United States District Court, D. New Mexico
DARRELL H. LEE, as Personal Representative of HAROLD LEE, Deceased Plaintiff,
CITY OF GALLUP, a Municipal Corporation Of the State of New Mexico, et al. Defendants. And DARRELL H. LEE, as Personal Representative of HAROLD LEE, Deceased Plaintiff,
UNITED STATES OF AMERICA, Defendant
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant United States of
America's (“Defendant US”) Motion to Dismiss
for Lack of Subject Matter Jurisdiction All Claims That Were
Not Administratively Exhausted (“Motion to
Dismiss”), filed October 6, 2016. (Doc. 107). Plaintiff
Darrell Lee (“Plaintiff”), as personal
representative to Harold Lee, filed a response on October 13,
2016, (Doc. 112), and Defendant U.S. filed a reply on October
24, 2016. (Doc. 113).
10, 2017, the Court held a hearing on the Motion to Dismiss,
with Paul Barber representing Plaintiff and Ruth Keegan
representing Defendant US. (See Doc. 118). Lynn
Isaacson was also present at the hearing on behalf of
Defendant the City of Gallup. At the conclusion of the
hearing, the Court granted the Motion to Dismiss and
dismissed the claims in the Second Amended Complaint to
Recover Damages for Personal Injuries and Wrongful Death
(“Complaint”) that were not fully exhausted.
(Doc. 1). This Memorandum Opinion and Order more
fully explains the Court's decision.
case concerns the death of Harold Lee (“Mr. Lee”)
at the Gallup Detox Facility (“GDF”). On June 14,
2014, Mr. Lee was taken to GDF with a blood alcohol content
(“BAC”) of .483. (Doc. 1) at ¶ 27. Mr. Lee
was found dead at GDF the next day. (Doc. 112) at 2. On
November 19, 2014, Plaintiff filed an administrative claim
with the United States Department of Health and Human
Services (“DHS”). (Doc. 107-1) at 2. Plaintiff
asserted as the basis of the administrative claim:
[d]ecendent Harold Lee was taken to a detoxification facility
operated by the Navajo Nation pursuant to a P.L. 93-638
contract in Gallup, New Mexico. He was acutely intoxicated.
He was not tested for or assessed for ethanol poisoning, and
was not given medical attention. . . . Decedent was found
dead at the facility on 15 Ju[ne] 2014, death having occurred
at the facility some time the previous night. Cause of death
was acute ethanol intoxication.
Id. As to the nature of the injury, the claim states
that Mr. Lee “died as a consequence of acute ethanol
intoxication while in the care of the Navajo Nation Gallup
Detoxification Facility.” Id. DHS denied
Plaintiff's claim on June 24, 2015. (Doc. 107-2).
Thereafter, Plaintiff filed a Complaint with this Court
alleging negligence against Defendant U.S. under the Federal
Tort Claims Act (“FTCA”).
U.S. moved to dismiss several of the claims in the Complaint
on the grounds that Plaintiff did not exhaust his
administrative remedies for those claims. (Doc. 107) at 1.
Consequently, Defendant U.S. argues that the Court lacks
subject matter jurisdiction. Id.
Standard of Review
Rule 12(b)(1), a party may assert that a court lacks subject
matter jurisdiction over a claim. Fed.R.Civ.P. 12(b)(1). With
a failure to exhaust claim as the basis for a Rule 12(b)(1)
motion to dismiss, the Court can “consider evidence
beyond the pleadings in resolving a challenge to
subject-matter jurisdiction.” Id. at 1262 n.3
(quoting Jenkins v. Educ. Credit Mgmt. Corp., 212
Fed.Appx. 729, 733 (10th Cir. Jan. 4, 2007) (unpublished)).
United States may be sued for torts under the FTCA; however,
as a prerequisite for a suit, the claim must be presented to
the appropriate federal agency and be denied by the agency.
28 U.S.C. § 1346(b), Three-M Enters. v. United
States, 548 F.2d 293, 294 (10th Cir. 1977). “This
requirement is jurisdictional and cannot be waived.”
Id. 294-95 (citing Bialowas v. United
States, 443 F.2d 1047, 1049 (3d Cir. 1971)).
Specifically, a claimant must file “(1) a written
statement sufficiently describing the injury to enable the
agency to begin its own investigation, and (2) a sum certain
damages claim.” Cizek v. United States, 953
F.2d 1232, 1233 (10th Cir. 1992) (quoting Warren v.
United States Dep't of Interior Bureau of Land
Mgmt., 724 F.2d 776, 780 (9th Cir. 1984)). While a claim
“need not elaborate all possible causes of action or
theories of liability, ” the claim must be sufficiently
detailed to give “notice of the facts and circumstances
underlying a claim.” Estate of Trentadue v. United
States, 397 F.3d 840, 853 (10th Cir. 2005); Barnson
v. United States, 531 F.Supp. 614, 623 (D. Utah 1982).
Timeliness of Motion to Dismiss
May 10, 2017, hearing, Plaintiff argued that the Motion to
Dismiss was untimely as it was filed after the July 21, 2016,
deadline for dispositive motions, and so should be denied on
that basis. (Doc. 120) at 15:7-23. Defendant U.S.
acknowledged that it filed this Motion to Dismiss after the
dispositive motions deadline, but argued that the Court can
consider the Motion to Dismiss because subject matter
jurisdiction cannot be waived. (Doc. 107) at n.1.
courts have an independent duty to examine sua
sponte whether they have subject matter jurisdiction
over cases. See, e.g., U.S. ex rel. King v. Hillcrest
Health Ctr., Inc., 264 F.3d 1271, 1281-82 (10th Cir.
2001), cert. denied, 535 U.S. 905 (2002); 1mage
Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d
1044, 1048 (10th Cir. 2006). “If the court determines
at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
The government's Motion to Dismiss indeed was filed after
the dispositive motions deadline; however, the Court deems it
necessary to determine whether it has subject matter
jurisdiction to consider the claims in this case. Therefore,
the Court will decide the Motion to Dismiss on its merits.