Opinion
1:14-cv-1266-LJO-MJS
12-30-2015
JULIE KROGEN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
MEMORANDUM DECISION AND ORDER RE NOTICE OF DECISION BY DEPARTMENT OF LABOR (Doc. 37)
Plaintiff Julie Krogen ("Plaintiff") brings this action against Defendant the United States of America ("The Government") for the wrongful death of her husband under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671. On June 9, 2015, the Government moved to dismiss the case under Fed. R. Civ. Pro. 12(b)(1) on the basis that Plaintiff's claims are pre-empted by the Federal Employee Compensation Act ("FECA"), 5 U.S.C. §§ 8101(1)(B), 8116(c). Mot. to Dismiss, or in the Alternative, for Summ. J. ("MTD"), Doc. 25-1. On August 28, 2015, this Court found there was substantial question as to whether FECA applies and stayed the case pending a determination by the Secretary of Labor as to that issue. Doc. 33.
On December 23, 2015 the parties submitted a joint status report indicating that the Secretary had reached a decision that Plaintiff's claims are covered by FECA. Notice of Decision ("NOD"), Doc. 37. Accordingly, the parties requested that the stay in the case be lifted. Id. The Court agrees that it is appropriate to lift the stay.
In light of the Secretary's decision, it appears that Plaintiff's claims are entirely pre-empted by FECA. Accordingly, and for reasons outlined in the Court's previous order, it seems that the Court no longer retains subject matter jurisdiction over this case. Thus, the Court will dismiss this case with prejudice, unless Plaintiff can show cause as to why this should not be so.
CONCLUSION AND ORDER
For the reasons discussed above, the Court ORDERS the stay lifted in this case.
Plaintiff is ORDERED to show cause in writing why the Court should not dismiss the above captioned case. Plaintiff's brief on this issue is due within 14 days' of this order. The Government's response, if any, to Plaintiff's brief is due 7 days after Plaintiff has filed her brief or 21 days after this Order is filed, whichever is later.
Should Plaintiff wish not to file a brief on this issue, she must file a pleading entitled "matter submitted," at which point the Clerk of Court will be directed to close this case. IT IS SO ORDERED
Dated: December 30, 2015
/s/ Lawrence J. O'Neill
United States District Judge