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Morales-Diaz v. United States

United States District Court, E.D. Louisiana

June 13, 2019

HEYDI MORALES-DIAZ
v.
UNITED STATES OF AMERICA

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is an unopposed motion to dismiss[1] filed by defendants the United States of America, the United States Postal Service (the “USPS”), Jack Callender, in his official capacity as the United States Postmaster General (“Callender”), and Elke Lowery (“Lowery”) (together, “defendants”).[2] Defendants move the Court to dismiss plaintiff Heydi Morales-Diaz's (“Morales”) claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. For the following reasons, the motion is granted.

         I.

         Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, “[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). When applying Rule 12(b)(1), a court may dismiss an action for lack of subject matter jurisdiction “on any one of three separate bases: (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.” Spotts v. United States, 613 F.3d 559, 565-66 (5th Cir. 2010).

         “When subject matter jurisdiction is challenged, the Court first considers whether the defendant has made a ‘facial' or a ‘factual' attack upon the complaint.” Magee v. Winn-Dixie Stores, Inc., No. 17-8063, 2018 WL 501525, at *2 (E.D. La. Jan. 22, 2018) (Vance, J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981)). “If a defendant makes a ‘factual attack' upon the court's subject matter jurisdiction over the lawsuit, the defendant submits affidavits, testimony, or other evidentiary materials.” Paterson, 644 F.2d at 523. In the case of a factual attack, the plaintiff is “required to submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction.'” Id. “In the case of a facial attack, the court ‘is required to look to the sufficiency of the allegations in the complaint because they are presumed to be true.'” Magee, 2018 WL 501525, at *2 (quoting Paterson, 644 F.2d at 523).

         Defendants have submitted evidence in support of their motion to dismiss. Specifically, defendants attached a declaration supporting their argument that the claims against the United State should be dismissed.[3] Therefore, the Court will consider defendants' motion to dismiss Morales's claims against the United States as a factual attack.

         II.

         Morales alleges that on November 20, 2017, she was operating her vehicle in Jefferson Parish, State of Louisiana, when she was suddenly struck by a 1992 Gumman LLV owned by the United States, the USPS, and/or Callender and operated by Lowery.[4] Specifically, Morales alleges that Lowery attempted to make a left-hand turn, struck Morales's vehicle, and caused Morales personal injuries, property damage, and other unspecified damages.[5]

         On or about November 11, 2018, Morales filed the present lawsuit in the 24th Judicial District Court for the Parish of Jefferson, alleging that the negligence of Lowery, the United States, the USPS, and/or Callender was the sole or a proximate cause of Morales's injuries.[6] Morales alleges that Lowery was acting in the scope of her employment with the USPS during the accident and, therefore, the United States, the USPS, and/or Callender are liable for Lowery's negligence.[7]

         The United States timely removed the above-captioned matter to this Court, invoking its jurisdiction pursuant to the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. § 2679(d)(2) and 28 U.S.C. § 1442(a).[8] Defendants now move to dismiss Morales's claims pursuant to Rule 12(b)(1), arguing that this Court lacks subject matter jurisdiction over Morales's claims as to all defendants because the United States must be the sole defendant and because she failed to exhaust her administrative remedies, both mandated by the FTCA.[9]

         III.

         “The FTCA creates a statutory cause of action against the United States for torts committed by federal officials within the scope of their employment.” Saunders v. Bush, 15 F.3d 64, 66 (5th Cir. 1994). “Section 2679 of the FTCA provides that a suit against the United States is the exclusive remedy for damages for injury or loss of property ‘resulting from the negligent or wrongful conduct of any employee of the Government while acting within the scope of his office or employment.'” McLaurin v. United States, 392 F.3d 774, 777 (5th Cir. 2004) (quoting 28 U.S.C. § 2679(b)(1)). “To sue successfully under the FTCA, a plaintiff must name the United States as the sole defendant.” McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998) (citing Atorie Air, Inc. v. Fed. Aviation Admin., 942 F.2d 954, 957 (5th Cir. 1991) (“All suits brought under the FTCA must be brought against the United States, ” and “[a]ll defendants other than the United States were properly dismissed for lack of subject matter jurisdiction.”))

         Moreover, “[u]nder the FTCA, no damages action may be instituted against the United States ‘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' or been left undecided for six months.” Hinojosa v. U.S. Bureau of Prisons, 506 Fed.Appx. 280, 282 (5th Cir. 2013) (quoting § 2675(a)).[10] “The requirement is jurisdictional and cannot be ...


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