Leal, et al v. Br Healthcare Solutions, LLC, et al

Filing 5

ORDER GRANTING 3 Motion to Dismiss for Lack of Jurisdiction. Terminated party United States Of America. Signed by Judge Xavier Rodriguez. (aej)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
NANCY LEAL AND JOE VALDEZ,
INDIVIDUALLY AND AS ALL HEIRS TO
THE ESTATE OF CRESCENCIA
VALDEZ, DECEASED,
Plaintiffs,
v.
BR HEALTHCARE SOLUTIONS, LLC
D/B/A KARNES CITY HEALTH AND
REHABILITATION CENTER AND
THE UNITED STATES OF AMERICA,

§
§
§
§
§
§
§
§
§
§
§
§
§

Civil Action No. SA-17-CV-00740-XR

Defendants.
ORDER
Before the Court is Defendant United States of America’s Motion to Dismiss for Lack of
Subject Matter Jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Plaintiffs’ Original Petition was filed on May 26, 2017 in the District Court, 218th Judicial
District, Karnes County, Texas, asserting causes of action for negligence against defendants BR
Healthcare Solutions, LLC and Rayford Mitchell, M.D. (Plaintiffs’ Original Petition at ¶¶ 5459). The case was thereafter removed to this Court, and Defendant United States of America
was substituted in place of prior defendant Rayford Mitchell, M.D. after it was determined that
Mitchell was an employee of the Government “acting within the scope of his office or
employment at the time of the incident out of which the claim arose.” See 28 U.S.C § 2679(d)(2)
(“Such action or proceeding shall be deemed to be an action or proceeding brought against the
United States under the provisions of this title and all references thereto, and the United States
shall be substituted as the party defendant.”). Defendant United States’ Rule 12(b)(1) Motion
1

contends that this Court lacks subject-matter jurisdiction over claims asserted against the United
States in the instant action because Plaintiffs have not previously filed an administrative claim
with the appropriate federal agency, and thus have failed to comply with the statutory
requirements of the Federal Tort Claims Act (FTCA), 28 U.S.C § 2675(a).
The FTCA provides the exclusive remedy for parties seeking money damages against the
United States “for injury or loss of property, or personal injury or death arising or resulting from
the negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1). “[E]xact compliance”
with the statutory requirements of the FTCA is a condition precedent to maintaining suit
thereunder. Childers v. United States, 442 F.2d 1299, 1303 (5th Cir. 1971). The FTCA requires
that, prior to instituting a legal action against the United States in federal court, the claimant must
first present their claim to the appropriate federal agency and the claim must be finally denied by
the agency in writing. 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a [tort] claim
against the United States . . . 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 in writing
and sent by certified or registered mail.”). Accordingly, until a claimant has complied with the
statutory requirements of § 2675(a), federal courts do not have subject-matter jurisdiction over
an action brought against the United States under the FTCA. Johnson v. United States, 502 F.
App’x 412, 420 (5th Cir. 2012) (quoting McAfee v. 5th Cir. Judges, 884 F.2d 221, 222–23 (5th
Cir. 1989)); Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995). If a court lacks subject-matter
jurisdiction over an action, “the court must dismiss the action.” FED. R. CIV. P. 12(h)(3).

2

The factual allegations contained in Plaintiffs’ Original Petition do not indicate that
Plaintiffs filed an administrative claim with the United States Department of Health and Human
Services prior to filing their Original Petition in state court. (See Plaintiffs’ Original Petition at
¶¶ 10-53).

The United States contends that they have not, and no response was filed in

opposition. Because Plaintiffs have failed to exhaust their administrative remedies, they are
barred from bringing suit against the United States in federal court under the FTCA. See 28
U.S.C. § 2675(a). As a result, this Court lacks subject-matter jurisdiction over Plaintiffs’ claim
against the United States in the instant action at this time, and Plaintiffs’ claim against the United
States must be dismissed. See FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss the action.”); Price v. United States,
69 F.3d 46, 54 (5th Cir. 1995) (“The subject matter jurisdiction of the court is conditioned on
compliance with 28 U.S.C. § 2675(a)”); see also 28 U.S.C. § 2679(d)(5) (an action previously
dismissed for failure to present an administrative claim may be deemed to be timely presented
under § 2401(b) if it would have been timely had it been filed on the date the underlying civil
action was commenced and the claim is presented to the appropriate Federal agency within 60
days after dismissal of the civil action).
Having dismissed the claim upon which federal jurisdiction was based, this Court is
inclined to remand Plaintiffs’ remaining negligence claim against BR Healthcare Solutions, LLC
to the District Court, 218th Judicial District, Karnes County, Texas if the Court has only
supplemental jurisdiction over this claim. See 28 U.S.C. § 1367 (stating a district court may
decline to exercise supplemental jurisdiction over a remaining claim once it has “dismissed all
claims over which it has original jurisdiction”); Warren v. Joynder, 996 F. Supp. 581, 585 (S.D.

3

Miss. 1997) (declining to exercise supplemental jurisdiction over a remaining medical
malpractice claim once the FTCA claims were dismissed for lack of subject-matter jurisdiction);
Bush v. Jones, No. 1:01CV275-D-D, 2001 WL 1530349, at *3 (N.D. Miss. Nov. 2, 2001) (citing
Dillon v. State of Miss. Military Dept., 23 F.3d 915, 918 n.6 (5th Cir. 1994)) (“[O]ther courts in
analogous situations [have] remanded ‘the remaining case’ against other defendants who were
not federal employees after the United States’ motion to dismiss had been granted.”). Based on
the information currently available, this Court is unable to discern whether diversity jurisdiction
exists over Plaintiffs’ negligence claim against BR Healthcare Solutions, LLC, which would
preclude such remand. Although it appears from the face of the petition that the amount in
controversy will exceed the $75,000 threshold for diversity jurisdiction, the citizen status of
defendant BR Healthcare Solutions, LLC depends on the citizenship status of all its members,
and such information has not been made available to this Court. See Harvey v. Grey Wolf
Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008) (joining all other circuits to address the issue
in holding that “the citizenship of a LLC is determined by the citizenship of all its members.”).
To resolve this jurisdictional issue, the remaining parties are hereby instructed to advise this
Court concerning the proper disposition of these claims.
Accordingly, Defendant United States’ Motion to Dismiss for Lack of Subject-Matter
Jurisdiction (docket no. 3) is GRANTED.

Plaintiffs’ claims against the United States are

DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction.
Plaintiffs and Defendant BR Healthcare Solutions LLC shall advise the Court in writing
within fourteen (14) days whether the remaining claim against BR Healthcare Solutions, LLC

4

can be remanded under 28 U.S.C. § 1367, or, if diversity jurisdiction exists, whether the
remaining parties consent to remand or wish to remain in this Court.
It is so ORDERED.
SIGNED this 20th day of September, 2017.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

5