Security National Insurance Co v. United States , 636 F. App'x 965 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SECURITY NATIONAL INSURANCE No. 14-15479
COMPANY, as subrogee of All Power,
Inc., D.C. No. 2:13-cv-01594-MCE-
CKD
Plaintiff - Appellant,
v. MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Submitted February 12, 2016**
San Francisco, California
Before: SILVERMAN and TALLMAN, Circuit Judges and LASNIK,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert S. Lasnik, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.
Security National Insurance Company appeals the district court’s Rule
12(b)(1) dismissal of its action alleging claims against the United States under the
Federal Tort Claims Act. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
review de novo. Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). We
affirm.
The district court properly dismissed the lawsuit for lack of subject matter
jurisdiction because neither the plaintiff insurance company, nor its insured (in
whose shoes the insurance company stands) filed an administrative claim prior to
filing suit. See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 113
(1993); Brady, 211 F.3d at 502-03. Security National’s arguments that it should be
excused from § 2675(a)’s exhaustion requirement because other parties with
overlapping interests have filed their own claims lack merit. Section 2675(a) is
jurisdictional. Brady, 211 F.3d at 502. In the absence of jurisdiction, Security
National’s arguments based on the Federal Rules of Civil Procedure are beside the
point. Fed. R. Civ. P. 82; Canatella v. California, 404 F.3d 1106, 1113 (9th Cir.
2005). Procedural rules cannot create jurisdiction. See Canatella, 404 F.3d at
1113.
AFFIRMED.
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