DAVIDSON v. WYNN

HELEN BERRIGAN, Chief Judge

Before the Court is a Motion to Dismiss filed by the United States of America ("USA") on behalf of the Small Business Administration ("SBA") (Rec. Doc. 7). Plaintiff, Stacy Davidson ("Davidson") opposes the motion. The motion is before the Court on the briefs, without oral argument. Having considered the memoranda of counsel, the record and the applicable law, the Court finds that the and Motion to Dismiss is GRANTED.

Davidson filed her petition, which included the SBA as a defendant, on January 19, 2007. Then, on January 22, 2007 the SBA received an administrative claim submitted by Davidson. The USA now moves for dismissal, on behalf of the SBA, because Davidson failed to exhaust her administrative remedies before filing suit in the district Court.

The standard of review for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is the same as that for a Rule 12(b)(6) motion. U.S. v. City of New Orleans, 2003 WL 22208578 (E.D.La. 2003); Benton v. U.S., 960 F.2d 19, 21 (5^th Cir. 1992). The moving party bears the burden of showing that the "plaintiff can prove no set of facts which would entitled it to relief." Baton Rouge Bldg, Constr. Trades Council AFL-CIO v. Jacobs Constructors, Inc., 804 F.2d 1384, 1386 (5^th Cir. 1991). Conclusory allegations or legal conclusions, however, will not suffice to defeat a motion to dismiss. See, Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5^th Cir. 1993). A court's ultimate conclusion that a case should be dismissed may rest "on any one of three separate bases: (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." Barrera-Montenegro v. U.S., 74 F.3d 656, 659 (5^th Cir. 1996) (citations omitted).

Without a waiver of sovereign immunity, a district court lacks subject matter jurisdiction over claims against the USA. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The plaintiff has the burden of pleading sufficient facts to support the existence of this court's jurisdiction. See, Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4^th Cir. 1999); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936).

In the case at bar, Davidson brings tort claims against the SBA, a division of the United States government. These claims are governed by the Federal Tort Claims Act, 28 U.S.C. § 1346(b), § 2671, et. seq. ("FTCA"), which waives the USA's sovereign immunity for certain money damages claims. However, under 28 U.S.C. § 2679 the USA, not SBA, is the proper party. Therefore, the USA should be substituted for SBA.

The FTCA is a waiver of sovereign immunity that must be strictly construed. See, United States v. Sherwood, 312 U.S. 584, 590-91, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Congress, in granting a waiver of sovereign immunity, may define the exact conditions of such waiver. See, Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967). Under the FTCA, a party has two years within which to file a claim for a tort against the federal government. However, the USA's consent to being sued in tort under the FTCA is limited. One such limitation is that the plaintiff must first exhaust her administrative remedies. Specifically, 28 U.S.C. § 2675(a) provides that an action shall not be instituted upon a claim against the USA for money damage unless the claimant has first presented the claim to the appropriate federal agency and her claim has been finally denied by the agency in writing and sent to her by registered mail. The failure of an agency to make a final disposition of a claim within six months after it is filed shall be deemed a final denial of the claim. See, 28 U.S.C. § 2675(a) (2006). Furthermore, an administrative claim submitted after a lawsuit is filed cannot cure a jurisdictional defect which was present when the suit was filed. McNeil v. United States, 508 U.S. 106, 106, 113 S.Ct. 1980, 1981, 124 L.Ed.2d 21 (1980).

The USA asserts that Davidson's action should be dismissed for failure to exhaust administrative remedies because she did not file a claim with the proper agency before instituting this suit in the district court. Davidson, on the other hand, claims that she filed a claim with the proper agency shortly after filing this suit and requests that this proceeding be stayed rather than dismissed.

The Court finds that Davidson did not fulfill the administrative claim prerequisite to a district court suit as required by the FTCA. Thus, the Court lacks subject matter jurisdiction over this action. As stated above, 28 U.S.C. § 2675(a) clearly dictates that an action shall not be instituted unless the claimant first presents her claim to the appropriate federal agency and her claim has been denied in writing. Since Davidson's claim had not been presented to the agency and "finally denied" by it prior to her instituting the present action, the Court finds that the complaint was prematurely filed. Furthermore, the Fifth Circuit has held that a stay is not appropriate if a court determines that the plaintiff has failed to exhaust her administrative remedies before filing a FTCA action. U.S. v. Burzynsky Concer Research Institute, et. al., 819 F.2d 1301, 1306-7 (5^th Cir. 1987). As a result, dismissal is appropriate.

For the reasons stated above,

IT IS ORDERED that the Motion Dismiss filed by the USA on behalf of the SBA is GRANTED.

IT IS FURTHER ORDERED that the claims are DISMISSED WITHOUT PREJUDICE.