United States District Court, M.D. Louisiana
RULING AND ORDER
the Court is the Motion to Dismiss (Doc. 8)
filed by the United States. Plaintiff, Paxton Zeringue, did
not file a response. For the reasons stated herein, the
Motion to Dismiss (Doc. 8) is
alleges that on July 29, 2019 he was driving a 2013 Toyota
Corolla, traveling northbound on the 1-10 East Access Road in
East Baton Rouge Parish, Louisiana. (Doc. 1-3 at p. 23).
While Plaintiff was waiting to turn right onto Mall of
Louisiana Boulevard, his vehicle was struck from behind by a
2017 Nissan Altima driven by Richard Morris, who allegedly
failed to apply his brakes. (Id.)
brought a negligence action against Morris and against the
Hertz Corporation ("Hertz"). Hertz had rented the
vehicle to Morris and had allegedly issued a liability
insurance policy. (Doc. 1-3 at p. 25). On September 27, 2018
the Court granted the United States' unopposed motion to
substitute itself in place of Morris under the Federal Tort
Claims Act, which directs the substitution of the United
States as a defendant in place of a federal employee upon
certification that the employee was acting within scope of
federal employment. (Doc. 7). See also 28 U.S.C.
§ 2679(d)(1). The United States Attorney certified in
the motion that Morris was acting within the scope of his
employment at the time of the incident based on a review of
the circumstances of the accident, the pleadings, and a
written statement from Morris' supervisor. (Doc. 1-2 at
p. 1). The United States now seeks to dismiss Plaintiffs
Federal Rule of Civil Procedure 12(b)(1), a claim is"
'properly dismissed for lack of subject-matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate' the claim."
In re FEMA Trailer Formaldehyde Prods. Liab. Litig.,
668 F.3d 281, 286 (5th Cir. 2012) (quoting Home Builders
Ass'n v. City of Madison, 143 F.3d 1006, 1010 (5th
Cir. 1998)). In order to "prevent[ ] a court without
jurisdiction from prematurely dismissing a case with
prejudice," a court should consider a Rule 12(b)(1)
motion for lack of subject-matter jurisdiction before
addressing any motions that concern the merits of a case.
Id. at 286-87 (citing Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001)).
motion to dismiss under Rule 12(b)(1) is analyzed under the
same standard as a motion to dismiss under Rule 12(b)(6).
Benton v. United States, 960 F.2d 19, 21 (5th Cir.
1992). That standard seeks to determine whether "a
complaint... contain[s] sufficient factual matter, accepted
as true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Ail. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "[F]acial plausibility"
exists "when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Id. at 678 (citing Twombly, 550 U.S. at
556). Hence, the complaint need not set out "detailed
factual allegations," but something "more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action" is required.
Twombly, 550 U.S. at 555. "Factual allegations
must be enough to raise a right to relief above the
speculative level." Id.
United States argues that the Court lacks subject matter
jurisdiction over this action because Plaintiff did not file
an administrative claim prior to filing suit. (Doc. 8-1 at p.
2). The Federal Tort Claims Act (FTCA) is the exclusive
remedy for a negligence action against a federal employee
acting within the scope of his employment at the time of the
alleged act. 28 U.S.C. §2679(b)(1). The FTCA requires a
litigant to file an administrative claim with the applicable
federal agency before a federal court may assert jurisdiction
over the claim. 28 U.S.C. §2675(a). There is no
indication in Plaintiffs complaint that Plaintiff filed an
administrative claim. Accordingly, Plaintiffs action must be
Court notes, however, that the FTCA also provides that when
the United States is substituted as a party defendant and the
claim is dismissed for failure to file an administrative
claim, the claim will be timely presented if (1) the claim
would have been timely had it been filed on
the date the underlying civil action was commenced, and (2)
the claim is presented to the appropriate federal agency
within 60 days after dismissal of the action. 28 U.S.C.
§ 2679(d)(5). Thus, Plaintiff may state a cause of
action if he meets these two statutory requirements and
refiles suit. Accordingly, the Court chooses to dismiss
Plaintiffs suit against the U.S. without prejudice to
Plaintiffs right to refile.
Court also finds sua sponte that the Hertz
Corporation must be dismissed from this action. As noted
above, Plaintiff joined the Hertz Corporation because it
owned the car Morris was renting at the time had issued a
liability insurance policy. (Doc. 1-3 at p. 25). However, the
FTCA does not permit an action against the rental company in
this instance. See Smith v. United States, 245 F.3d
790 (Table) (5th Cir. 2000) (prohibiting Plaintiff from
joining federal employee defendant's car insurance
company to an FTCA action). See also 28 U.S.C.
2679(b)(1) ("The remedy against the United States. .. is
exclusive of any other civil action or proceeding for money
IT IS ORDERED that the Motion to