United States District Court, N.D. Ohio, Eastern Division
C. NUGENT JUDGE.
matter is before the Court on Defendant's Partial Motion
to Dismiss Complaint (ECF #18) for lack of subject matter
jurisdiction over Plaintiff Larry Metheney and his loss of
consortium claim. Plaintiffs, Tara and Larry Metheney, filed
a Memorandum in Opposition to Defendant's Partial Motion
to Dismiss Complaint (ECF #24) and Defendant filed a Reply
(ECF #26). For the reasons set forth herein, Defendant's
Partial Motion to Dismiss Complaint (ECF #18) is GRANTED.
AND PROCEDURAL HISTORY
Tara Metheney received ankle replacement surgery at the Louis
Stokes Veterans Medical Center ("VAMC") on April
23, 2012. (Complaint ¶ 7). After multiple appointments
at VAMC related to her ankle surgery, she received surgery on
the same ankle, from a different provider, on March 2, 2015.
filed a Standard Form 95 with the Department of Veterans
Affairs in July 2015. (ECF #18-3, Attached Ex. A, PageID#
111). Plaintiff Larry Metheney was not listed as a claimant
on the form, nor was a loss of consortium claim mentioned
anywhere on the form. (Id.). Plaintiff Larry
Metheney did not file a separate administrative claim with
the VA. (Hales Decl. ¶ 4; ECF #18-2, PageID# 109).
Following the final denial of Plaintiff Tara Metheney's
claim on March 30, 2016, the Plaintiffs filed the Complaint
in this case. (Complaint ¶ 4). Plaintiff Larry Metheney
asserts in the Complaint that he "lost the consortium,
services and companionship of his spouse, Plaintiff Tara
Metheney." (Complaint ¶ 20).
Rule of Civil Procedure 12(b)(1) provides for the dismissal
of a complaint over which the Court lacks subject matter
jurisdiction. "Where subject matter jurisdiction is
challenged pursuant to 12(b)(1), the plaintiff has the burden
of proving jurisdiction in order to survive the motion."
Mich. S. R.R. Co. v. Branch & St. Joseph Counties
Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th
Cir.2002). Rule 12(b)(1) motions to dismiss based upon
subject matter jurisdiction generally come in two varieties.
"A facial attack on the subject matter jurisdiction
alleged by the complaint merely questions the sufficiency of
the pleading. In reviewing such a facial attack, a trial
court takes the allegations in the complaint as true, which
is a similar safeguard employed under 12(b)(6) motions to
dismiss." McGuire v. Ameritech Servs., 253
F.Supp.2d 988, 993-94 (S.D.Ohio 2003) (quoting Ohio
Nat'l Life Ins. Co. v. United States, 922 F.2d 320,
325 (6th Cir.1990)). In contrast, a factual challenge
"is not a challenge to the sufficiency of the
pleading's allegations, but a challenge to the factual
existence of subject matter jurisdiction. On such a motion,
no presumptive truthfulness applies to the factual
allegations and the court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the
case." United States v. Ritchie, F.3d 592, 598
(6th Cir.1994) (citations omitted).
case, Defendant presents a factual challenge. The Federal
Tort Claims Act ("FTCA") provides a "limited
waiver of the [United States'] immunity from suits for
torts committed by federal employees and places several
conditions on the waiver." Ellison v. United
States, 531 F.3d 359, 361 (6th Cir. 2008). See
generally 28 U.S.C. §§ 2674-2680. One of those
conditions is that, before bringing a claim under the FTC A,
a claimant must file an administrative claim against the
appropriate federal agency and exhaust administrative
remedies. 28 U.S.C. § 2675(a). This is a jurisdictional
requirement which applies to each claim and each claimant.
Rucker v. U.S. Dep 't of Labor, 798 F.2d 891,
893 (6th Cir. 1986).
admit that "Larry Metheney was not specifically named a
claimant" on the Standard Form 95. (ECF #24, PageID#
129). Nonetheless, Plaintiffs argue that "[t]he
Department of Veterans Affairs possessed sufficient
information ... to infer that 1) Larry Metheney was the
spouse of Tara Metheney and 2) that he had suffered a loss of
consortium as a result of [her] injuries." (Id.
at PageID# 131). This is not enough: "[Identifying a
claimant's [spouse] on a Standard Form 95, without more,
is not sufficient to fulfill the jurisdictional requirements
of 28 U.S.C. § 2675(a)." Rucker v. US.
Dep't of Labor, 798 F.2d 891, 893 (6th
Cir. 1986). Here, Plaintiff Larry Metheney is not even
identified as Plaintiff Tara Metheney's husband on the
Standard Form 95 and there is no loss of consortium claim
Plaintiff Larry Metheney failed to present an administrative
claim to the VA, as required by the FTCA, this Court does not
have subject matter jurisdiction over his loss of consortium
Larry Methenev failed to meet the jurisdictional requirements
of the FTCA and. as a result, this Court lacks subject matter
jurisdiction over his loss of consortium claim. For this
reason. Defendant's Partial Motion to Dismiss Complaint
(ECF #18) is hereby GRANTED. Plaintiff Larry Meiheney and the