ORDER AND REASONS

Jay Zainey, District Judge

Before the Court is a Motion to Dismiss and for Summary Judgment filed by the United States of America on behalf of defendants Michael Brown, Department of the Army and National Guard (Rec. Doc. 28). Plaintiffs oppose the motion. The motion, originally set for hearing on July 16, 2003, is now before the Court on the briefs without oral argument. For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

On August 5, 2000, plaintiff Joseph Miciotto (hereinafter "Miciotto") was employed by National Railroad Passenger Corporation (hereinafter "Amtrak"). He was the engineer and the sole operator and occupant of a locomotive owned by Amtrak that was pulling a passenger train from Louisiana to Mississippi. As he approached Hammond, Louisiana, on a track owned by defendant Canadian National/Illinois Central Railroad Company (hereinafter "CN/IC"), Miciotto saw a tractor-trailer on the track at the Old Covington Road Crossing. The tractor-trailer, owned by defendant National Guard and driven by defendant Michael Brown (hereinafter "Brown"), had stalled on the track prior to the time it became visible to Miciotto. The tractor-trailer was being pushed off of the track by Brown and his passenger, but before they could move it clear of the track, the train entered the crossing and struck the trailer just behind the rear axle, spinning the tractor-trailer around. Both Brown and his passenger escaped injury, and no passenger or other crew member aboard the Amtrak train was injured. Miciotto, however, alleges that the accident caused him to suffer severe and permanently disabling injuries.

Miciotto and his wife originally filed suit against the United States defendants under the Federal Ton Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-2680 and subsequently supplemented and amended their complaint to include Amtrak and CN/IC under the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. ("FELA").

UNITED STATES MOTION TO DISMISS

A. Motion to Dismiss by Defendant Michael Brown, Defendant Department of the Army and Defendant Louisiana National Guard as Party Defendants

This action was filed pursuant to the FTCA. "The United States is immune from suit except as it waives its sovereign immunity." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994): Wilkerson v. U.S., 67 F.3d 112, 118 (5th Cir. 1996). The FTCA waives the federal government's immunity under limited circumstances and waiver of immunity under the FTCA is to be strictly construed. Owen v. United States. 935 F.2d 734 (5th Cir. 1991), writ denied. 502 U.S. 1031 (1992). The FTCA grants jurisdiction over claims for which the United States has waived its sovereign immunity if the claims are:

[I]against the United States, [2] for money damages . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C, § 1346(b).

Strictly construed, the FTCA does not permit suits against agencies of the federal government. 28 U.S.C. § 2674. "To sue successfully under the FTCA, a plaintiff must name the United States as the sole defendant."McGuire v. Turnbo. 137 F.3d 321 (5th Cir. 1998) (citing Atorie v. F.A.A., 942 F.2d 954 (5th Cir. 1991)). Miciotto has improperly sued the Department of the Army and the Louisiana National Guard, agencies of the United States. To the extent that these agencies are sued rather than the United States or the federal employees acting within the scope of their duties, subject matter jurisdiction is lacking.FDIC, 510 U.S. at 477. Additionally, Miciotto does not oppose their dismissal. Considering the foregoing, this Court finds that claims against the Department of Army and the Louisiana National Guard are dismissed.

Sgt. Michael Brown has also been named as a party defendant, He was the driver of the tractor-trailer at the time of the accident. The United States Attorney for the Eastern District of Louisiana has certified that Sgt. Brown was at all times pertinent hereto acting within the scope of his office or employment. Under 28 U.S.C. § 2679, Miciotto's exclusive remedy is against the United States for injury to property or person resulting from the operation of a motor vehicle by an employee of the Government while acting within the scope and duty of his employment. Additionally, Miciotto does not oppose Brown's dismissal. Therefore, the claims against Sgt Michael Brown are dismissed.

B. Motion to Dismiss Debra Miciotto's Claim

Plaintiff, Debra Miciotto, failed to pursue an administrative claim as required by 28 U.S.C. § 2675(a). The exhaustion of administrative remedies is a jurisdictional prerequisite to filing an action under the FTCA. Debra Miciotto has offered no proof that she exhausted her administrative remedies prior to filing this lawsuit under the FTCA. Therefore, this Court lacks subject matter jurisdiction to hear her claim. Gregory v. Mitchell. 634 F.2d 199, 203 (5th Cir. 1981). Additionally, Ms. Miciotto does not oppose this dismissal. The claims of Debra Miciotto against the United States are dismissed.

