RALPH BEISTLINE, District Judge
I. INTRODUCTION
Before the Court is Defendant United States of America with a Motion to Dismiss the Plaintiff's action "because Plaintiff failed to file a timely administrative claim with the appropriate agency, a jurisdictional prerequisite to filing a lawsuit against the United States for a tort, and because her claim failed to state the amount of her claim." There is no opposition.
Clerk's Docket No. 8 at 1.
Because the Court concludes that it does not have jurisdiction, Defendant's Motion to Dismiss is GRANTED.
II. FACTS
Plaintiff filed a suit in State court alleging that she was harmed in an automobile accident. The United States of America removed the action to this Court, after substituting in for the original Defendant.
Clerk's Docket No. 5 at Ex. 1.
Clerk's Docket No. 4.
III. STANDARD OF REVIEW
A Rule 12(b)(1) motion may raise a facial challenge to the court's subject matter jurisdiction or attack the existence of subject matter jurisdiction in fact. When the motion to dismiss is a factual challenge, no presumptive truthfulness attaches to the plaintiff's allegations. In filing suit against the United States, the timely filing of an administrative claim is a jurisdictional prerequisite that cannot be waived. When a plaintiff fails to exhaust her administrative remedies before filing suit in federal court, the proper remedy is dismissal of her claim.
2 James W. Moore, MOORE'S FEDERAL PRACTICE, § 12.30[4] at 12-38 (3d ed. 1977) ("MOORE").
Thornhill Publ'g Co. v. Gen. Tel. Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
Landreth by and through Ore. v. United States, 850 F.2d 532, 533 (9th Cir. 1988).
McNeil v. United States, 508 U.S. 106, 113 (1993).
IV. DISCUSSION
The United States Code states, in part:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting whin the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
Here, the lawsuit commenced on January 1, 2005. The claim was first presented to the Army on August 5, 2005. Thus, the claim was not "first presented . . . to the appropriate Federal agency." And, there was no opportunity for the agency to finally deny the claim before the lawsuit was initiated. Thus, there was no timely filing of an administrative claim to provide the Court with jurisdiction.
Clerk's Docket No. 5 at Ex. 1.
Clerk's Docket No. 8 at Ex. 1.
As the Court has no jurisdiction, it is not necessary to also decide whether the Plaintiff failed to state the amount of her loss in her claim.
V. CONCLUSION
For the reasons stated herein, Defendant's Motion to Dismiss is GRANTED.