United States District Court, N.D. Ohio, Eastern Division
R. ADAMS UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of Defendant United
States of America to dismiss the Complaint of Plaintiffs
Kelly Copen and Paul Copen pursuant to Fed.R.Civ.P. 12(b)(1).
Having considered the parties' arguments, the evidence,
and applicable law, the Court hereby ORDERS that the motion
to dismiss (Doc. 10) is GRANTED, for the reasons set forth
suit is tort action originally filed in the Court of Common
Pleas for Stark County Ohio. Plaintiffs Kelly and Paul Copen,
a daughter and father, allege that they suffered personal
injuries when, on May 19, 2017, a postal delivery truck
driven by federal employee Michael Blanchard rear-ended
Plaintiffs' vehicle. Plaintiff Paul Copen owned and was
driving the vehicle, while Plaintiff Kelly Copen was a
passenger in the vehicle. The parties agree that Mr.
Blanchard was acting in the course and scope of his
employment at the time of the accident.
case was removed to federal court on June 11, 2019. Following
removal, the United States filed the instant motion
requesting dismissal for lack of subject matter jurisdiction,
on the basis that “Plaintiffs failed to file an
administrative claim, a pre-requisite to jurisdiction under
the Federal Tort Claims Act.” (Doc. 10.)
may move to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to
adjudicate the case. “When a defendant attacks subject
matter jurisdiction under Rule 12(b)(1), the plaintiff must
meet the burden of proving jurisdiction.” Cline v.
United States, 13 F.Supp.3d 868, 870 (M.D. Tenn. 2014),
(citing Golden v. Gorno Bros., Inc., 410 F.3d 879,
881 (6th Cir. 2005)). A motion to dismiss under Fed.R.Civ.P.
12(b)(1) based upon a lack of subject matter jurisdiction is
generally presented in two ways, as facial challenges or as
factual challenges. Lovely v. United States, 570
F.3d 778, 781-82 (6th Cir. 2009); 2A James W. Moore,
Moore's Federal Practice ¶ 12.07 [2.-1], at 12-50 to
12-55 (2d ed. 1996). When a court reviews a complaint
pursuant to a factual attack to subject matter jurisdiction,
no presumption of truthfulness applies and the court must
weigh evidence to arrive at a factual justification for
subject matter jurisdiction. See Ohio Nat. Life Ins. Co.
v. United States, 922 F.2d 320, 325 (6th Cir. 1990). The
court has wide discretion to allow affidavits and documents.
well-settled that “federal courts are courts of limited
jurisdiction.” United States v. Bellsouth
Telecomm., Inc., 123 F.3d 935, 937 (6th Cir. 1997),
(citing Aldinger v. Howard, 427 U.S. 1, 15 (1976)).
They have only such jurisdiction as is conferred upon them
either by the Constitution or by act of Congress. Ins.
Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694 (1982). Thus, there is a
presumption that a federal court lacks subject matter
jurisdiction until it is shown to exist. Memphis Am. Fed.
of Teachers, Local 2032 v. Bd. of Educ. of Memphis City
Sch., 534 F.2d 699 (6th Cir. 1976). The party claiming
jurisdiction has the burden of demonstrating that subject
matter jurisdiction exists. Bellsouth, 123 F.3d at
addition, the United States, as sovereign, is immune from
suit except as it specifically consents to be sued, and the
terms of its consent must be strictly construed. United
States v. Testan, 424 U.S. 392, 399 (1976); United States
v. Sherwood, 312 U.S. 584, 590 (1941). The Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§
2671-80, is a limited waiver of the government's
sovereign immunity. The FTCA provides the
“exclusive” remedy for injury or loss of property
arising or resulting from the negligent or wrongful act of a
government employee. 28 U.S.C. § 2679(b)(1).
condition which the United States has imposed upon its
consent to be sued under the FTCA is the requirement that a
plaintiff present an administrative claim to the responsible
federal agency prior to initiating suit. 28 U.S.C. §
2675(a). That section provides, in pertinent part:
a) An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
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.
filing of an administrative claim “is an absolute
prerequisite” to maintaining an action against the
government. Miller v. United States, 418 F.Supp.
373, 375 (D. Minn. 1976), (quoting Meeker v. United
States, 435 F.2d 1219, 1220 (8th Cir. 1970)); see,
e.g., Ducharme v. Merrill-Nat'l Lab., 574 F.2d 1307,
1311 (5th Cir. 1978); accord, Rosario v. Am.
Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1231 (3d
Cir. 1976); Pennsylvania v. Nat'l Ass'n of Flood
Insurers, 520 F.2d 11, 20, 23-24 (3d Cir. 1975);
Exec. Jet Aviation Inc. v. United States, 507 F.2d
508, 514 (6th Cir. 1974); Melo v. United States, 505
F.2d 1026, 1028 (8th Cir. 1974); Caton v. United
States, 495 F.2d 635, 637 (9th Cir. 1974); Best
Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th
Cir. 1972); Bialowas v. United States, 443 F.2d
1047, 1049 (3d Cir. 1971); Mann v. United States,
399 F.2d 672, 673 (9th Cir. 1968). There can be no waiver of
this requirement. Pennsylvania, 520 F.2d at 20;
Bialowas, 443 F.2d at 1049. Nor can the Government
be estopped from asserting this defense. Mayo v. United
States, 407 F.Supp. 1352 (E.D. Va. 1976). “Where,
as in the [Federal]Tort Claims Act, a sovereign waives its
immunity, and by statute creates a cause of action and
consents to be sued upon it, suits filed thereunder must be
filed in exact compliance with the terms of consent.”
Childers v. United States, 316 F.Supp. 539, 542
(S.D. Tex. 1970), aff'd, 442 F.2d 1299 (5th Cir.
the parties do not dispute that Mr. Blanchard was a federal
employee of the United States Postal Service
(“USPS”), and was acting in the course and scope
of his official duties during the incident alleged in the