Klees v. Chansky et al

Filing 24

ORDER signed by Judge Benjamin H. Settle granting 8 Motion to Dismiss; granting 11 Motion for Extension of Time. The following motions are terminated and the case will be closed: 19 MOTION to Stay re 8 MOTION to Dismiss < i> filed by Howard Alan Chansky, Laura E. Stoll, Paul H. Kim, 13 MOTION to Amend 1 Notice of Removal,, filed by Sylvia Enrica Klees, 12 MOTION to Dismiss filed by Sylvia Enrica Klees, 22 MOTION to Amend 7 Verification of State Court Records, filed by Sylvia Enrica Klees, 23 MOTION to Dismiss filed by Sylvia Enrica Klees, 18 MOTION to Compel filed by Sylvia Enrica Klees, 15 MOTION to Compel filed by Sylvia Enrica Klees. (TG; cc mailed to plaintiff)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 SYLVIA ENRICA KLEES, CASE NO. C17-5480 BHS Plaintiff, 9 v. 10 UNITED STATES OF AMERICA, 11 ORDER GRANTING PLAINTIFF’S MOTION FOR EXTENSION OF TIME AND DEFENDANT’S MOTION TO DISMISS Defendant. 12 13 This matter comes before the Court on Defendant United States of America’s 14 motion to dismiss (Dkt. 8) and Plaintiff Sylvia Enrica Klees’ (“Klees”) motion for 15 extension of time (Dkt. 11). The Court has considered the pleadings filed in support of 16 and in opposition to the motions and the remainder of the file and hereby grants the 17 motions for the reasons stated herein. 18 19 I. PROCEDURAL HISTORY On May 18, 2017, Klees filed a complaint against Howard Alan Chansky, Paul H. 20 Kim, and Laura E. Stoll (“Defendants”) alleging numerous torts stemming from a surgery 21 at a veteran’s hospital. Dkt. 1-1. 22 On June 21, 2017, Defendants removed the matter to this Court. Dkt. 1. ORDER - 1 1 On June 28, 2017, the Government was substituted for Defendants, Dkt. 6, and the 2 Government filed a motion to dismiss, Dkt. 8. On July 17, 2017, Klees filed a motion for 3 extension of time to respond. 1 Dkt. 11. On July 21, 2017, the Government replied. Dkt. 4 16. On July 31, 2017, Klees responded to the Government’s motion to dismiss. Dkt. 21. 5 II. 6 DISCUSSION A tort claimant may not commence proceedings in court against the United States 7 without first filing her claim with an appropriate federal agency and either receiving a 8 conclusive denial of the claim from the agency or waiting for six months to elapse 9 without a final disposition of the claim being made. Jerves v. United States, 966 F.2d 10 517, 519 (9th Cir. 1992). The Ninth Circuit has “repeatedly held that this ‘claim 11 requirement of section 2675 is jurisdictional in nature and may not be waived.’” Id. 12 (quoting Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985)). 13 In this case, the Government argues that Klees failed to exhaust her administrative 14 remedies by filing a tort claim with the Department of Veteran Affairs. Dkt. 8 at 2. 15 Klees alleges that she filed a tort claim on December 10, 2013. Dkt. 21 at 2. Klees, 16 however, fails to submit any evidence of this claim and the Government has submitted 17 evidence showing that the only claim filed by Klees was received on May 24, 2017. Dkt. 18 9. Based on this evidence, the Court concludes that Klees has failed to exhaust her 19 administrative remedies and the Court is without jurisdiction to hear her claims. 20 21 22 1 The Court grants the motion because the Government is not prejudiced by the delay. ORDER - 2 1 2 III. ORDER Therefore, it is hereby ORDERED that Klees’ motion for extension of time (Dkt. 3 11) and the Government’s motion to dismiss (Dkt. 8) are GRANTED. The Clerk shall 4 remove all pending motions from the Court’s calendar, enter JUDGMENT for the 5 Government, and close this case. 6 Dated this 8th day of August, 2017. A 7 8 BENJAMIN H. SETTLE United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 3

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