result of the action (See id. at 6-7).
Mrs. Tambasco’s loss of consortium claim will be dismissed with prejudice.
First, Plaintiffs do not aver in the Complaint that Mrs. Tambasco exhausted her
administrative remedies. (See Doc. 1, generally; see also id. at ¶¶ 9-12). And,
“[w]hen the law of Pennsylvania is applicable, court have ‘consistently held that
spouses claiming loss of consortium under the FTCA are required to file a separate
administrative claim as a jurisdictional prerequisite’ to bringing suit.” Matsko v.
United States, No. 02-76, 2005 WL 2416337, at *5 (W.D. Pa. Sept. 30, 2005) (quoting
Nazarenus v. United States, No. 95-4629, 1996 WL 156408, at *2 (E.D. Pa. Apr. 4,
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1996)); Smiley v. Artisan Builders, No. 13-7411, 2015 WL 996366, at *3 (E.D. Pa.
Mar. 4, 2015); accord Barber v. Kone, Inc., 118 F. App’x 276, 278 (9th Cir. 2004);
Pipkin v. United States Postal Service, 951 F.2d 272, 273 (10th Cir. 1991).
Second, Plaintiffs, as stated, did not address in their opposition brief
Defendants’ argument that Mrs. Tambasco did not exhaust her administrative remedies
before filing this action. (See Doc. 8, generally). By failing to respond to Defendants’
argument on this issue, this portion of Defendants’ motion to dismiss is unopposed
and Mrs. Tambasco’s claim will be dismissed. See M.D. Pa. L.R. 7.6; see also
Sikkelee v. Precision Airmotive Corp., No. 07-886, 2011 WL 1344635, at *4 (M.D.
Pa. Apr. 8, 2011) (dismissing claims as unopposed when the plaintiff failed to respond
to arguments made by the defendants in support of their motion to dismiss); Lada v.
Delaware Cnty. Cmty. Coll., No. 08-4754, 2009 WL 3217183, at *10 (E.D. Pa. Sept.
30, 2009) (“To put it simply: plaintiffs who fail to brief their opposition to portions of
motions to dismiss do so at the risk of having those parts of the motions to dismiss
granted as uncontested.”); Mussari v. Jermyn Borough, No. 07-948, 2007 WL
3231800, at *2 (M.D. Pa. Oct. 31, 2007).1
IV. Conclusion
For the above stated reasons, the motion to dismiss will be granted, the United
States of America will be substituted as the sole Defendant in this action, and Mrs.
Tambasco’s loss of consortium claim will be dismissed with prejudice.
An appropriate order follows.
March 8, 2018
Date

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/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

Mrs. Tambasco’s loss of consortium claim will be dismissed with prejudice
because her failure to respond to Defendants’ argument demonstrates that leave to
amend would be futile.
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