United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION TO
BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE.
Ashley Lenius brings this complaint under the Federal Tort
Claims Act ("FTCA"), alleging that she is entitled
to money damages as compensation for the negligence of U.S.
Marine Corps employee Thomas Bell. See Compl, Dkt.
No. 1-1 at ¶¶ 3.1, 4. Currently before the court is
Defendant United States' motion to dismiss for lack of
subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(b)(1). Dkt. No. 5 at 1-2. The United States argues that
Plaintiffs claim is barred because it was not properly
presented to the appropriate agency as required by 28 U.S.C.
§ 2675(a) and that equitable relief is not appropriate.
See Dkt. No. 14 at 2, 5. Having reviewed the motion,
the opposition thereto, the record of this case, and the
relevant legal authorities, the Court grants the motion to
December 17, 2015, Staff Sergeant Thomas Bell, an on-duty
recruiter for the U.S. Marine Corps, was driving on a city
street in Kent, Washington. Dkt. No. 13 at 2, 17. Plaintiff
alleges that Bell sideswiped her vehicle as he attempted to
change into a lane in which she was established. Compl, Dkt.
No. 1-1 at ¶ 2.1. Police were called to the scene and
wrote a police report charging Bell with improper lane usage.
Dkt. 13, Ex. 2. at 17. Plaintiff claims that she was injured
in the accident and that her car was totaled. Id. at
after the collision, Plaintiff, through counsel, sent a cover
letter attaching a Standard Form 95 ["Claim for Damage,
Injury, or Death"] ("SF 95") and police report
by First Class Mail to the address of the Armed Forces Career
Center where Bell was employed. Dkt. No. 13 at 2-3. The
United States asserts that this was the improper location for
the SF 95 to have been mailed and that it should have gone to
the Marine Corps or the Department of the Navy. Dkt. No. 14
alleges that no federal agency ever responded, and the U.S.
Postal Service never returned her claim. Because 18 C.F.R.
§ 14.2(a) requires that a claim served on an incorrect
federal agency should be transferred to the appropriate
agency, the Head of the Tort Claims Branch for the Department
of the Navy, Randall Russell, caused a search to be made of
the records maintained in the Office of the Judge Advocate
General of the Navy and the Tort Claims Unit in Norfolk,
Virginia, the locations to where the SF 95 should have been
mailed. Russell submitted a declaration that he failed to
find Plaintiffs FTC A claim at those locations. Dkt. No. 6 at
filed the instant action nearly three years after allegedly
mailing her claim. Compl., Dkt. No. 1-1. Plaintiff claims
that she in entitled to relief under the FTCA, alleging that
Bell was negligent when he caused the accident. She seeks
damages for personal injuries, medical special damages, pain
and suffering, and other damages, past, present, and future,
in amounts to be proven at the time of trial. Compl., Dkt.
No. 1-1 at ¶ 3.1.
United States now moves to dismiss this case pursuant to Rule
12(b)(1), arguing that Plaintiff never presented an
administrative claim to the appropriate agency and, thus,
failed to exhaust her administrative remedies before suit.
Dkt. No. 5.
Rule 12(b)(1) motion to dismiss standard
Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction. Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1040 (9th Cir. 2004). In this 12(b)(1), The
United States I challenges the contention that the
appropriate agency was presented with Plaintiffs claim.
resolving such a challenge, the Court may review evidence
beyond the complaint. Savage v. Glendale Union High
Sck, 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003). The court
"need not presume the truthfulness of plaintiff s
allegations." Id. at 1039 n.2. The plaintiff
bears the burden of proving by a "preponderance of the
evidence" that the requirements for subject matter
jurisdiction have been met and must support her
jurisdictional allegations with "competent proof."
Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir.