ELISA PRICE, individually and as limited guardian ad litem for her son C.P., Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on Defendant United States of America's ("Government") motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) (Dkt. 6). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.
I. PROCEDURAL & FACTUAL BACKGROUND
On December 28, 2011, Plaintiff Elisa Price ("Price"), individually and as limited guardian ad litem for her son C.P., filed a complaint in Pierce County Superior Court against Chief Leschi Schools and Richard Keller ("Keller"), individually and on behalf of the marital community composed thereof. Dkt. 1-2. The complaint alleges that on May 18, 2010, C.P. was struck by a bus while crossing at a controlled intersection with the crossing signal in his favor. Id. at 3. Plaintiff maintains the bus was driven by Keller. Dkt. 8 at 1.
On August 15, 2013, Price filed an administrative claim with the Bureau of Indian Affairs ("Bureau") regarding the alleged May 18, 2010 incident, which is the subject of her complaint. Dkt. 7 at 4-8.
On October 8, 2013, the Government removed the action to this Court pursuant to the Federal Tort Claims Act ("FTCA"), substituting the United States as the sole defendant upon certification that Keller was acting within the scope of his employment during the alleged accident. See Dkts. 1 and 1-3.
On October 16, 2013, the Government filed the instant motion to dismiss Price's complaint without prejudice on the basis that she failed to exhaust her administrative claims as required by 28 U.S.C. § 2675(a). Dkt. 6 at 2-3. On November 11, 2013, Price responded. Dkt. 8. On November 15, 2013, the Government replied. Dkt. 10.
A. Legal Standards
Pursuant to 28 U.S.C. § 2675(a), a plaintiff may not pursue a tort claim in federal court against the United States without first presenting an administrative claim to the appropriate federal agency and allowing the agency to consider her claim for six months before she can file a lawsuit in federal court. See 28 U.S.C. § 2675(a).
The administrative exhaustion requirement at Section 2675(a) is jurisdictional. See, e.g., Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000), cert. denied, 531 U.S. 1037 (2000); see also Vacek v. U.S. Postal Service, et al., 447 F.3d 1248, 1250-51 (9th Cir. 2006), cert. denied, 550 U.S. 906 (2007); Cadwalder v. United States, 45 F.3d 297, 300-01 (9th Cir. 1995); Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985). Because the administrative exhaustion requirement is jurisdictional in nature, the FTCA's exhaustion requirements must be strictly construed. See, e.g., Vacek, 447 F.3d at 1250-51. Subject matter jurisdiction cannot be waived. See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
B. Application of Standards
The Government argues that because Price did not fulfill the administrative exhaustion requirement prior to filing suit in federal court this Court lacks jurisdiction, as she must allow the Bureau an additional four months to process her complaint before filing suit in federal court. Dkt. 10.
Price argues this lawsuit should not be dismissed apparently because she filed an administrative action with the Bureau; the Government failed to submit the complaint and pleadings to the United States Attorney's Office as required by 28 U.S.C. § 2679(c) during the pendency of the state court proceedings; and the Government chose to invoke federal court jurisdiction before the Bureau's time to respond to her complaint had elapsed. See Dkt. 8 at 2-3. Alternatively, Price argues that this action should be stayed until February 19, 2013 to ...