Opinion
Civil No. DR-21-CV-0016-AM
2021-10-04
Brenda SANTOS, Individually and as Next Friend of N.S., a Minor Child, Plaintiff, v. UNITED STATES of America, Defendant.
Angel Hector Gonzalez, Gonzalez and Associates, P.C., Eagle Pass, TX, for Plaintiff. Kristin K. Bloodworth, U.S. Attorney's Office, San Antonio, TX, for Defendant.
Angel Hector Gonzalez, Gonzalez and Associates, P.C., Eagle Pass, TX, for Plaintiff.
Kristin K. Bloodworth, U.S. Attorney's Office, San Antonio, TX, for Defendant.
ORDER
ALIA MOSES, United States District Judge
Before the Court is the Government's Motion to Dismiss Plaintiff's Complaint. (ECF No. 4.) Upon review, the motion is GRANTED.
I. BACKGROUND
Around May 14, 2019, the Plaintiff was driving on Loop 480 with N.S., her minor child, as a passenger. (ECF No. 1 at 2.) As she merged onto FM 1021, a vehicle—driven by Henry J. Nolan ("Nolan"), a Government employee —crashed into the rear of the Plaintiff's car. (Id. ) According to the Plaintiff, the crash injured her spine, neck, lower back, and shoulders, damaged her car, and injured N.S. (Id. at 4.)
The Plaintiff alleges Nolan was a United States Marshall. (ECF No. 1 at 3). The Government asserts Nolan was a Border Patrol Agent. (ECF No. 4 at 1, n. 2). The crash report, attached to the Plaintiff's claim and the Government's motion, supports the Government's position. (ECF No. 4-1 at 16).
Almost two years later, on April 9, 2021, the Plaintiff submitted a Standard Form 95 claim for the crash to the United States Marshall Service. (ECF No. 4-1 at 2-23.) On May 12, 2021, 33 days after filing her claim, the Plaintiff sued the Government under the Federal Tort Claims Act ("FTCA"). (ECF No. 1 at 3-4.) The Plaintiff alleges that, at the time of the crash, Nolan was acting in the course and scope of his duties as a Government employee and that he caused the crash by negligently and wrongfully operating his vehicle. (Id. at 2-3.) She claims Nolan's negligence, wrongful acts, and omissions caused her and her daughter's damages. (Id. )
After being served, the Government filed the instant motion arguing that the case should be dismissed under Rule 12(b)(1) because the Plaintiff failed to exhaust her administrative remedies prior to filing suit. (ECF No. 4 at 1.) Specifically, the Government asserts that the FTCA requires the Plaintiff to file a claim with the appropriate federal agency—here United States Customs and Border Protection ("USCBP")—and either receive a final decision on the claim or wait six months after submitting her claim before filing suit. (Id. at 2.) The Plaintiff did submit a complaint before filing suit. (ECF No. 4-1 at 2-23.) But she did not send the claim to the USCBP and she did not wait six months before filing suit. (see ECF No. 4 at 2.) Because she did not properly exhaust, the Government maintains the Court lacks subject matter jurisdiction and should dismiss the suit. (ECF No. 4 at 2.) The Plaintiff did not respond to the motion.
Under the Local Rules, the Plaintiff's failure to respond indicates the motion is unopposed. See L.R. CV-7(e)(1)-(2). It is improper, however, to grant a motion to dismiss solely because it is unopposed—the district court must consider the parties’ arguments. Webb v. Morella , 457 Fed.Appx. 448, 452 (5th Cir. 2012).
II. APPLICABLE LAW
A motion to dismiss under Rule 12(b)(1) challenges a federal court's subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). A court must dismiss a complaint if it lacks subject-matter jurisdiction. Willoughby v. U.S. , 730 F.3d 476, 479 (5th Cir. 2013) (holding that whether sovereign immunity has been waived under the FTCA, and thus whether subject matter jurisdiction exists, may be resolved on a Rule 12(b)(1) motion to dismiss). A plaintiff always has the burden to show jurisdiction. Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted). If a claim lacks subject matter jurisdiction, a court can dismiss it based on: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Williamson v. Tucker , 645 F.2d 404, 413 (5th Cir. 1981).
III. ANALYSIS
Absent a waiver of immunity, the Government is immune from suit. Gregory v. Mitchell , 634 F.2d 199, 203 (5th Cir. 1981). The FTCA provides one such waiver, but it requires a plaintiff to first present a claim to "the appropriate Federal agency" and let either the agency deny her claim or let six months pass without a denial before the plaintiff can file suit. 28 U.S.C. § 2675(a) ; Id. Adhering to this requirement is a jurisdictional prerequisite to filing suit. Trinity Marine Prods., Inc. v. U.S. , 812 F.3d 481, 487 (5th Cir. 2016). Failure to comply robs the court of subject matter jurisdiction. Reynolds v. U.S. , 748 F.2d 291, 292 (5th Cir. 1984).
Here, the Plaintiff presented a claim, albeit to the wrong federal agency, on April 9, 2021. (ECF No. 4-1 at 2-23.) It is undisputed that she did not receive a final decision on that claim, and she did not wait six months after submitting her claim before filing suit. She thus did not properly exhaust her administrative remedies, her suit was premature, and the Court lacks subject matter jurisdiction to hear it. Further, even though the six-month waiting period will soon expire, the Plaintiff cannot cure the defect now. McNeil v. U.S. , 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (requiring complete exhaustion of remedies prior to filing suit). The suit must be dismissed.
IV. CONCLUSION
Accordingly, the Government's Motion to Dismiss Plaintiff's Complaint, (ECF No. 4.), is GRANTED. The Plaintiff's claim is DISMISSED WITHOUT PREJUDICE.