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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MELISSA ANNE CARNEY, *

 *

Plaintiff, *

 *

vs. * CIVIL ACTION NO. 14-00497-CG-B

 * 

UNITED STATES OF AMERICA, *

*

Defendant. *

REPORT AND RECOMMENDATION

This case is before the Court on the United States of 

America’s Motion to Dismiss (Doc. 6) and Plaintiff’s response in 

opposition (Doc. 9). The motion has been fully briefed and has

been referred to the undersigned Magistrate Judge for entry of a 

Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)

and Local Rule 72.2(c). Having carefully reviewed the motion, 

the briefs in support of and in opposition to the motion, and 

the pleadings filed in this matter, the undersigned, for the 

reasons stated herein, RECOMMENDS that the motion be GRANTED, 

and that Plaintiff’s Complaint be dismissed.

I. Background Facts

Plaintiff Melissa Anne Carney commenced this action against 

the United States of America (hereinafter “United States”) on 

October 27, 2014. 1 (Doc. 1). In the complaint, Plaintiff 

 

1 According to the complaint, Plaintiff initially filed her 

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alleges that on February 12, 2011, Jamie Leigh Stewart Wright, 

while delivering mail on behalf of the United States Postal 

Service, negligently caused the vehicle she was operating to 

collide into a vehicle occupied by Plaintiff. (Id.). Pending 

before the Court is the United States’ Motion to Dismiss (Doc. 

6). In the motion, filed pursuant to Rule 12(b)(1) and Rule 

12(b)(6) of the Federal Rules of Civil Procedure, the Government 

alleges that this court lacks jurisdiction because Plaintiff 

does not allege that she ever filed an administrative claim with 

the proper agency of the United States. In support of its 

motion, the Government has attached the declaration of Kimberly 

A. Herbst, Supervisor, Tort Claims Examiner/Adjudicator with the 

United States Postal Service National Tort Center, St. Louis 

General Law Office. (Doc. 6- 2). In her declaration, Ms. Herbst 

asserts that she has conducted a search of all Postal Law 

Service Law Department records of administrative tort claims, 

and did not find an administrative claim submitted by or on 

behalf of Plaintiff Melissa Anne Carney. (Id.).

In response, Plaintiff’s counsel acknowledges that no 

 

complaint in state court against Jamie Leigh Stewart Wright on 

June 26, 2011; however, the case was transferred to this Court 

after Judge Robert Williams ruled that Wright was acting in her 

capacity as a federal employee at the time of the accident and 

as a result, Plaintiff’s remedy was against the United States 

pursuant to the Federal Torts Claim Act. (Doc. 1 at 1-2).

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administrative claim was timely made before Plaintiff’s 

complaint was filed and asserts that on January 8, 2015, a claim 

for Plaintiff was properly filed on the Standard Form 95 Claim 

for Damage, Injury or Death with the Postal Service. (Doc. 9.) 

According to Plaintiff’s counsel, “Plaintiff expects that the 

United States of America will waive sovereign immunity in this 

matter in order that the Plaintiff may pursue her case in the 

United States District Court.” (Id.) The Government, in its 

reply, asserts that the belated filing of Plaintiff’s claim form 

does not save this action from dismissal because this Court 

lacks jurisdiction. (Doc. 11).

II. LEGAL STANDARDS

As noted supra, the United States brings this motion 

pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules

of Civil Procedure. A motion to dismiss pursuant to Rule 

12(b)(1) for lack of subject matter jurisdiction can be based on 

either a facial or factual challenge to the complaint. Lawrence 

v. Dunbar, 919 F. 2d 1525, 1529 (11th Cir. 1990)(citation 

omitted). A “facial attack” “require[s] the court merely to 

look and see if [the] plaintiff has sufficiently alleged a basis 

of subject matter jurisdiction, and the allegations in the 

complaint are taken as true for the purposes of the motion.” 

(Id.) “‘Factual attacks’ on the other hand, challenge ‘the 

existence of subject matter jurisdiction in fact, irrespective 

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of the pleadings, and matters outside the pleadings, such as 

testimony and affidavits, are considered.’” (Id.) The Court 

construes the Government’s Rule 12(b)(1) argument as a facial 

challenge because the Government contends that Plaintiff has 

failed to allege that she exhausted her administrative remedies, 

and Plaintiff acknowledges that she did not submit a claim to 

the appropriate Government agency prior to filing the instant 

action. 

