Cole v. Milosevic ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lynae A Cole, No. CV-21-01636-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 United States of America, 13 Defendant. 14 15 Pending before the Court is Defendant’s Motion to Dismiss (Doc. 7). Pro se 16 Plaintiff has not filed a response, and the time to do so has expired. LRCiv 7.2. 17 I. Plaintiff’s Complaint, Removal, and Substitution of Defendant 18 Plaintiff originally filed this matter in Maricopa County Justice Court. 19 (Doc. 1-4 at 2). The Complaint brought several claims against the sole named Defendant 20 Gordana Milosevic for events that arose at the Phoenix Veterans Affairs (“VA”) Medical 21 Center. (Id.) Plaintiff generally alleges that Ms. Milosevic made false statements about 22 Plaintiff, which created a hostile work environment and damaged Plaintiff’s personal and 23 professional reputation. (Id.) Because these false statements were reported to VA 24 management, Plaintiff alleges Ms. Milosevic attempted to defraud the United States 25 Government. (Id.) 26 28 U.S.C. § 2679(d)(2) allows the Attorney General to certify that a defendant 27 employee was acting within the scope of employment for the United States at the time of 28 the incident out of which the claim arose, and, if so, any civil action in state court shall be 1 removed to the federal district court. Here, the United States removed this action to this 2 Court and subsequently certified under 28 U.S.C. § 2679(d)(2) that Ms. Milosevic was 3 acting within the scope of her employment as a United States employee at the VA. 4 (Doc. 4). 5 After removal, the Unite States filed a Notice of Substitution, which substituted the 6 United States as the Defendant in the place of Ms. Milosevic. (Doc. 6). The basis of the 7 substitution was the Federal Tort Claims Act, which permits suits against the United States 8 as the exclusive remedy for tort claims resulting from the wrongful acts of federal 9 employees performed within the scope of their employment. See 28 U.S.C. § 2674. The 10 United States subsequently filed a motion to dismiss pursuant to Federal Rule of Civil 11 Procedure 12(b)(1). (Doc. 7). 12 II. Defendant’s Motion to Dismiss Under Rule 12(b)(1) 13 A motion made under Rule 12(b)(1) challenges a court’s subject-matter jurisdiction. 14 Federal district courts presume they do not have jurisdiction, or the power, to hear any 15 claim. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It is the 16 burden of the party asserting jurisdiction to show the court has jurisdiction. Id. Here, 17 Plaintiff has the burden of showing the Court has jurisdiction. 18 The United States argues this Court lacks jurisdiction because Plaintiff failed to 19 submit an administrative claim and exhaust her administrative remedies. (Doc. 7 at 4). 20 Under 28 U.S.C. § 2675, a party may not pursue an action against the United States for 21 money damages resulting from the wrongful act of Government employee unless that party 22 first presented the claim to the appropriate agency. This is referred to as exhausting the 23 administrative remedies for a claim. See D.L. v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 24 2017). Federal district courts have no power to hear claims brought by a party that has 25 failed to exhaust its administrative remedies. Id. 26 As the United States argues, “Plaintiff has not presented anything resembling an 27 administrate claim to the VA.” (Doc. 7 at 5). Because Plaintiff has not responded to the 28 United States’ Motion, she fails to carry her burden of showing the Court that it may 1 exercise jurisdiction over this matter. See Kokkonen, 511 U.S. at 377. The Court must, 2 therefore, presume that it lacks jurisdiction to hear this matter. 3 III. Conclusion 4 In summary, Plaintiff has brought a suit against a United States employee for 5 wrongful conduct that occurred as part of the employee’s job. Although it appears Plaintiff 6 intended to sue the employee in her personal capacity, she may not. Her action is properly 7 brought against the United States. But before the Court may hear Plaintiff’s claim for 8 money damages against the United States, she must show she first attempted to file a claim 9 with the VA. Because she has not, the Court must grant the United States’ Motion to 10 Dismiss and dismiss Plaintiff’s Complaint. 11 Plaintiff, if she chooses, may file a first amended complaint.1 See Lopez v. Smith, 12 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (holding that a pro se litigant must be given 13 leave to amend her complaint “if it appears at all possible that the plaintiff can correct the 14 defect” in the complaint); Fed. R. Civ. P. 15(a)(2) (leave to amend should be “freely” given 15 “when justice so requires”). Plaintiff should be aware that the Court will summarily 16 dismiss any claim made against Gordana Milosevic for monetary damages as futile. If 17 Plaintiff does not file a first amended complaint on or before January 7, 2022, the Court 18 will dismiss this action. 19 Accordingly, 20 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Doc. 7) is 21 granted. Plaintiff’s Complaint (Doc. 1-4) shall be dismissed. 22 … 23 … 24 … 25 … 26 … 27 1 Because Plaintiff is appearing pro se, she may information contained within the District’s 28 Handbook for Self-Represented Litigants of use. The Handbook is available online at https://www.azd.uscourts.gov/handbook-self-represented-litigants. 1 IT IS FURTHER ORDERED that Plaintiff may file a first amended complaint no 2|| later than January 7, 2022. If Plaintiff does not file a first amended complaint by January || 7, 2022, the Clerk of Court shall dismiss this action without further order of this Court. 4 Dated this 22nd day of November, 2021. 5 6 ( . Do ee 7 norable'DiangJ4. Hurfetewa g United States District Fudge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-