Flynn v. Dennis et al

Filing 12

ORDER granting 6 Motion to Dismiss Defendants Ashburn and the United States; plaintiff's claims against Ashburn and the United States are DISMISSED without prejudice; the Court DECLINES to exercise jurisdiction over the remaining state law claims; this case is REMANDED to Pierce County Superior Court; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C17-5316RBL

VENUS FLYNN,
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Plaintiff,
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v.
JESSICA DENNIS, et al.,

ORDER GRANTING MOTION TO
DISMISS AND REMANDING
[Dkt. #6]

Defendants.

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THIS MATTER is before the Court on Defendant United States’ Motion to Dismiss for

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lack of jurisdiction. [Dkt. #6]. This is a tort claim arising from an automobile accident allegedly

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caused by Defendant Beatrice Ashburn. Ashburn is an FDIC employee. The United States claims

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that Ashburn was at all times acting within the scope of her official FDIC duties.

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Flynn filed a Notice of Administrative Claim with the FDIC in May, and it has not yet

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been reviewed under the Federal Tort Claims Act, 28 U.S.C. § 2675(a). The United States seeks

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dismissal because Flynn has not yet exhausted her administrative remedies and because it has not

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waived its sovereign immunity unless and until she does.

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Flynn argues that the U.S. Attorneys’ “certification” that Ashburn was acting within the
scope of her official capacity is insufficient to establish that “fact” for jurisdictional purposes,

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ORDER GRANTING MOTION TO DISMISS AND
REMANDING - 1

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and that there is no evidence from which this court can make that determination. Alternatively,

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she asks that the claims against Ashburn be dismissed without prejudice and her remaining

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claims (against Defendants Dennis and Ortiz) be remanded to state court.
The United States argues in reply that Flynn has conceded that she has not exhausted her

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administrative remedies and that she has not raised a legitimate question about the scope of

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Ashburn’s duties.
The Court agrees. There is no reason to doubt the certification, and in the absence of any

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evidence that Ashburn was acting outside the scope of her employment at the time of the

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accident, discovery into this topic is not warranted. Cf. Meridian Intern. Logistics, Inc., v. United

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States, 939 F.2d 740 (9th Cir. 1991) (plaintiff opposed dismissal with evidence challenging the

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“scope” determination). There is an administrative process now underway.
The Motion to Dismiss is GRANTED and Flynn’s claims against Ashburn and the

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United States are DISMISSED without prejudice.
Because this Motion is the only substantive matter that has been addressed by this Court,

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the Court DECLINES to exercise its supplemental jurisdiction over the remaining state law

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claims under 28 U.S.C. § 1367 and the remainder of the case is REMANDED to Pierce County

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Superior Court.

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IT IS SO ORDERED.

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Dated this 14th day of June, 2017.

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A

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Ronald B. Leighton
United States District Judge

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[DKT. #6] - 2