Opinion
Cause No. 1:02-CV-98
June 14, 2002
ORDER
On March 20, 2002, Plaintiffs Herbert Vernon Thompson and Joie P. Thompson ("the Thompsons" or "Plaintiffs," collectively) filed a complaint against the defendants in this case, the United States Veterans' Administration ("VA"), Naveen Lal ("Lal"), Louis Lopez ("Lopez"), and Allen County Cardiology ("ACC"). The Thompsons allege that Defendants caused Herbert Thompson to suffer permanent and debilitating injuries by failing to treat him according to the prevailing medical standard of care. Plaintiffs also allege that Defendants' actions deprived Joie Thompson of the companionship of her husband, Herbert Thompson. Plaintiffs based jurisdiction in this Court on 28 U.S.C. § 1346 (claims against the United States) and on the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.
The VA moved to dismiss all of Plaintiffs' claims for lack of subject matter jurisdiction and personal jurisdiction on May 9, 2002. The VA correctly argued that this Court did not have subject matter jurisdiction over Plaintiffs' claims because Plaintiffs had failed to comply with the administrative requirements of 28 U.S.C. § 2675. It is well established that the United States is "immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that Court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941). A condition precedent to this Court exercising subject matter jurisdiction over a suit under the FTCA is a party's exhaustion of administrative remedies. Specifically, 28 U.S.C. § 2675(a) requires, before suit can be filed, that the submitted administrative claim either be denied or not acted upon within six months by the appropriate administrative agency. See generally Charlton v. United States, 743 F.2d 557, 559-60 (7th Cir. 1984); Erxleben v. United States, 668 F.2d 268, 271 (7th Cir. 1981); Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir. 1972).
Here, Plaintiffs have filed an administrative claim with the VA. However, Plaintiffs' administrative claim has neither been denied nor has six months passed without agency action since its filing. In the absence of compliance with the requirements of § 2675, this court lacks subject matter jurisdiction over Plaintiffs' claims.
In addition, this Court lacks personal jurisdiction over the United States due to insufficiency of the service of process. In an action brought under the FTCA, only the United States is a proper defendant for money damages. See 28 U.S.C. § 1346(b). Pursuant to Rule 4(i) of the Federal Rules of Civil Procedure, in order to effectively serve the United States or its agencies, plaintiffs must serve the United States Attorney for the district in which the action is brought, the Attorney General of the United States, and the implicated agency. Failure to properly serve the United States deprives this Court of personal jurisdiction over the United States. See Thompson v. Internal Revenue Service, 23 F. Supp.2d 923 (N.D. Ind. 1998); Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir. 1966). Here, plaintiffs have named only the VA as a defendant and have only served the VA. Accordingly, this Court lacks personal jurisdiction over the proper defendant, the United States.
On May 17, 2002, defendants Lal, Lopez, and the ACC moved to dismiss Plaintiffs' claims for lack of subject matter jurisdiction. Lal, Lopez, and the ACC correctly argued that the FTCA did not apply to them. The Seventh Circuit has stated:
The purpose of the [FTCA] is . . . to lift federal sovereign immunity in order that victims of torts committed by federal employees in the scope of their employment can sue the federal government under the doctrine of respondeat superior, just as if the government were a private employer enjoying no immunities. The theory (or perhaps one theory) underlying the doctrine of respondeat superior is that it gives the employer an incentive, perhaps greater than that created by liability simply for negligence, to use his control over the employee to prevent tortious misconduct.
Sullivan v. Freeman, 944 F.2d 334, 336 (7th Cir. 1991). Plaintiffs do not contest that Lal, Lopez, and the ACC had no employment relationship with the VA. As a result, they are not employees of the federal government; the FTCA does not apply to them; and no subject matter jurisdiction exists. Cf. Badger State Mut. Cas. Co. v. United States, 383 F. Supp. 1226 (E.D. Wis. 1974) (holding that FTCA does not apply to federal employee not acting within the scope of his employment).
In addition, Lal, Lopez, and the ACC argued that an action against a health care provider may not be commenced in a court in Indiana before the claimant's proposed complaint has been presented to a medical review panel and opinion is given by the Panel. See Ind. Code. § 34-18-8-4. In this case, Plaintiffs' complaint has not been presented to any medical review panel and no opinion has been rendered by any medical review panel. Therefore, this Court does not have jurisdiction over Plaintiffs' complaint.
Plaintiffs do not contest these motions to dismiss and concede that jurisdiction is not proper in this Court. As a result, both motions to dismiss are hereby GRANTED.
SO ORDERED