United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION TO DISMISS AND ORDER TO SHOW
J. BRYAN United States District Judge.
matter comes before the Court on the United States'
Motion to Dismiss for Lack of Subject Matter Jurisdiction.
Dkt. 9. The Court has considered the motion and record, and
is fully advised.
FACTS AND PROCEDURAL HISTORY
January 18, 2017, Plaintiff filed this case in Lewis County,
Washington Superior Court, asserting negligence claims
against Providence Health Care Foundation d/b/a Providence
Centralia Hospital and Lewis County Community Health Services
d/b/a Valley View Health Center in connection with medical
care he received. Dkt. 1-1, at 2-4. He seeks damages
and costs. Id. Defendant Lewis County Community
Health Services d/b/a Valley View Health Center removed the
case to this Court. Dkt. 1.
accord with 28 U.S.C. § 2679(d)(1), the United
States' Motion to Substitute the United States in place
of Lewis County Community Health Services d/b/a Valley View
Health Center was granted and the caption was ordered
amended. Dkt. 7.
March 14, 2017, the United States filed a Motion to Dismiss
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Dkt. 9. It
argues that the case against the United States should be
dismissed pursuant to Rule 12(b)(1) because Plaintiff failed
to file an administrative claim as required under the Federal
Torts Claims Act (“FTCA”), 28 U.S.C. §§
2675 (a), and so this Court does not have jurisdiction to
consider the claims. Id. The motion to dismiss was
noted for consideration on April 7, 2017. Id.
Plaintiff did not timely respond.
STANDARD ON MOTION TO DISMISS
to Fed.R.Civ.P. 12(b), a party may assert the following
defenses in a motion to dismiss: “(1) lack of subject
matter jurisdiction; (2) lack of personal jurisdiction; (3)
improper venue; (4) insufficient process; (5) insufficient
service of process; (6) failure to state a claim upon which
relief can be granted; and (7) failure to join a party under
Rule 19.” Under Fed.R.Civ.P. 12 (b)(1), a complaint
must be dismissed if, considering the factual allegations in
the light most favorable to the plaintiff, the action: (1)
does not arise under the Constitution, laws, or treaties of
the United States, or does not fall within one of the other
enumerated categories of Article III, Section 2, of the
Constitution; (2) is not a case or controversy within the
meaning of the Constitution; or (3) is not one described by
any jurisdictional statute. Baker v. Carr, 369 U.S.
186, 198 (1962); D.G. Rung Indus., Inc. v.
Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash. 1986);
see 28 U.S.C. §§ 1331 (federal question
jurisdiction) and 1346 (United States as a defendant). When
considering a motion to dismiss pursuant to Rule 12(b)(1),
the court is not restricted to the face of the pleadings, but
may review any evidence to resolve factual disputes
concerning the existence of jurisdiction. McCarthy v.
United States, 850 F.2d 558, 560 (9th Cir.
1988), cert. denied, 489 U.S. 1052 (1989);
Biotics Research Corp. v. Heckler, 710 F.2d 1375,
1379 (9th Cir. 1983). A federal court is presumed
to lack subject matter jurisdiction until plaintiff
establishes otherwise. Kokkonen v. Guardian Life Ins. Co.
of America, 511 U.S. 375 (1994); Stock West, Inc. v.
Confederated Tribes, 873 F.2d 1221, 1225 (9th
Cir. 1989). Therefore, plaintiff bears the burden of proving
the existence of subject matter jurisdiction. Stock
West, 873 F.2d at 1225; Thornhill Publishing Co.,
Inc. v. Gen'l Tel & Elect. Corp., 594 F.2d 730,
733 (9thCir. 1979).
FAILURE TO FILE AN ADMINISTRATIVE CLAIM
United States, as sovereign, is immune from suit unless it
consents to be sued. See United States v. Mitchell,
445 U.S. 535, 538 (1980); Cato v. United States, 70
F.3d 1103, 1107 (9th Cir. 1995). If a claim does not fall
squarely within the strict terms of a waiver of sovereign
immunity, a district court is without subject matter
jurisdiction. See, e.g., Mundy v. United
States, 983 F.2d 950, 952 (9th Cir. 1993).
FTCA is the exclusive remedy for state law torts committed by
federal employees within the scope of their employment. 28
U.S.C. § 2679(b)(1). The FTCA is a limited waiver of
sovereign immunity, rendering the United States liable for
certain torts of federal employees. See 28 U.S.C.
§ 1346(b). Pursuant to 28 U.S.C. § 2675(a),
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
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. . .
administrative claim requirements of Section 2675(a) are
jurisdictional in nature, and thus must be strictly adhered
to.” Jerves v. ...