Accordingly, the motion to dismiss the Department of the Army, The Louisiana National Guard and Michael Brown is Granted. The United States is substituted as the proper party Defendant in place of the Department of the Army, the Louisiana National Guard, and Michael Brown. The motion to dismiss Debra Miciotto's claims against the United States is granted.

II. United States' Motion for Summary Judgment

In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998): Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998)). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. (citingCelotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L. Ed.2d 265 (1986)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's case. Id. (citingCelotex. 477 U.S. at 325, 106 S.Ct. at 2548). If the moving party fails to meet this initial burden, the motion must be denied regardless of the nonmoving party's response. Id.

The necessary elements for a negligence claim under Louisiana law are fault, causation, and damage. Friou v. Phillips Petroleum Co., 948 F.2d 972, 975 (5th Cir. 1992). To show fault, plaintiff must prove the existence of a legal duty and a breach of that legal duty.Id (quoting Seals v. Morris. 410 So.2d 715, 718 (La. 1982) (on rehearing)).

The Fifth Circuit has recognized that summary judgment is ordinarily inappropriate when a claim involves allegations of negligence.Matthews v. Ashland Chemical Inc., 703 F.2d 921, 925 (5th Cir. 1983) (citing 10 Wright, Miller, Kane, Federal Practice Procedure § 2729 (2d ed. 1983)). Claims that require the fact finder to determine the reasonableness of the acts and conduct of the parties under all the facts and circumstances of the case cannot ordinarily be disposed of by summary judgment. Id. (citing Gross v. Southern Railway Co., 414 F.2d 292, 296 (5th Cir. 1969)).

At issue here is whether or not Sgt. Brown was negligent and whether that negligence contributed to the collision of the train and the lowboy. The Court has carefully reviewed the depositions, affidavits and declarations of the plaintiff Miciotto, the truck driver Sgt. Brown and Brown's passenger, Pvt. Krumholt.

The Court acknowledges that the mere act of stalling on a track does not in and of itself establish negligence or victim fault. See Fisher v. Walters, 428 So.2d 431, 437 (La. 1983) (citing Louisiana Arkansas Railwas Company v. Fireman's Fund Insurance Company. 380 F.2d 541 (5th Cir. 1967)).

However, Sgt. Brown testified in his deposition that the light changed several times while he and Pvt. Krumholt were stalled on the tracks. He further stated that multiple vehicles went around them. See Plaintiff's Exhibit #4 p. 64. Pvt. Krumholt however testified that they were stalled for only two minutes before they began pushing the truck. Pvt. Krumholt makes no mention of any by-passing traffic. See Plaintiffs Exhibit #5 p. 70. Private Krumholt further testified in his deposition that he tried to push the truck while Sergeant Brown was still investigating the battery box. See Plaintiff's Exhibit #5 p. 68 Sergeant Brown testified that they only began pushing once the signals came on notifying them of an approaching train. See Plaintiff's Exhibit #4 p. 58.

It is obvious that there is a question as to the length of time the truck was stalled on the tracks before Sgt. Brown and Pvt. Krumholt began pushing the truck. Further, there is a question as to when Sgt. Brown and Pvt. Krumholt began pushing the truck. In determining negligence in this case, the Court must evaluate the reasonableness of Sgt. Brown's actions from the time his vehicle stalled until the time the train passed through the crossing. Because the facts involved in this time frame are still in dispute, the Court must deny summary judgment on the issue of Sgt. Brown's negligence.

Accordingly;

IT IS ORDERED that defendant United States' Motion to Dismiss and for Summary Judgment (Rec. Doc. 28) should be and is hereby GRANTED IN PART and DENIED IN PART. The United States is substituted as proper party defendant in place of the Department of the Army, The Louisiana National Guard and Michael Brown. The claims of Debra Miciotto against the United States are dismissed. The motion for summary judgment, as it relates to Sgt. Brown's negligence is DENIED.