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Copen v. United States

United States District Court, N.D. Ohio, Eastern Division

December 22, 2019

KELLY COPEN, et al., Plaintiffs,



         This 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 below.

         I. BACKGROUND

         This 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.

         This 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.)


         A party 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. Id.


         It is 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 937.

         In 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).

         A key 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.

         The 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. 1971).

         Here, 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 ...

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