United States District Court, S.D. Mississippi, Northern Division
DANIEL P. JORDAN, III, District Judge.
This medical-malpractice case, brought pursuant to the Federal Tort Claims Act, is before the Court on Defendant's Motion to Dismiss for Lack of Jurisdiction . Because Plaintiff failed to timely file her claim under the FTCA, the motion to dismiss is granted.
I. Facts and Procedural History
Plaintiff Marianne Sandoz underwent left cubital tunnel release surgery on October 6, 2011, at the G.V. Sonny Montgomery VA Medical Center. During the course of the surgery, and due to the alleged negligence of the VA surgeons performing the operation, Sandoz's ulnar nerve was transected, "causing permanent injury, pain, suffering, damage and harm to Ms. Sandoz's left arm and hand." Compl.  ¶ 13.
On February 2, 2011, Sandoz timely filed an administrative claim pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), with the Department of Veterans Affairs ("the Department"). Although Sandoz asserts that, as of the date she filed this lawsuit, "no action has been taken on said administrative claim by the Defendant, " Compl.  ¶ 4, the Department denied the claim by letter to Sandoz's lawyer dated July 23, 2012, Brooks Decl.  ¶ 3 & Ex. C.
Sandoz filed this lawsuit on November 8, 2013. Defendant filed an Answer  and subsequently moved to dismiss for lack of subject-matter jurisdiction . Sandoz failed to file a timely response, and on August 20, 2014, the Court entered a show-cause order. Sandoz responded [17, 18]; Defendant filed a rebuttal , and the Court is now prepared to rule.
"The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Ramming, at 161 (citations omitted). In considering whether jurisdiction exists, the Court is not bound by the allegations in the complaint. "Lack of subject matter jurisdiction may be found in any one on three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming, at 161; In re FEMA Trailer Formaldehyde, at 189.
The FTCA grants federal district courts "exclusive jurisdiction of civil actions on claims 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." 28 U.S.C. § 1346(b). The FTCA waives the United States's sovereign immunity from tort suits and is the exclusive remedy for damages arising from the tortious acts of federal agencies or their employees. McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998) (citing 28 U.S.C. §§ 2674, 2679). The FTCA contains a statute of limitations:
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 or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
28 U.S.C. § 2401(b) (emphasis added).
Defendant asserts that the Complaint must be dismissed because Sandoz failed to file her lawsuit within six months after the Department mailed its final denial to her at her attorney's Mandeville, Louisiana address. Pursuant to applicable regulations, denial of a claim under the FTCA "shall be... sent to the claimant, his attorney, or legal representative." 28 C.F.R. § 14.9; see Childers v. United States, 442 F.2d 1299, 1302 (5th Cir. 1971). And in this case, the address to which the Department sent the denial notice is the same address associated with Sandoz's attorney in the Court's own records. Compare Docket Sheet (listing Steven Jay Irwin's business address as 761 Magnolia Ridge Drive East, Mandeville, LA 70448), with Brooks Decl.  Ex. C (same). Finally, Defendant has provided a receipt stating that the letter was delivered "in MANDEVILLE LA 70448." Def.'s Mot. 14-1 at 2.
Sandoz counters that she never received the denial and contends that Defendant has not proven "that the delivery was made to [Sandoz's lawyer's] address." Pl.'s Mem.  at 3. In other words, she believes the Government must at least prove ...