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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

SHANDRA FORSHA, 

 Plaintiff, 

 

 v. 

MIAMI VALLEY HOSPITAL, et al., 

 Defendants. 

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Case No. 1:17-cv-00750 

Judge Susan J. Dlott 

ORDER

This matter is before the Court on Defendant the United States of America’s Motion to 

Dismiss for Failure to Exhaust Administrative Remedies (Doc. 5) and Plaintiff’s Motion to 

Remand (Doc. 7). For the reasons that follow, the United States’ Motion will be GRANTED and 

this civil action will be REMANDED. 

I. BACKGROUND1

This civil action arises from medical care provided to Kevin J. Forsha at Miami Valley 

Hospital in April 2016. (Complaint, Doc. 3 at PageID 24–25 (¶¶ 10–22, 27).) Mr. Forsha later 

died, and his wife Shandra Forsha, individually and as personal representative of Mr. Forsha’s 

estate, sued the hospital and five other Defendants, including Aaron Joseph Schneider, M.D. (Id.

at PageID 21–22 (Caption; ¶¶ 1, 2).) She filed her Complaint in the Warren County, Ohio Court 

of Common Pleas on October 6, 2017. (Id. at PageID 21 (Caption).) 

On November 8, 2017, Defendant Schneider removed the case from Warren County to 

the Southern District of Ohio pursuant to 28 U.S.C. § 1442(a)(1). (Notice of Removal, Doc. 1.) 

In support, Dr. Schneider attached the Certificate of Scope of Employment completed by 

 

1

 Background facts are drawn from Plaintiff’s Complaint (Doc. 3) and the docket maintained by the Clerk of this 

Court. 

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Benjamin C. Glassman, the United States Attorney for the Southern District of Ohio, confirming 

that he was an employee of the United States Department of the Air Force (“USAF”) and acting 

within the scope of his federal employment with regard to the allegations made in Plaintiff’s 

Complaint. (Doc. 1-4.) On the same date, by operation of law, the United States of America 

was substituted as Defendant in place of Dr. Schneider. (Notice of Substitution of the United 

States of America for Aaron Joseph Schneider, M.D., Doc. 2.) 

Shortly thereafter, the United States filed the instant Motion to Dismiss for Failure to 

Exhaust Administrative Remedies. Because Plaintiff failed to first file an administrative tort 

claim, the United States argues that this Court lacks jurisdiction over the subject matter of 

Plaintiff’s wrongful death and survivorship causes of action that comprise the entirety of the 

Complaint. Thus, they should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). 

Through counsel, Plaintiff concedes that she has “no factual or legal argument to present 

to oppose” the United States’ Motion. (Doc. 7 at PageID 40.) Instead, she asks the Court to 

remand the “remaining” case back to Warren County. (Id.) 

II. ANALYSIS 

A. The United States’ Motion to Dismiss 

Rule 12(b)(1) authorizes dismissal of a claim when a court lacks jurisdiction over its 

subject matter. See Fed. R. Civ. P. 12(b)(1). It is the plaintiff’s burden to prove jurisdiction “in 

order to survive [such a] motion.” See Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d

266, 269 (6th Cir. 1990) (citing Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 

1986)). If necessary, a court “may look beyond the jurisdictional allegations in the complaint 

and consider submitted evidence.” Taylor v. KeyCorp, 680 F.3d 609, 612 (6th Cir. 2012). 

The Federal Tort Claims Act, 28 U.S.C. § 2675(a), reads in pertinent part: 

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

damages for injury or loss of property or personal injury or death 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 

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

registered mail. . . . 

Before Plaintiff can sue the United States in tort, therefore, she must exhaust her federal 

administrative remedy. “The administrative claim procedure prescribed in 28 U.S.C. § 2675 is 

jurisdictional.” Schaefer v. Hills, 416 F. Supp. 428, 429 (S.D. Ohio 1976); Walls v. United 

States, No. 1:07-CV-674, 2007 WL 4365413, at *1 (S.D. Ohio Dec. 11, 2007); see Roberts v. 

United States, 191 F. App’x 338, 344 (6th Cir. 2006). 

 In support of its Motion, the United States has filed the Declaration of Patrick J. Wells, 

Colonel, United States Air Force, who serves as the Chief of the Claims & Tort Litigation 

Division of the Air Force Legal Operations Agency. (Doc. 5-1.) Colonel Wells avers that he has 

searched the relevant records and has determined that “no tort claim has ever been submitted to 

the Air Force by either SHANDRA FORSHA or KEVIN FORSHA.” (Id. at PageID 36–37.) 

The Court finds that Plaintiff has not complied with the administrative exhaustion 

requirement of § 2675(a). Absent such compliance, the Court lacks subject matter jurisdiction 

over the wrongful death and survivorship causes of action she asserts against the United States. 

Therefore, the United States will be dismissed from the Complaint. 

B. Plaintiff’s Motion to Remand 

In the event the Court grants the United States’ Motion to Dismiss, Plaintiff asks the 

Court to “exercise its discretionary power to aid in the administration of justice” and remand the 

case back to Warren County. (Doc. 7 at PageID 40–41 (citing Carnegie-Mellon Univ. v. Cohill, 

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484 U.S. 343 (1988).) Under the circumstances here, however, remand is not discretionary, but, 

rather, required. 

This civil action—sounding in common law tort— properly was removed to the Southern 

District of Ohio because Plaintiff sued, among others, an officer in the United States Air Force. 

Following removal, the United States properly was substituted for that officer because he was 

acting in the scope of his duties with respect to the events about which Plaintiff complains. And, 

because Plaintiff failed to exhaust her administrative remedies as required by the Federal Tort 

Claims Act, the United States properly was dismissed from her Complaint. Now, however, 

subject matter jurisdiction is lacking in this Court, inasmuch as the dispute that remains is 

between citizens of the same state. 

“If at any time before final judgment it appears that the district court lacks subject matter 

jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c) (emphasis added); see Page v. 

City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995) (“[T]he court can, in fact must, dismiss a 

case when it determines that it lacks subject matter jurisdiction, whether or not a party has filed a 

motion.”). With the United States dismissed from the Complaint, the Court lacks subject matter 

jurisdiction to preside over an action in tort between citizens of the same state. Remand is 

obligatory. 

III. CONCLUSION 

 For the reasons set forth above, Defendant United States of America’s Motion to Dismiss 

for Failure to Exhaust Administrative Remedies (Doc. 5) is GRANTED and the Complaint 

against the United States is DISMISSED WITHOUT PREJUDICE. And, pursuant to 28 

U.S.C. § 1447(c), the Clerk is ORDERED to REMAND this civil action to the Warren County, 

Ohio Court of Common Pleas.

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IT IS SO ORDERED. 

 Dated: December 7, 2017 S/Susan J. Dlott_________________ 

 Judge Susan J. Dlott 

 United States District Court 

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