UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

JAMES EADES,

Plaintiff,

v. Case No. 14-13092

UNITED STATES OF AMERICA,

Defendant.

/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 

AND DISMISSING THE CASE WITHOUT PREJUDICE

On March 28, 2014, Plaintiff filed a tort action in the 36th District Court for the

State of Michigan against Stephan A. Webber, alleging that Plaintiff’s vehicle was hit

from behind due to a traffic light that was not working. (Dkt. # 1, Pg. ID 7.) Webber was

an employee of the United States acting within the scope of his employment at the time

of the alleged conduct. (Dkt. # 1, Pg. ID 5.) On August 12, 2014. The government

removed the case to this court (Dkt. # 1, Pg. ID 1) and filed a notice of substitution as

defendant. (Dkt. # 2, Pg. ID 8.) The court issued an order substituting the government

as defendant and dismissing Webber as a party on August 19, 2014. (Dkt. # 3, Pg. ID

12.)

On August 19, 2014, the government filed a Rule 12(b)(1) motion to dismiss for

lack fo subject matter jurisdiction on the ground that Plaintiff James Eades had not

exhausted the administrative remedies required under 28 U.S.C. § 2675(a). Under the

briefing schedule imposed by the court’s September 1, 2014 Notice of Determination of

Motion Without Oral Argument, the deadline for Plaintiff to file a response in opposition

to the government’s motion was September 19, 2014. (Dkt. # 5, Pg. ID 29.) Plaintiff

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failed to file a response by the deadline, nor did he seek an extension from the court. 

For the reasons stated below, the motion to dismiss will be granted.

I. STANDARD

“Where subject matter jurisdiction is challenged pursuant to 12(b)(1), the plaintiff

has the burden of proving jurisdiction in order to survive the motion.” Moir v. Greater

Cleveland Reg’l Transit Authority, 895 F.2d 266, 269 (6th Cir. 1990); see also Beil v.

Lake Erie Corr. Records Dept., 282 F. App’x 363, 365 (6th Cir. 2008 (same). To survive

a motion to dismiss for lack of subject matter jurisdiction, a plaintiff asserting a claim

against the United States must identify a waiver of sovereign immunity. Reetz v. United

States, 224 F.3d 794, 795 (6th Cir. 2000). 

II. DISCUSSION

Plaintiff has failed to carry his burden of identifying a statutory provision that

waives the government’s sovereign immunity from the instant action. Furthermore,

Plaintiff has not shown that he has exhausted his administrative remedies under the

Fedearl Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680. “The government

has waived its sovereign immunity to suits for tort actions under the FTCA, but only

insofar as the plaintiff has exhausted his administrative remedies.” Blakely v. United

States, 276 F.3d 853, 864 (6th Cir. 2002); see McNeil v. United States, 508 U.S. 106,

113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have

exhausted their administrative remedies.”). The FTCA provides: 

An action shall not be instituted upon a claim against the United States for

money damages for injury or loss of property . . . caused by the negligent or

wrongful act or omission of any employee of the Government while acting

within the scope of his office or employment, unless the claimant shall have

first presented the claim to the appropriate Federal agency and his claim

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shall have been finally denied by the agency in writing and sent by certified

or registered mail.

28 U.S.C. § 2675(a) (emphasis added). 

The government asserts that Plaintiff filed an administrative claim with the

appropriate administrative agency on or about July 18, 2014, but the agency has not yet

decided whether or not to deny plaintiff’s claim. (Dkt. # 4, Pg. ID 20-21.) Plaintiff has

failed to respond to the government’s motion to dismiss demonstrating that he

exhausted his administrative remedies before instituting the instant claim. Accordingly,

Plaintiff has not shown that the United States waived its sovereign immunity as to

Plaintiff’s claim, and the court will dismiss the complaint for lack of subject matter

jurisdiction.

III. CONCLUSION

IT IS ORDERED that Defendant’s motion to dismiss (Dkt. # 4) is GRANTED. 

IT IS FURTHER ORDERED that Plaintiff James Eades’ complaint is DISMISSED

WITHOUT PREJUDICE.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: October 13, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, October 13, 2014, by electronic and/or ordinary mail.

 s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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