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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RAWLAND JOHNSON and KANDY

JOHNSON, husband and wife and the marital

community comprised thereof,

Plaintiffs,

v.

UNITED STATES OF AMERICA, 

Defendant.

Case No. C06-5258 RJB

ORDER GRANTING UNITED

STATES’ SECOND MOTION TO

DISMISS FOR LACK OF SUBJECT

MATTER JURISDICTION

This matter comes before the Court on the United States’ Second Motion to Dismiss for Lack

of Subject Matter Jurisdiction (Dkt. 32). The Court has considered the pleadings filed in support of

and in opposition to the motion and the file herein.

I. BACKGROUND AND DISCUSSION

This case stems from an automobile accident that occurred on September 30, 2003. At the

time, Joshua Rambo was a combat engineer for the United States Army and worked for Staff Sergeant

Shane Grantham as a driver. Dkt. 33-2, Exh. A at 3. Specialist Rambo was loading vehicles with gear

to be shipped to Iraq in preparation for deployment to Operation Iraqi Freedom. Id. at 3-4. Staff

Sergeant Grantham ordered Specialist Rambo to retrieve a box of power tools from the company

office. Id. at 6. According to Staff Sergeant Grantham, Specialist Rambo was the only person at the

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ORDER

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time with a personal vehicle. Id. Staff Sergeant Grantham knew that Specialist Rambo would have to

use a personal vehicle to carry out this order and that there were no military vehicles available. Id. On

his way back from getting the power tools, Specialist Rambo was involved in a collision with a vehicle

in which plaintiff Kandy Johnson was a passenger. Specialist Rambo was in uniform at the time of the

accident. Dkt. 33-2, Exh. B at 9.

Ms. Johnson and her husband, Rawland Johnson, filed a complaint in state court alleging that

Specialist Rambo was negligent. Dkt. 1 at 2. The United States, on behalf of the defendants, removed

the case to federal court. Id. at 1. 

On June 15, 2006, the defendants filed a motion to dismiss on the grounds that the Court

lacked subject matter jurisdiction. The defendants maintained that the United States was the sole

defendant, that the Federal Tort Claims Act applied and required that an administrative claim be filed

within two years, and that the plaintiffs failed to file such a claim. Dkt. 6. The plaintiffs moved to

compel discovery on the issue of the Westfall certification. Dkt. 7, 8. 

The Court held that the motion to dismiss was premature because the United States was not

yet a defendant and granted the motion to compel discovery limited to the issue of whether Mr.

Rambo was acting within the scope of his employment at the time of the accident. Dkt. 15. 

As invited by the Court, the United States moved for substitution as defendant. Dkt. 23-1.

Guided by the parties’ discovery plan, which provided for discovery into the merits of the Westfall

certification only after the Court ruled on the motion to substitute, the Court granted the motion. Dkt.

31. 

The United States now moves, for a second time, to dismiss for lack of subject matter

jurisdiction on the grounds that the plaintiffs failed to file an administrative claim with the United

States Army. Dkt. 32-1. No challenge to the Westfall certification has been filed. In the response, the

plaintiffs concede that they failed to file an administrative claim and that dismissal of this action is

proper. Dkt. 34 at 1. The Court should therefore grant the motion and dismiss the case. 

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II. ORDER

Therefore, it is hereby

ORDERED that United States’ Second Motion to Dismiss for Lack of Subject Matter

Jurisdiction (Dkt. 32) is GRANTED, and this case is DISMISSED WITHOUT PREJUDICE.

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel of

record and to any party appearing pro se at said party’s last known address.

DATED this 22th day of January, 2007.

ARobert J. Bryan

United States District Judge 

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