United States District Court, S.D. Georgia, Savannah Division
STAN BAKER UNITED STATES DISTRICT JUDGE.
Federal Tort Claims Act lawsuit comes before the Court on
Defendant United States of America's Motion to Dismiss,
(doc. 10), and Plaintiffs Jarred and Heather Lee's
Request for Oral Argument, (doc. 18). Plaintiffs filed a Response
in Opposition to Defendant's Motion, (doc. 15), and
Defendant filed a Reply, (doc. 17). This case arises out of a
motor vehicle collision between Plaintiff Jarred Micah
Lee's vehicle and a military service vehicle on a public
highway on the Fort Stewart military reservation. The parties
dispute whether the Feres doctrine precludes the
Court from exercising jurisdiction over Plaintiffs'
claims. Defendant has failed to establish that the collision
arose out of or occurred in the course of activity incident
to Mr. Lee's military service. Thus, Mr. Lee's claims
survive Defendant's Motion. However, Plaintiff Heather
Lee failed to timely exhaust her administrative remedies
prior to filing this lawsuit, and, therefore, the Court lacks
jurisdiction over her claims.
these reasons, which the Court explains more fully below, the
Court GRANTS in part and DENIES in part
Defendant's Motion to Dismiss, (doc. 10). The Court
DISMISSES all claims of Plaintiff Heather
Lee for failure to exhaust and DIRECTS the
Clerk of Court to terminate her as a party to this case. The
Court also DENIES Plaintiffs' Request
for Oral Argument, (doc. 18).
Jarred Micah Lee (at times “Mr. Lee”), and his
wife, Plaintiff Heather Lynn Lee (at times “Mrs.
Lee”), filed this action against the United States
requesting damages incident to injuries that Mr. Lee
sustained in a collision with a military vehicle. (Doc. 1,
pp. 1-4.) Mr. Lee is a former Specialist in the United States
Army and, at all times relevant to this action, Mr. Lee was
on active duty at Fort Stewart Military Reservation
(“Fort Stewart”) where he resided with his wife
and minor son. (Id.) On the weekend of the accident,
Mr. Lee had what is known as a “pass.”
(Id. at p. 4.) Passes are “short,
non-chargeable, authorized absence[s] from post or place of
duty during normal off duty hours.” (Doc. 17-1, p. 1.)
Mr. Lee had a “weekend pass” and was not expected
to report for duty at Fort Stewart until Monday morning,
April 25, 2016. (Doc. 1, p. 4.)
utilized his weekend pass on Saturday, April 23, 2016, when
he left Fort Stewart in his personal vehicle to have dinner
with his son. (Id.) On the drive home, Mr. Lee and
his son traveled on Georgia Highway 144 East, a public
highway which traverses Fort Stewart. (Id.) As Mr.
Lee's vehicle approached the intersection of 144 East and
Fort Stewart Road 58B, it collided with a military
tractor-trailer driven by an active duty United States
Marine. (Id. at pp. 3-4.) Mr. Lee sustained
significant injuries in the accident and was subsequently
medically discharged from the Army. (Doc. 10-1, pp. 1-2.)
filed this action on March 16, 2018, pursuant to the Federal
Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et
seq. (“FTCA”), alleging negligence,
vicarious liability, and loss of consortium. (Doc. 1.) On May
22, 2018, Defendant filed the instant Motion to Dismiss,
claiming the Court lacks subject matter jurisdiction over the
claims of both Mr. and Mrs. Lee. (Doc. 10.) Defendant
contends that any claims asserted by Mrs. Lee must be
dismissed because she failed to exhaust her administrative
remedies as required under the FTCA. (Doc. 10-1, p. 4.) As to
Mr. Lee's claims, Defendant urges that such claims are
barred by the Feres doctrine, which is described in
detail below. (Id. at p. 6.) In their Response,
Plaintiffs address Defendant's arguments regarding Mr.
Lee's claims and aver that the case is properly before
the Court. (Doc. 15.)
may dismiss a complaint when it lacks subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
Motions pursuant to Rule 12(b)(1) take one of two forms: a
“facial attack” on subject matter jurisdiction
based on the complaint's allegations taken as true or a
“factual attack” based on evidentiary matters
outside of the pleadings. McElmurray v. Consol. Gov't
of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.
2007) (citing Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990)). In the “factual attack”
context, the court considers whether subject matter
jurisdiction tangibly exists in fact, irrespective of the
complaint's allegations. Id. When faced with
such a challenge to subject matter jurisdiction, a plaintiff
has the burden to prove facts which show jurisdiction exists
over its claims. OSI, Inc. v. United States, 285
F.3d 947, 951 (11th Cir. 2002) (citations omitted).
resolve a factual attack, a court “may consider
extrinsic evidence such as testimony and affidavits, ”
rather than being constrained to the allegations in the
complaint. Morrison v. Amway Corp., 323 F.3d 920,
924 n.5 (11th Cir. 2003) (citation omitted). Courts are
“free to weigh the facts, ” subject to clearly
erroneous review, without viewing them in the light most
favorable to the plaintiffs. Carmichael v. Kellogg, Brown
& Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir.
2009). In deciding a fact-based motion to dismiss for lack of
subject matter jurisdiction, a court may dismiss on the basis
of (1) “the complaint supplemented by undisputed facts
evidenced in the record” or (2) “the complaint
supplemented by undisputed facts plus the court's
resolution of disputed facts.” Williamson v.
Tucker, 645 F.2d 404, 412 (5th Cir. 1981).And while
plaintiffs are entitled to a reasonable opportunity for
discovery and a hearing on this issue, courts are empowered
to decide factual motions on affidavits alone, where
appropriate, so long as its factual determinations are
identified and explained. Id. at 413-14 (citations
omitted); see also Fed.R.Civ.P. 43(c) (“[T]he
court may hear [a motion] on affidavits or may hear it wholly
or partly on oral testimony or depositions.”).
Furthermore, courts are to “use their judicial
experience and common sense in determining whether” a
case meets federal jurisdictional requirements. Roe v.
Michelin N. Am., Inc., 613 F.3d 1058, 1062 & n.5
(11th Cir. 2010) (citations omitted).
Dismissal of Plaintiff Mrs. Lee's Claims for Failure to
Exhaust Administrative Remedies
contends that any claims brought by Mrs. Lee should be
dismissed because she did not exhaust her administrative
remedies as required by the FTCA, 28 U.S.C. §
2675(a). (Doc. 10-1, pp. 4-6.) Plaintiffs did not
address this argument but did note that the dismissal of Mrs.
Lee's claims should not impact any claims brought by Mr.
Lee. (Doc. 15-1, p. 3.)
to Plaintiffs' Complaint, this action and all claims
contained therein were brought pursuant to the FTCA. (Doc. 1,
p. 1.) However, a federal court may not exercise jurisdiction
over an FTCA suit unless the claimant first files an
administrative claim with the appropriate agency within two
years from the time the claim accrues. 28 U.S.C. §
2675(a). A tort claim under the FTCA “accrues” at
the time of the relevant injury-here, Mr. Lee's accident
on April 23, 2016. Cruz v. United States, 522
Fed.Appx. 635, 637 (11th. Cir. 2013). Defendant put forth
undisputed evidence showing that, as of May 15, 2018, Mrs.
Lee had not filed an administrative claim. (Doc. 10-4.)
Because Mrs. Lee did not satisfy the statutory prerequisites
for a claim brought under the FTCA, the Court lacks