A Rule 12(b)(6) motion to dismiss for failure to state a 

claim questions the legal sufficiency of a complaint (or 

portions of a complaint); therefore, in assessing the merits of 

a Rule 12(b)(6) motion, the Court must assume that all factual 

allegations set forth in the complaint are true, and all factual 

allegations are construed in the light most favorable to the 

plaintiff. 

III. DISCUSSION

It is well established that the United States is immune 

from suit unless it has consented to be sued, and its consent to 

be sued defines the terms and conditions upon which it may be 

sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 

1349, 63 L.Ed.2d 607 (1980). The Federal Torts Claims Act 

(“FTCA”) provides that the United States may be held liable 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 

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the scope of his office or employment” in the same manner and to 

the same extent as a private person under like circumstances. 

28 U.S.C. § 1346(b)(1); see also Turner ex rel. Turner v. United 

States, 514 F.3d 1194, 1203 (11th Cir. 2008). Thus, the “FTCA 

is a specific, congressional exception” to the United States’

sovereign immunity. Suarez v. United States, 22 F.3d 1064, 1065 

(11th Cir. 1994). As such, the waiver of sovereign immunity 

permitted under the FTCA “must be scrupulously observed, and not 

expanded, by the courts.” Id.

The FTCA’s waiver of sovereign immunity is a “limited 

waiver of the United States’ sovereign immunity for tort claims” 

allowing “certain parties” to sue the government “under certain 

circumstances.” Dalrymple v. United States, 460 F.3d 1318, 1324 

(11th Cir. 2006) (internal quotations omitted). As such, before 

instituting an action under the FTCA, a claimant must first 

exhaust the required administrative remedies. McNeil v. United 

States, 508 U.S. 106, 107, 113, 113 S. Ct. 1980, 124 L.Ed.2d 21 

(1993); see also Turner, 514 F.3d at 1200. To exhaust, the 

claimant must first file an administrative claim with the 

appropriate agency within two years from the time the claim 

accrues and include a claim for money damages in a sum certain. 

Dalrymple, 460 F. 3d 1324. If a party files suit in a district 

court before filing an administrative claim and exhausting the 

statutory administrative remedies, the suit will be premature 

and the district court will lack subject matter jurisdiction 

over the action. McNeil, 508 U.S. at 113, 113 S. Ct. 1980 

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(“[t]he FTCA bars claimants from bringing suits in federal court 

until they have exhausted their administrative remedies”); 

Turner, 514 F.3d at 1200. Requiring a claimant to file a claim 

that includes a sum certain serves to inform the Government of

the maximum amount of a claim, and affords the Government an 

opportunity to evaluate whether to settle a claim or proceed to 

trial. Turner, id. Thus, before a federal court can exercise 

jurisdiction over an FTCA suit, the plaintiff must first file a 

timely administrative claim with the appropriate agency and then 

allow that claim to be denied or wait until at least six months 

have passed after the claim was filed. Id. (citing 28 U.S.C. § 

2675(a)). “[T]he failure to adequately allege exhaustion in the 

complaint is grounds for dismissal for lack of subject matter 

jurisdiction.” Chapman v. United States Postal Serv., 442 Fed.

Appx. 480, 485 (11th Cir. 2011) (citing Dalrymple, 460 F.3d at 

1324–26), cert. denied, _ U.S. _, 132 S. Ct. 1624, 182 L. Ed. 2d 

194 (2012).

In this action, Plaintiff acknowledges that she did not 

exhaust her administrative remedies before filing her lawsuit in 

this Court. While she asserts that she recently, on January 8, 

2015, submitted the requisite form to the Postal Service, her 

belated action does not change the fact her failure to exhaust 

prior to filing suit deprives this Court of jurisdiction. See

Turner, 514 F.3d at 1200 (“Because ‘[t]he FTCA bars claimants 

from bringing suit in federal court until they have exhausted 

their administrative remedies,’ the district court lacks subject 

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matter jurisdiction over prematurely filed suits”)(citation 

omitted). Accordingly, this action should be dismissed for 

lack of subject matter jurisdiction.

IV. CONCLUSION

For the reasons set forth herein, the undersigned 

RECOMMENDS that the United States’ Motion to Dismiss (Doc. 6) be 

GRANTED, and that this case be dismissed.

Notice of Right to File Objections

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who

objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. ALA. L. R. 72.4. 

In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 28th day of January, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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