Agae v. U.S., No. CIV. 00-00099 SOM/LEK.

Citation125 F.Supp.2d 1243
Decision Date07 November 2000
Docket NumberNo. CIV. 00-00099 SOM/LEK.
PartiesAtilua AGAE, Jr.; Eddie Agae; Raymond Agae; Anna Stroup; Scott Agae; Wendy Agae; Julia Puletasi; Lafoai Leslie Brown; Alex Jones; David Jones; Helen Ann Breeding; Teiutaifeau P. Brown; Faalanu L. Brown; Poima Brown; Malaeoletalu Brown; Cindy Agae and Estate of Thelma Agae by Atilua Agae, Jr., Plaintiffs, v. UNITED STATES of America and Tripler Army Medical Center, Defendants.
CourtSupreme Court of Hawai'i

Denise H. Sangster, Honolulu, HI, Michael Jay Green, David J. Gierlach, Honlulu, HI, for plaintiffs.

R. Michael Burke, Assist. U.S. Atty., Honolulu, HI, for defendants.

ORDER GRANTING DEFENDANT UNITED STATES' MOTION TO DISMISS AS TO CERTAIN PLAINTIFFS AND CLAIMS

MOLLWAY, District Judge.

I. INTRODUCTION.

On December 30, 1996, Thelma Agae ("Mrs.Agae") committed suicide while being treated at Tripler Army Medical Center ("Tripler") for depression. Sixteen members of Mrs. Agae's family1 and the Estate of Thelma Agae by Atilua Agae, Jr. (collectively "Plaintiffs") sued Defendant United States of America ("United States") and Tripler under the Federal Tort Claims Act ("FTCA") for negligence.

The United States has moved to dismiss or, in the alternative, for summary judgment as to certain Plaintiffs and claims. Because twelve of the plaintiffs failed to exhaust their administrative remedies, the court GRANTS the United States' Motion with respect to those Plaintiffs. Because the Complaint failed to advance a claim for last illness and burial expenses, the Estate of Thelma Agae's wrongful death claim under Haw.Rev.Stat. § 663-3 is also DISMISSED to the extent that it was brought by the Estate.

II. BACKGROUND.

Atilua Agae, Jr. ("Mr.Agae"), took Mrs. Agae to Tripler on December 26, 1996, suspecting that she had swallowed bleach. See Thelma Agae In Patient Records, attached as Ex. A to United States' Concise Statement in Support of Defendant United States' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment as to Certain Plaintiffs and Claims ("USA Concise Statement").2 After her condition stabilized, Mrs. Agae was transferred to the Tripler Psychiatric Ward for additional observation and treatment. After attending an occupational therapy session on December 30, 1996, Mrs. Agae hung herself in the bathroom of her hospital room using the ties from her hospital robe. The following day, December 31, 1996, Mrs. Agae was pronounced dead.

On October 2, 1998, Mr. Agae, Anna Stroup, Julia Puletasi, Scott Agae, and Wendy Agae filed administrative claims with Tripler for wrongful death and for Mrs. Agae's pain and suffering. See Claim for Damage, Injury, or Death Forms, attached as Exhibit H to USA's Concise Statement. Each claimant asserted a claim for his or her own loss as well as a claim on behalf of the Estate of Mrs. Agae. See id.

Plaintiffs filed this action against the United States and Tripler under the FTCA on February 2, 2000. The suit names as Plaintiffs sixteen members of Mrs. Agae's family and the Estate of Thelma Agae by Atilua Agae, Jr.

The United States has moved to dismiss or, in the alternative, for summary judgment as to certain Plaintiffs and claims. The United States argues that: (1) eleven individual plaintiffs are barred from suit because they failed to file an administrative claim with the applicable federal agency within the two-year statute of limitations provided for in 28 U.S.C. § 2401(b); (2) the Estate of Thelma Agae ("Estate") is barred from pursuing a wrongful death claim under the Hawaii Wrongful Death Statute, Haw.Rev.Stat. § 663-3, because it failed to limit its claim for damages to last illness and burial costs; and (3) the survivorship claims brought by Atilua Agae, Jr., Scott Agae, Wendy Agae, Julia Puletasi, and Anna Stroup, on behalf of the Estate, are defective because they fail to comply with the requirements of 28 C.F.R. § 14.3(c) and Haw.Rev.Stat. § 663-7.

