United States District Court, N.D. Mississippi, Oxford Division
ROBERT IRVIN STOREY, and LETA M. STOREY PLAINTIFFS
UNITED STATES OF AMERICA, UNITED STATES OF AMERICA, d/b/a Veterans Affairs Medical Center-Memphis DEFENDANTS
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE.
before the court is a motion to dismiss for lack of subject
matter jurisdiction filed by the defendants. Upon due
consideration of the motion, response, and applicable
authority, the court is ready to rule.
and Procedural Background
plaintiffs, Robert and Leta Storey, bring this action
pursuant to the Federal Tort Claims Act (“FTCA”).
Robert alleges that the negligence of employees of the
Veterans Affairs Medical Center (“VAMC”) in
Memphis, Tennessee caused him to sustain personal injuries.
October 9, 2007 until November 8, 2013, VAMC employees
allegedly prescribed Robert four (4) times the maximum
allowable dosage of Rosuvastatin in combination with
Gemfibrozil. Robert contends that this combination caused
gallstones, cholecystitis, sepsis and pancreatitis, as well
as hospitalizations on three separate occasions.
Robert's wife, asserts a derivative claim for loss of
consortium and alleges that VAMC employees' actions
caused her emotional pain and suffering. The defendants have
filed the instant motion to dismiss for lack of jurisdiction
as to Leta's claim only.
filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the subject matter
jurisdiction of the court to hear a case.” Ramming
v. U.S., 281 F.3d 158, 161 (5th Cir. 2001). In
determining a Rule 12(b)(1) motion, the court may consider
(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. King v. U.S.
Dep't of Veterans Affairs, 728 F.3d 410, 413 (5th
Cir. 2013). The burden of proof for a Rule 12(b)(1) motion to
dismiss is on the party asserting jurisdiction. Id.
“Accordingly, the plaintiff constantly bears the burden
of proof that jurisdiction does in fact exist.”
Id. The court may properly dismiss a claim for lack
of subject matter jurisdiction if it determines that it lacks
either the statutory or constitutional authority to
adjudicate the claim. Home Builders Ass'n v. City of
Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
moving to dismiss for lack of jurisdiction, the defendants
argues that Leta failed to exhaust her administrative
remedies. It is well-settled that a plaintiff must first
exhaust her administrative remedies prior to filing an action
under the FTCA. Gregory v. Mitchell, 634 F.2d 199,
203 (5th Cir. 1981). The FTCA provides that “an action
shall not be instituted upon a claim against the
United States . . . unless the claimant shall have first
presented the claim to the appropriate Federal agency . . .
.” 28 U.S.C. § 2675(a) (emphasis added).
“Presentment of a claim to the appropriate agency and
denial of that claim by the agency in writing . . . are
prerequisites to a tort suit brought against the United
States.” Flory v. U.S., 138 F.3d 157, 159 (5th
Cir. 1998). Thus, a plaintiff's failure to comply with
the presentment requirement deprives the court of subject
matter jurisdiction. Price v. U.S., 69 F.3d 46, 54
(5th Cir. 1995).
argue that Leta's claims should be dismissed because she
undisputedly failed to submit a notice of claim with the
relevant federal agency as required by the FTCA. Leta,
however, argues that the FTCA's notice requirement was
satisfied when Robert filed his administrative claim with the
United States Department of Veterans Affairs
(“USDVA”). According to Leta, “[b]ecause
[her] claim is entirely derivative of [Robert's] claim
for medical malpractice, ” the USDVA “had
constructive notice, if not actual notice, of [her]
purpose behind the FTCA's notice requirement is “to
ensure that the agency is apprised of the circumstances
underlying the claim, so that the agency may conduct an
investigation and respond to the claimant by settlement of
defense.” Brown v. U.S., 838 F.2d 1157, 1160
(11th Cir. 1988) (citing Adams v. U.S., 615 F.2d
284, 289 (5th Cir. 1980)). In the instant case, Leta was not
identified as a claimant nor did she sign Robert's form.
Further, Robert failed to include Leta's loss of
consortium claim within his notice to the USDVA. Thus, the
court is unpersuaded that Robert's notice satisfied
Leta's obligation under the FTCA. See Saccuci, at *3
(finding that the plaintiff failed to meet the FTCA's
jurisdictional prerequisites because she was not identified
as a claimant, did not sign as a claimant, and her claim was
not included in the body of her spouse's administrative
courts that have addressed the question have routinely held
that “a spouse's loss of consortium claim must be
separately exhausted in order the give the  court
subject-matter jurisdiction.” Wilke v. U.S.,
2009 WL 590450, at *3 (S.D.Miss. Mar. 5, 2009); see also
Saccuci v. U.S., 2008 WL 11338797 (D. Ariz. June 19,
2009); Pipkin v. U.S. Postal Service, 951 F.2d 272
(10th Cir. 1991); Poynter v. U.S., 55 F.Supp.2d 558
(W.D. La. 1999); Walker v. U.S., 471 F.Supp. 38
(D.C. Fla. 1978) aff'd597 F.2d 770 (5th Cir.
1979). Accordingly, the court ...