United States District Court, N.D. Mississippi, Aberdeen Division
LINDA D. SWINNEY PLAINTIFF
MATTHEW NEAL, and THE UNITED STATES OF AMERICA DEFENDANTS
SHARION AYCOCK UNITED STATES DISTRICT JUDGE
Swinney originally filed her Complaint  in the Justice
Court of Prentiss County, Mississippi. Swinney's
Complaint names Matthew Neal and Rural Development c/o Hattie
Sweargen as Defendants. The Government, on behalf of Rural
Development, removed the case to this Court. See
United States was substituted for Rural Development and
subsequently moved to dismiss the Plaintiffs claims against
it. See Order , Motion . The pro se
Plaintiff failed to respond to the Government's request
for dismissal. Almost three months after the Government
requested dismissal, an attorney filed a notice of appearance
on the Plaintiffs behalf, and requested leave to file an out
of time response to the Government's pending Motion to
Dismiss . The Court granted the Plaintiff's request
for additional time, and the Plaintiff again failed to file
any response. See Order . Subsequently, after
the response deadlines expired, the Plaintiff filed a
separate Motion to Dismiss  conceding that she has failed
to plead a federal claim.
before the Court is the United States' Motion to Dismiss
. The United States argues that the Plaintiff's claims
against it should be dismissed pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject
matter jurisdiction and for failing to state a claim.
Rule 12(b)(1) motion is filed in conjunction with a Rule
12(b)(6) motion, . . . courts must consider the
jurisdictional challenge first.” McCasland v. City
of Castroville, Tex., 478 Fed.Appx. 860 (5th Cir. 2012)
(per curiam) (citing Wolcott v. Sebelius, 635 F.3d
757, 762 (5th Cir. 2011); Morgan v. Kingdom of Saudi
Arabia, 27 F.3d 169, 172 (5th Cir. 1994)). This
“prevents a court without jurisdiction from prematurely
dismissing a case with prejudice.” Id. at
860-61 (quoting Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001) (per curiam)); Hitt v. City of
Pasadena, Tex., 561 F.2d 606, 608 (5th Cir. 1977) (per
curiam). Accordingly, the Court first addresses the
12(b)(1) motion allows a party to challenge the Court's
subject matter jurisdiction. “[A] factual attack under
Rule 12(b)(1) may occur at any stage of the proceedings, and
plaintiff bears the burden of proof that jurisdiction does in
fact exist.” Arena v. Graybar Elec. Co., 669
F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v.
Chrysler Credit. Corp., 613 F.2d 507, 511 (5th Cir.
1980) (citations omitted)). In ruling on a Rule 12(b)(1)
motion to dismiss, the Court can 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.” Tsolmon v. United
States, 841 F.3d 378, 382 (5th Cir. 2016) (internal
quotation marks and citation omitted).
United States argues that the Plaintiff failed to exhaust her
administrative remedies, a jurisdictional prerequisite to
filing suit under the Federal Tort Claims Act, specifically
28 U.S.C. §2675(a). “Exhaustion of administrative
remedies is a jurisdictional prerequisite to suit under the
Tort Claims Act, and absent compliance with the statute's
requirement the district court was without
jurisdiction.” McAfee v. 5th Circuit Judges,
884 F.2d 221, 222-23 (5th Cir. 1989) (citing Rise v.
United States, 630 F.2d 1068, 1071 (5th Cir. 1980)).
Plaintiff's complaint is wholly devoid of any reference
to pursuit of an administrative remedy, notice to the United
States of her claim, and factual allegations against the
United States. As noted above the Plaintiff both concedes
this argument, and fails to carry her burden of establishing
subject matter jurisdiction. See Arena v. Graybar Elec.
Co., 669 F.3d 214, 223 (5th Cir. 2012); Jackson as
Next Friend of Martin v. Town of Tutwiler, Mississippi,
No. 3:17-CV-181, 2018 WL 6033596, at *2 (N.D. Miss. Nov. 16,
2018). Because this Court does not have subject matter
jurisdiction over the Plaintiff's federal claim, her case
against the United States is dismissed without prejudice.
federal claims surviving the Court “may decline to
exercise supplemental jurisdiction” over the
Plaintiff's remaining state law claims pursuant to 28
U.S.C. § 1367. United Mine Workers of America v.
Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218
(1966). The Court notes that no discovery has been conducted
in this case, it is still at a relatively early stage, and as
noted above, there are no factual allegations in the
Plaintiff's Complaint implicating the United States.
Thus, having dismissed all federal claims, the Court declines
to extend supplemental jurisdiction to hear the
Plaintiff's remaining state law claims and her case
against individual, non-diverse, Defendant Neal is remanded
to the Justice Court of Prentiss County, Mississippi.
of the reasons fully explained above, the Plaintiff's
claims against the United States, and Rural Development, are
DISMISSED without prejudice, and the United States is
DISMISSED from this action. All remaining claims are REMANDED
to the Justice Court of Prentiss County, ...