Jaswal, et al v. United States of America

Filing 20

ORDER granting 9 Defendant's Motion to Dismiss Plaintiffs without prejudice by Judge Ricardo S Martinez.(MD, mailed copy of order to pltfs)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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YASHPAL JASWAL and SUKDEV JASWAL,
wife and husband,

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Plaintiffs,
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vs.

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NO. C11-01888 RSM
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS PLAINTIFF
SUKDEV JASWAL

UNITED STATES of AMERICA,

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Defendant.

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The Court has considered Defendant’s Motion to Dismiss Party (Dkt. #9), Plaintiff’s
Response thereto, the Reply, and the remainder of the record. The Court finds as follows:

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Yashpal and Sukdev Jaswal originally filed a medical malpractice action on July 29,

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2010 in King County Superior Court. Defendants removed the case to federal court because

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one of the defendants, Ruth J. Michaelis, M.D., was an employee of the Community Health

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Center of King County d/b/a Healthpoint, a deemed federal health care facility pursuant to the

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Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. § 233(g)-(n). The
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ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS PLAINTIFF – 1 of 4
(C11-01888 RSM)

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United States was substituted as the defendant and, on November 9, 2010, the parties entered

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into a court-approved stipulation dismissing the case without prejudice for failure to file an

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administrative tort claim.

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On January 10, 2011, Yashpal Jaswal filed an administrative tort claim with the

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United States Department of Health and Human Servies (“HHS”) for personal injuries

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resulting from the alleged failure to timely diagnose her with ovarian cancer. On that form,

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Ms. Jaswal identified “Sukdev Jaswal, Husband of Claimant” as a person involved in or

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witness to the incident. Sukdev Jaswal did not file an administrative tort claim with HHS.

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On May 19, 2011, the Department of Health and Human Services made a final

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determination on the tort claim. On November 9, 2011, both Yashpal and Sukdev Jaswal

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filed their complaint in this case stating causes of action for medical negligence and loss of a

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chance for a better outcome. The Jaswals also asked for relief for loss of consortium. Mrs.
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Jaswal has since passed away.
The Defendant moves to dismiss Sukdev Jaswal for failing to comply with the

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administrative exhaustion requirements of the Federal Tort Claims Act (“FTCA”), as set forth
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at 28 U.S.C. § 2675(a). The FTCA provides, “An action shall not be instituted upon a claim

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against the United States for money damages for injury or loss of property or personal injury

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or death caused by the negligent or wrongful act or omission of any employee of the

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Government while acting within the scope of his office or employment, unless the claimant

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shall have first presented the claim to the appropriate Federal agency and his claim shall have

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ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS PLAINTIFF – 2 of 4
(C11-01888 RSM)

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been finally denied by the agency in writing and sent by certified or registered mail.” 28

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U.S.C.A. § 2675(a). When no administrative claim has been filed with the appropriate

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administrative agency, a district court is without jurisdiction to hear the case and dismissal for

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lack of subject matter jurisdiction is mandated. Vacek v. U.S. Postal Serv., 447 F.3d 1248,

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1250 (9th Cir. 2006). The presentation of an administrative claim by a claimant does not
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relieve the spouse of his or her obligation also to exhaust administrative remedies. Johnson v.

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United States, 704 F.2d 1431, 1442 (9th Cir. 1983); see also Dugan v. United States, 2008 SL

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65504 at *1-2 (W.D. Wash. Jan. 4, 2008).

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Here, Mr. Jaswal did not file an administrative tort claim against the United States.
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He cannot pursue a tort claim in federal district court against the United States without first

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presenting an administrative claim to the appropriate federal agency and exhausting his

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administrative remedies. See Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (“The

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requirement of an administrative claim is jurisdictional.”); Johnson, 704 F.3d at 1442

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(upholding dismissal of spouse’s loss of consortium claim because spouse did not file

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administrative claim and claimant’s form did not identify the spouse as claimant or contain
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spouse’s signature) .
THEREFORE IT IS ORDERED that Defendant’s Motion to Dismiss Plaintiff’s
Complaint is GRANTED. Mr. Jaswal’s claims are hereby dismissed without prejudice to

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bringing a timely and proper administrative claim for wrongful death. See 28 U.S.C. §
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2401(b) (providing that a tort claim against the United States must be presented to the

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appropriate federal agency within two years after such claim accrues); Grant v. Fisher

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ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS PLAINTIFF – 3 of 4
(C11-01888 RSM)

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Flouring Mills Co., 181 Wash. 576, 44 P.2d 193 (1935) (wrongful death actions accrue “at the

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time of death”).

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Dated this 9th day of August 2012.

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS PLAINTIFF – 4 of 4
(C11-01888 RSM)