Calhoun v. UT Medical Group, Inc. et al

Filing 17

ORDER granting 13 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Samuel H. Mays, Jr on 7/30/2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

HUEY C. CALHOUN,
Plaintiff,
v.
UNITED STATES and UT MEDICAL
GROUP, INC.,

)
)
)
)
)
)
)
)

No. 12-2307

)
)

Defendants.

ORDER GRANTING PLAINTIFF’S MOTION TO DISMISS

Before the Court is Plaintiff Huey C. Calhoun‟s (“Calhoun”)
June 20, 2012, Motion to Dismiss without prejudice for lack of
subject matter jurisdiction.

(Mot., ECF No. 15.)

Defendant the

United States (the “Government”) responded on June 21, 2012.
(Resp., ECF No. 15.)

The Government contends dismissal should

be with prejudice because this is the second action filed in
federal

court.

For

the

following

reasons,

GRANTS

Calhoun‟s

Motion and dismisses his suit without prejudice.
I.

Background
On January 10, 2010, Calhoun went to the Memphis Veterans

Affairs Medical Center for a colonoscopy screening.
2, ECF No. 1.)

(Compl. ¶

The physicians who performed the colonoscopy

failed to enter his patient identification data into the proper

data fields.

(Id. ¶ 13.)

As a result, his photographs were

exchanged with those of another patient, and he was incorrectly
diagnosed with colon cancer.

(Id. ¶ 14.)

Although a followup

biopsy and CT scan of his abdomen showed no cancer, he underwent
surgery on February 5, 2010.

(Compl. ¶¶ 15-19.)

No cancer was

detected in the colon, but Calhoun‟s surgeons removed two feet
of his colon to examine it for cancer.
no

cancer

in

the

removed

colon.

(Id. ¶ 19.)

(Id.

¶¶

There was

20-21.)

Calhoun

alleges he suffered a heart attack due to surgical stress.
¶

23.)

Based

on

the

erroneous

photographs,

a

(Id.
second

colonoscopic examination was conducted on March 24, 2010.
¶ 25.)

It found that there was no cancer.

(Id.)

(Id.

No physicians

recommended a repeat colonoscopic examination in view of the
negative pathology report and negative CT scan prior to surgery.
(Id. ¶ 26.)
Calhoun

filed

an

Administrative

Tort

claim

with

the

Department of Veterans Affairs (“Veteran Affairs”) on March 30,
2011.

(Id. ¶ 8.)

Veterans Affairs denied Calhoun‟s claim on

September 20, 2011, but provided him an opportunity to have his
claim reconsidered.

(Id. ¶ 9.)

He requested reconsideration on

October 25, 2011, but he has not received a response.
10-11.)

Calhoun

moves

to

dismiss

because,

(Id. ¶¶
as

his

reconsideration is still pending, his suit is not yet ripe.
This is the second action he has filed against the Defendants.
2

The

first

voluntarily

suit,

alleging

dismissed

on

the
June

same
29,

facts

2011.

and

claims,

(Consent

Order

was
in

Calhoun v. United States et al., No. 11-2240, ECF No. 7.)
II.

Jurisdiction

The Government is a defendant in this matter.

The Court

has jurisdiction pursuant to 28 U.S.C. § 1346.
III. Analysis
“A voluntary dismissal under [Rule] 41(a) has the effect of
a judgment with prejudice when . . . it is the second suit based
on the same transaction.”

Anderson v. Aon Corp., 614 F.3d 361,

365 (6th Cir. 2010); accord John A. King, LLC v. Hosp. Corp.,
381 F. App‟x 577, 579 (6th Cir. 2010); Myrette-Crosley v. Mortg.
Elec. Registration Sys., No. 11-05660, 2012 U.S. Dist. LEXIS
23139, at *8 (N.D. Cal. Feb. 23, 2012).
By

its

plain terms, Rule 41(a)(1)(B) applies only to a

“notice of dismissal.”

“„[T]he two dismissal rule applies only

when the second dismissal is by notice under rule 41(a)(1).
does not apply to a dismissal by stipulation .

.

It

. nor to

dismissal by court order under Rule 41(a)(2).‟” Sutton Place
Dev. Co. v. Abacus Mortg. Inv. Co., 826 F.2d 637, 640 (7th Cir.
1987) (quoting 9 C. Wright & A. Miller, Federal Practice and
Procedure § 2638, at 188 (1971)); see also Smith v. Bank of Am.,
N.A., No. 0:10-cv-3168-BMS-JRM, 2012 U.S. Dist. LEXIS 30769, at
*6 (D. S.C. Feb. 21, 2012) (holding the double dismissal rule
3

applies only when the second dismissal is by notice); Richards
v. Burgett, Inc., No. 10 C 7580, 2011 U.S. Dist. LEXIS 35987, at
*13 (N.D. Ill. April 4, 2011) (holding Rule 41(a)(1)(B) does not
apply when “dismissal is made by motion and granted by court
order.”); Loubier v. Modern Acoustics, Inc., 178 F.R.D. 17, 20
(D. Conn. 1998) (“The plain language of Rule 41(a) indicates
that the two-dismissal rule will apply only when the second
action . . . was voluntarily dismissed by notice.”).
Calhoun has not filed a notice of dismissal.

He has filed

a motion to dismiss for lack of subject matter jurisdiction.
See Williams v. Seattle Pub. Schs., No. 09-1331, 2010 U.S. Dist.
LEXIS 98745, at *6 (W.D. Wash. Sept. 8, 2010) (holding second
suit

did

not

dismissal).

bar

litigation

there

was

no

notice

of

Any order by this Court would not be a dismissal

under Rule 41(a)(1).
court

because

under

Rule

It would be a dismissal by order of the

41(a)(2)

and

so

would

not

operate

as

an

adjudication on the merits.
Calhoun‟s grounds for dismissal are well taken.
lacks jurisdiction.

The Court

The only source of jurisdiction alleged is

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, which
does

not

create

liability.

immunity . . . .‟”
2012

U.S.

App.

LEXIS

“„[I]t

merely

waives

sovereign

Huddleston v. United States, No. 11-5873,
10314,

at

*3

(6th

Cir.

May

21,

2012)

(quoting Myers v. United States, 17 F.3d 890, 894 (6th Cir.
4

1994)).

Absent that waiver, the court lacks jurisdiction to

hear a suit against the Government.

See Franklin Sav. Corp. v.

United States, 385 F.3d 1279, 1287 (10th Cir. 2004) (holding
that the extent of the Government‟s consent to suit governs the
extent of jurisdiction over such suits).

Under the FTCA, a

plaintiff must exhaust his administrative remedies against the
Government before initiating a lawsuit by presenting his claim
to the appropriate agency and having his claim denied.

Harris

v. City of Cleveland, 7 F. App‟x 452, 458 (6th Cir. 2005); 29
U.S.C. § 2675(a).

Calhoun has not received a final denial.

“The failure to comply with this jurisdictional prerequisite is
grounds for dismissing a claim under the FTCA.”

Izquierdo v.

Boldin, No. 11-CV-1826, 2012 U.S. Dist. LEXIS 38157, at *4 (N.D.
Ohio March 21, 2012); see also Goosby v. U.S., 545 F. Supp. 2d
725, 733 (W.D. Tenn. 2008) (listing suits dismissed for failure
to file an administrative claim).

The Court lacks jurisdiction

while Calhoun‟s request for reconsideration is pending.
IV.

Conclusion

Calhoun‟s

suit

against

the

Government

is

Therefore, this action is DISMISSED without prejudice.

5

premature.

So ordered this 30th day of July, 2012.

/s Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

6