United States District Court, W.D. Texas, San Antonio Division
NANCY LEAL AND JOE VALDEZ, INDIVIDUALLY AND AS ALL HEIRS TO THE ESTATE OF CRESCENCIA VALDEZ, DECEASED, Plaintiffs,
BR HEALTHCARE SOLUTIONS, LLC D/B/A KARNES CITY HEALTH AND REHABILITATION CENTER AND THE UNITED STATES OF AMERICA, Defendants . No.
RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
the Court is Defendant United States of America's Motion
to Dismiss for Lack of Subject Matter Jurisdiction pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Plaintiffs' Original Petition was filed on May 26, 2017
in the District Court, 218th Judicial District, Karnes
County, Texas, asserting causes of action for negligence
against defendants BR Healthcare Solutions, LLC and Rayford
Mitchell, M.D. (Plaintiffs' Original Petition at
¶¶ 54-59). The case was thereafter removed to this
Court, and Defendant United States of America was substituted
in place of prior defendant Rayford Mitchell, M.D. after it
was determined that Mitchell was an employee of the
Government “acting within the scope of his office or
employment at the time of the incident out of which the claim
arose.” See 28 U.S.C § 2679(d)(2)
(“Such action or proceeding shall be deemed to be an
action or proceeding brought against the United States under
the provisions of this title and all references thereto, and
the United States shall be substituted as the party
defendant.”). Defendant United States' Rule
12(b)(1) Motion contends that this Court lacks subject-matter
jurisdiction over claims asserted against the United States
in the instant action because Plaintiffs have not previously
filed an administrative claim with the appropriate federal
agency, and thus have failed to comply with the statutory
requirements of the Federal Tort Claims Act (FTCA), 28 U.S.C
FTCA provides the exclusive remedy for parties seeking money
damages against the United States “for injury or loss
of property, or personal injury or death arising or resulting
from the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment.” 28 U.S.C. § 2679(b)(1).
“[E]xact compliance” with the statutory
requirements of the FTCA is a condition precedent to
maintaining suit thereunder. Childers v. United
States, 442 F.2d 1299, 1303 (5th Cir. 1971). The FTCA
requires that, prior to instituting a legal action against
the United States in federal court, the claimant must first
present their claim to the appropriate federal agency and the
claim must be finally denied by the agency in writing. 28
U.S.C. § 2675(a) (“An action shall not be
instituted upon a [tort] claim 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 and sent by certified
or registered mail.”). Accordingly, until a claimant
has complied with the statutory requirements of §
2675(a), federal courts do not have subject-matter
jurisdiction over an action brought against the United States
under the FTCA. Johnson v. United States, 502 F.
App'x 412, 420 (5th Cir. 2012) (quoting McAfee v. 5th
Cir. Judges, 884 F.2d 221, 222-23 (5th Cir. 1989));
Price v. United States, 69 F.3d 46, 54 (5th Cir.
1995). If a court lacks subject-matter jurisdiction over an
action, “the court must dismiss the action.”
factual allegations contained in Plaintiffs' Original
Petition do not indicate that Plaintiffs filed an
administrative claim with the United States Department of
Health and Human Services prior to filing their Original
Petition in state court. (See Plaintiffs'
Original Petition at ¶¶ 10-53). The United States
contends that they have not, and no response was filed in
opposition. Because Plaintiffs have failed to exhaust their
administrative remedies, they are barred from bringing suit
against the United States in federal court under the FTCA.
See 28 U.S.C. § 2675(a). As a result, this
Court lacks subject-matter jurisdiction over Plaintiffs'
claim against the United States in the instant action at this
time, and Plaintiffs' claim against the United States
must be dismissed. See Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.”); Price v. United States, 69 F.3d 46,
54 (5th Cir. 1995) (“The subject matter jurisdiction of
the court is conditioned on compliance with 28 U.S.C. §
2675(a)”); see also 28 U.S.C. §
2679(d)(5) (an action previously dismissed for failure to
present an administrative claim may be deemed to be timely
presented under § 2401(b) if it would have been timely
had it been filed on the date the underlying civil action was
commenced and the claim is presented to the appropriate
Federal agency within 60 days after dismissal of the civil
dismissed the claim upon which federal jurisdiction was
based, this Court is inclined to remand Plaintiffs'
remaining negligence claim against BR Healthcare Solutions,
LLC to the District Court, 218th Judicial District, Karnes
County, Texas if the Court has only supplemental jurisdiction
over this claim. See 28 U.S.C. § 1367 (stating
a district court may decline to exercise supplemental
jurisdiction over a remaining claim once it has
“dismissed all claims over which it has original
jurisdiction”); Warren v. Joynder, 996 F.Supp.
581, 585 (S.D.Miss. 1997) (declining to exercise supplemental
jurisdiction over a remaining medical malpractice claim once
the FTCA claims were dismissed for lack of subject-matter
jurisdiction); Bush v. Jones, No. 1:01CV275-D-D,
2001 WL 1530349, at *3 (N.D. Miss. Nov. 2, 2001) (citing
Dillon v. State of Miss. Military Dept., 23 F.3d
915, 918 n.6 (5th Cir. 1994)) (“[O]ther courts in
analogous situations [have] remanded ‘the remaining
case' against other defendants who were not federal
employees after the United States' motion to dismiss had
been granted.”). Based on the information currently
available, this Court is unable to discern whether diversity
jurisdiction exists over Plaintiffs' negligence claim
against BR Healthcare Solutions, LLC, which would preclude
such remand. Although it appears from the face of the
petition that the amount in controversy will exceed the $75,
000 threshold for diversity jurisdiction, the citizen status
of defendant BR Healthcare Solutions, LLC depends on the
citizenship status of all its members, and such information
has not been made available to this Court. See Harvey v.
Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir.
2008) (joining all other circuits to address the issue in
holding that “the citizenship of a LLC is determined by
the citizenship of all its members.”). To resolve this
jurisdictional issue, the remaining parties are hereby
instructed to advise this Court concerning the proper
disposition of these claims.
Defendant United States' Motion to Dismiss for Lack of
Subject-Matter Jurisdiction (docket no. 3) is
GRANTED. Plaintiffs' claims against the
United States are DISMISSED WITHOUT
PREJUDICE for lack of subject-matter jurisdiction.
and Defendant BR Healthcare Solutions LLC shall advise the
Court in writing within fourteen (14) days whether the
remaining claim against BR Healthcare Solutions, LLC can be
remanded under 28 U.S.C. § 1367, or, if diversity
jurisdiction exists, ...