Plaintiffs concede that: (1) the United States is entitled to dismissal of claims by the eleven individual Plaintiffs who failed to file administrative claims; and (2) the Estate is not asserting a wrongful death claim. Plaintiffs do, however, dispute the dismissal of the survivorship claim brought on behalf of the Estate by Atilua Agae, Jr., Scott Agae, Wendy Agae, Julia Puletasi, and Anna Stroup under Haw.Rev.Stat. § 663-7.

III. STANDARD.

"The most natural reading of the [FTCA] indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process." McNeil v. United States, 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). Accordingly, exhaustion of administrative remedies is a jurisdictional prerequisite to the bringing of a claim under the FTCA. See 28 U.S.C. § 2675. Because the exhaustion of administrative remedies requirement is jurisdictional in nature, the court treats this motion as a motion to dismiss for lack of subject matter jurisdiction under Fed. R.Civ.P. 12(b)(1).

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may either attack the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction, or may attack the existence of subject matter jurisdiction in fact. Thornhill Publ'g Co., Inc. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979). When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Federation of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.1996). When the motion to dismiss is a factual attack on subject matter jurisdiction, however, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Thornhill, 594 F.2d at 733. The United States' motion is a factual attack on this court's subject matter jurisdiction. Accordingly, this court may accept and evaluate evidence to determine whether jurisdiction exists.

Plaintiffs have the burden of proving that jurisdiction does in fact exist. Thornhill, 594 F.2d at 733. Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss. Rosenbaum v. Syntex Corp., 95 F.3d 922, 926 (9th Cir.1996).

IV. ANALYSIS.
A. Eleven Individual Plaintiffs Failed to Timely File Administrative Claims.

The FTCA requires any injured or aggrieved party to exhaust all administrative remedies before filing suit in district court. See McNeil, 508 U.S. at 112, 113 S.Ct. 1980. In relevant part, 28 U.S.C. § 2675(a) provides:

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 decided by the agency in writing and sent by registered mail. The failure of an agency to make final disposition of the claim within six months after it is filed shall, at the option of the claimant at any time thereafter be deemed a final denial of the claim for purposes of this section.

28 U.S.C. § 2675(a) (emphasis added).

Failure to exhaust all administrative remedies within the applicable two-year statute of limitations permanently bars the filing of a tort claim in the district court:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate federal agency within two years after such a claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which is was presented.

28 U.S.C. § 2401(b).

Eleven individual Plaintiffs3 failed to submit administrative claims with Tripler. Plaintiffs do not dispute this fact. See Plaintiffs' Memorandum in Opposition to Defendant United States' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment as to Certain Plaintiffs and Claims ("Opposition Memorandum") at 4. Plaintiffs further "do not oppose dismissing these eleven [individual] Plaintiffs." See id. Accordingly, because Plaintiffs Malaeoletalu Brown, Poima Brown, Teiutaifeau Brown, Faalanu Brown, Helen Ann Breeding, Alex Jones, David Jones, Cindy Agae, Eddie Agae, Raymond Agae, and Lafoai Leslie Brown failed to exhaust their administrative remedies, the court GRANTS the United States' Motion to Dismiss with respect to these Plaintiffs.

B. The Estate's Wrongful Death Claim Fails to Comply With Haw.Rev. Stat. § 663-3.

In an action under Haw.Rev.Stat. § 663-3, the United States argues that the Estate is limited to expenses associated with last illness and burial. See Defendant United States' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment as to Certain Plaintiffs and Claims, at 18-19 (citing Wade v. United States, 745 F.Supp. 1573, 1576-77 (D.Haw.1990)). The United States asserts that Plaintiffs are therefore not entitled to maintain an action on behalf of the Estate for wrongful death because the Complaint failed to advance such a claim for last illness and burial. See id. Plaintiffs "do not dispute that this claim is disallowed." See Opposition Memorandum at 5. Accordingly, to the extent that the Estate has brought a wrongful death claim,4 it is DISMISSED.

C. The Estate's Survivorship Claim.

The sole remaining issue for this court is whether the Estate filed an administrative claim based on survivorship with Tripler and therefore exhausted its administrative remedies. The persons...

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