Sears et al v. USA, No. 6:2021cv00006 - Document 8 (E.D. Ky. 2021)
Court Description: OPINION & ORDER: For the reasons stated, the Court hereby ORDERS that the United States' motion to dismiss (DE 6 ) is GRANTED. The Court shall enter a corresponding Judgment. Signed by Judge Karen K. Caldwell on 04/01/2021.(KJA)cc: COR
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Sears et al v. USA Doc. 8 Eastern District of Kentucky FILED UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON JOYCE SEARS, /:. ·}~ 0 1 2021 AT LEXiNGTON HOBERT R. CARR r.,_rn~ J.S. DISTRICT COURT CIVIL NO. 6:21-06-KKC Plaintiff, v. OPINION AND ORDER UNITED STATES OF AMERICA, Defendant. *** *** *** This matter is before the Court on the United States' Motion to Dismiss Plaintiffs Complaint pursuant to Fed. R. Civ. P. 12(b)(l) for lack of subject matter jurisdiction. The United States' motion to dismiss is predicated on the plaintiffs alleged failure to present and exhaust her administrative claims, under the Federal Tort Claims Act, as expressly required by 28 U.S.C. § 2675(a). (DE 6). In response, Plaintiff argues that she has presented her claims to the Department of Health and Human Services (HHS), and that she expects to receive a response from the HHS as to her claims no later than April 14, 2021. She asks the Court to hold this case in abeyance pending exhaustion. (DE 7). However, case law suggests that dismissal is the appropriate result. In McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court clarified that a prematurely filed FTCA claim must be dismissed even if the plaintiff ultimately exhausts his administrative remedies before "substantial progress" has occurred in the case. 508 U.S. at 110-13. There, the plaintiff filed a FTCA claim against the United States in federal court before exhausting his administrative remedies. After exhausting, the plaintiff notified the district court that his administrative claim had been denied. The district court granted the Dockets.Justia.com United States' motion to dismiss the plaintiffs complaint as premature due to the failure to exhaust before filing. The Supreme Court affirmed, settling a circuit split over whether a premature FTCA complaint could survive dismissal if administrative exhaustion occurred before "substantial progress" had been made in the federal litigation. See id. at 110-13. Accordingly, for these reasons, the Court hereby ORDERS that the United States' motion to dismiss (DE 6) is GRANTED. The Court shall enter a corresponding Judgment. Dated April 1, 2021 2
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