North et al v. United States of America
MEMORANDUM OF THE COURT. Signed by District Judge Todd J. Campbell on 2/28/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
PHILLIP NORTH, et al.
UNITED STATES OF AMERICA
) NO. 3-12-1057
) JUDGE CAMPBELL
Pending before the Court is Defendant’s Motion to Dismiss (Docket No. 13). The Court
heard argument on the Motion on February 13, 2013. For the reasons stated herein, Defendant’s
Motion is GRANTED, and this action is DISMISSED.
Plaintiffs allege that they sustained property damage as a result of the May 2010 Cumberland
River flood and that Defendant, through the U.S. Corps of Engineers and the National Weather
Service, caused their injury. Plaintiffs’ Complaint is brought pursuant to the Federal Tort Claims
Act and asserts claims of negligence, gross negligence, trespass to chattel and private nuisance.
Defendant has moved to dismiss this action, arguing that this Court lacks subject matter
jurisdiction because Plaintiffs failed to exhaust their required administrative remedies before filing
MOTIONS TO DISMISS
For purposes of a motion to dismiss, the Court must take all of the factual allegations in the
complaint as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 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. Id. A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Id. at 1950. A legal conclusion couched as a factual allegation need not be accepted as true on a
motion to dismiss, nor are recitations of the elements of a cause of action sufficient. Fritz v. Charter
Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
FEDERAL TORT CLAIMS ACT
Under the Federal Tort Claims Act (“FTCA”), a tort action shall not be instituted against the
United States for money damages unless the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally denied by the agency. “The failure
of the agency to make final disposition of a claim within six months after it is filed shall, at the
option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of
exhaustion.” 28 U.S.C. § 2675(a).
Here, the parties do not dispute that Plaintiffs filed their lawsuit 182 days after the filing of
their administrative claim. Plaintiffs argue that “six months” in the above statute equals 180 days.
Defendant contends that “six months” means six months, and Plaintiffs filed this action prematurely.
The Supreme Court has stated that the FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative remedies. McNeil v. United States, 113 S.Ct.
1980, 1984 (1993). The Court in McNeil also stated that Congress intended to require complete
exhaustion before invocation of the judicial process. Id.1
Nowhere in McNeil does the Court say “180 days” as represented by the Plaintiffs.
The Court finds that “six months” in this statute means six months, not 180 days. Had
Congress intended for the time to equal 180 days, it could have said “180 days.” Not every month
has 30 days, so 180 days may or may not equal six months, depending upon which months are
involved. More importantly, however, the statute says “six months.”
The Court has no discretion to alter the time period required by statute. Hughes v. Wilson,
2005 WL 1620410 at * 2 (S.D. Ohio July 5, 2005). To do so would impermissibly expand the scope
of this Court’s limited jurisdiction as defined by Congress. Id. (citing Kokkonen v. Guardian Life
Ins. Co. of America, 114 S.Ct. 1673 (1994)).2
Plaintiffs were required to wait at least six months after they filed their administrative claim
before filing this FTCA lawsuit, and they did not. Therefore, the Court lacks jurisdiction to hear
For these reasons, Defendant’s Motion to Dismiss (Docket No. 13) is GRANTED.
Accordingly, this action is DISMISSED for lack of subject matter jurisdiction.
IT IS SO ORDERED.
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE
In Otten v. Bullock, cited by Plaintiffs, the Court did not state that “district courts
have no jurisdiction over a FTCA action which is filed prior to the passage of 180 days after a tort
claim is received by an agency.” That assertion was made by a party to the lawsuit.
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