UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ROBYN SMITH, Administrator 

of the Estate of Joseph J. Smith, III 

 Plaintiff, 

v. Case No.: 2:18-cv-00819 

 JUDGE GEORGE C. SMITH 

 Magistrate Judge Deavers 

JOHN D. BALUCH, et al., 

 Defendants. 

OPINION AND ORDER 

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

for Lack of Subject Matter Jurisdiction (Doc. 4). Plaintiff responded in agreement (Doc. 10). For 

the following reasons, the Defendant’s Motion is GRANTED. 

This action was brought by Plaintiff Robyn Smith, on her own behalf and as Administrator 

of the Estate of Joseph J. Smith, III. (Doc. 3, Compl. at ¶ 4). The Complaint alleges that 

Defendants (several medical providers including Hopewell Health Clinic, Inc., Hopewell’s 

Chillicothe Primary Health Care Clinic, and Hopewell’s employee Dr. Crawford) were negligent 

in failing to timely diagnosis Mr. Smith’s prostate cancer and that their actions fell below the 

requisite standard of care. (Id. at ¶¶ 7, 8, 10, 37). Mr. Smith died on April 5, 2018. (Id. at ¶ 1). 

This action was initially brought in State Court and was later removed to Federal Court on August 

9, 2018. (See id.). “Two days after Smith brought her state court action, she filed an administrative 

tort claim with the United States Department of Health and Human Services.” (Doc. 4, Mot. to 

Dismiss at 3). 
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Defendant United States of America argues that the action against it should be dismissed 

pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc. 

4, Mot. to Dismiss at 1). The United States argues that Plaintiff has failed to exhaust administrative 

remedies available under the Federal Tort Claims Act, which is required for this Court to have 

subject matter jurisdiction. (Id.). The Federal Tort Claims Act “is the exclusive remedy for 

personal injury or death caused by employees of the Public Health Service acting in the scope of 

their employment at the time of the alleged malpractice.” (Id. at 4). The claim must be presented 

to the federal agency—in this instance, the Department of Health and Human Services—and the 

agency must dispose of the claim before judicial action can be taken. (Id. at 3, 5). Plaintiff “agrees 

that the Court lacks subject matter jurisdiction until all administrative remedies have been 

exhausted.” (Doc. 12, Resp. at 2). Furthermore, “Plaintiff’s counsel has communicated with 

Defendant United States’ Counsel and agrees that a dismissal is appropriate, only against the 

United States.” (Id.) “Plaintiff and the United States agree that the Court should order dismissal 

of this case pursuant to Civ. R. 41(a)(2), other than on the merits, and remand this case back to 

State Court . . . .” Id. 

Rule 41(a)(2) states that “an action may be dismissed at the plaintiff’s request only by court 

order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). “Unless the order states 

otherwise, a dismissal under this paragraph (2) is without prejudice.” Id. As both parties are in 

agreement regarding dismissal of the action against Defendant United States of America, the Court 

finds dismissal to be proper in light of the fact that administrative remedies required under the 

Federal Tort Claims Act have not been exhausted. “The FTCA bars claimants from bringing suit 

in federal court until they have exhausted their administrative remedies.” McNeil v. United States, 

508 U.S. 106, 113 (1993). Plaintiff admits that administrative remedies have not been exhausted 
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and therefore dismissal of all claims against the United States is appropriate as the Court lacks 

subject matter jurisdiction. 

Furthermore, the Court shall remand this case back to state court as Plaintiff has state law 

claims against the remaining Defendants that she intends to pursue. (Doc. 12, Resp. at 2). “If at 

any time before final judgment it appears that the court lacks subject matter jurisdiction, the case 

shall be remanded.” 28 U.S.C. § 1447(c). “A district court may remand sua sponte for lack of 

subject matter jurisdiction...” Anthony Marano Co. v. Sherman, 925 F.Supp.2d 864, 865 (E.D. 

Mich. 2013). This Court lacks subject matter jurisdiction due to Plaintiff’s failure to exhaust 

administrative remedies, therefore this action shall be remanded. 

Based on the foregoing, Defendant’s Motion to Dismiss for Lack of Subject Matter 

Jurisdiction is GRANTED. This action is to be REMANDED to state court for further 

proceedings. 

The Clerk shall REMOVE Document 4 from the Court’s pending motions list. The Clerk 

shall REMOVE this case from the Court’s pending cases list. 

IT IS SO ORDERED. 

__/s/ George C. Smith ___

GEORGE C. SMITH, JUDGE 

UNITED STATES DISTRICT COURT