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Lee v. City of Gallup

United States District Court, D. New Mexico

May 26, 2017

DARRELL H. LEE, as Personal Representative of HAROLD LEE, Deceased Plaintiff,
v.
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,
v.
UNITED STATES OF AMERICA, Defendant

          MEMORANDUM OPINION AND ORDER

         This 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).

         On May 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).[1] This Memorandum Opinion and Order more fully explains the Court's decision.

         I. Background

         This 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][2] 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”).

         Defendant 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.

         II. Standard of Review

         Under 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)).

         The 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).

         III. Timeliness of Motion to Dismiss

         At the 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.

         District 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.

         IV. ...


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