Opinion
Civil Action No. 1:00cv40-D-D
May 12, 2000
OPINION
This cause comes before the court on the Government's motion to dismiss. Upon due consideration of the motion, the court finds that it should be granted.
Procedural History
Plaintiff, Brad Baggett originally filed this cause of action on December 15, 1999, in the Circuit Court of Lee County, Mississippi, against Reese Robins and the City of Tupelo, Mississippi. Baggett alleged that he was injured in a motor vehicle accident which occurred on December 16, 1998, as the result of the negligence of Defendant Robins, who the Plaintiff alleged, was an employee of the City of Tupelo and was acting within the course and scope of his employment at the time of the accident.
On February 3, 2000, the United States filed a Certification in the state court matter stating that Robins was acting within the course and scope of his employment as an employee of the United States, specifically as a member of the National Guard, at the time of the alleged incident, and that the Plaintiff's Complaint should properly be governed by the Federal Tort Claims Act. On that same date, the United States filed a Notice of Removal and a Notice of Substitution in this court, substituting the United States as the proper Defendant, in the place and stead of Robins, in accordance with 28 U.S.C. § 2679, which provides that a suit against the United States shall be the exclusive remedy for persons with claims for damages resulting from the negligent or wrongful acts of federal employees taken within the scope of their employment. By order entered February 28, 2000, the undersigned directed that the claims set forth in the Complaint against Reese Robins be dismissed and that the United States be substituted as the sole Defendant of those claims.
Baggett filed no objection to the Notice of Substitution or Certification submitted by the United States.
Discussion Failure to Comply with Local Rules
Under Rule 7.2(D) of the Uniform Local Rules of the United States District Courts for the Northern District of Mississippi and the Southern District of Mississippi, the Plaintiff's opposition to the instant motion to dismiss was due within ten days after service of the movant's motion. The certificate of service attached to Defendant's motion indicates that the motion was served on March 8, 2000. Despite the passage of over two months, the Plaintiff has yet to file any opposition to the motion, or request an extension of time in which to file a response. Local Rule 7.2(D) also provides that "[i]f a party fails to respond to any motion other than a motion for summary judgment within the time allotted, the court may take the motion as confessed." Therefore, the Government's motion may properly be granted as unopposed. In the interest of judicial economy, however, the court will address the merits of the Defendant's Motion to Dismiss.Federal Tort Claims Act
The United States contends that the Plaintiff has failed to exhaust his administrative remedies as required under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2675(a). As noted above, because the Plaintiff seeks money damages for personal injury and loss of property resulting from the negligent or wrongful acts of an employee of the United States while acting within the course and scope of his employment, this action falls within the purview of the exclusiveness of remedy provision of the Federal Tort Claims Act, 28 U.S.C. § 2679(b)(1), and the administrative exhaustion provision, 28 U.S.C. § 2675(a)("An action shall not be instituted . . . 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. . . .").
It is well-settled that the administrative exhaustion requirement is jurisdictional. See Hassan v. Louisiana Dept. of Trans. Dev., 923 F. Supp. 890, 893 (W.D.La. 1996) ("The failure of a claimant to exhaust his administrative remedies prior to asserting a federal action under the provisions of the FTCA deprives the court of subject matter jurisdiction over the suit.") (citing Reynolds v. United States, 748 F.2d 291, 292 (5th Cir. 1984)). According to the unsworn declaration of Joseph H. Rouse, Chief and Deputy Chief of Tort Claims Division, U.S. Army Claims Service, he "receive[s] all claims against the Army, in the amount in excess of $25,000 and ha[s] knowledge of claims under $25,000" and a search of the department's records and files revealed that no administrative claim has been filed by Brad Baggett. Furthermore, Baggett has neither alleged nor proved that he has presented any administrative claim arising out of the alleged incident to any federal agency.
The court in Hassan stated that the FTCA "constitutes the federal government's waiver of its immunity to a variety of suits and sets forth the specific conditions of that waiver." 923 F. Supp. 890, 893 (W.D.La. 1996).
Accordingly, the court is of the opinion that it lacks subject matter jurisdiction over this cause and that the Complaint should be dismissed. Because the alleged incident occurred on December 16, 1998, this cause shall be dismissed without prejudice. See 28 U.S.C. § 2401(b)("A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues. . . .").
For the foregoing reasons, the court finds that the Defendant's motion to dismiss should be granted. A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that:the Defendants Motion to Dismiss is GRANTED; and
the Plaintiff's claims against the United States are DISMISSED WITHOUT PREJUDICE.