UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
RONALD J. JACKSON, )
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Plaintiff, )
)
v. ) Civil Action No. 09-868 (RBW)
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GMAC, INSURANCE et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
In this tort action removed by the federal defendant from the Superior Court of the
District of Columbia, the plaintiff sues the Veterans Administration Medical Center (“VAMC”),
GMAC Insurance (“GMAC”) and a law firm, Avery & Associates (“Avery”), for their alleged
actions stemming from the plaintiff’s traffic accident.1 He seeks $120,000 in monetary relief.
The VAMC moves to dismiss pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules
of Civil Procedure or for summary judgment pursuant to Rule 56 [Dkt. No. 11], and GMAC and
Avery move separately to quash service of process and to dismiss pursuant to Rules 12 and 17
[Dkt. Nos. 3 & 6, respectively]. In addition, the plaintiff moves for remand of the case to
Superior Court [Dkt. No. 7]. Upon consideration of the parties’ submissions and the entire
record, the Court will grant the VAMC’s Rule 12(b)(1) motion to dismiss. As to the surviving
claims against Avery and GMAC, the Court will grant the plaintiff’s motion to remand, which
neither Avery nor GMAC has opposed, and will leave for the Superior Court’s resolution these
defendants’ motions to quash the summonses issued by that court and to dismiss the complaint.
1
Because the VAMC is a federal entity, see Notice of Removal [Dkt. No. 1] at 2, the
plaintiff’s claim against it is in effect against the United States. See Kentucky v. Graham, 473
U.S. 159, 166 (1985); Mason v. Judges of U.S. Court of Appeals for D.C. Cir. in Regular Active
Serv. Acting in Their Official Capacities, 952 F.2d 423, 425 (D.C. Cir. 1991).
I. BACKGROUND
The plaintiff alleges that on May 29, 2006, in the northwest quadrant of the District of
Columbia, a woman driving a vehicle hit the rear of the motor scooter he was driving, causing
him to suffer “broken bones in his back and other injuries on the right and left sides of his
body[.]” Complaint (“Compl.”) at 3. The plaintiff “was admitted and treated at the Veterans
Hospital” on the afternoon of the accident and was released three days later. Id. at 4.
Subsequently, he underwent approximately four months of physical therapy. Id. The plaintiff
lodged his complaint with the Superior Court on March 23, 2009, but the federal defendant
removed the case to this Court on May 11, 2009 [Dkt. No. 1].
The plaintiff alleges that VA staff “under-treated” him, referred him to an “unscrupulous
law firm during the time of trauma,” and “ignored [his] complaints about pain in his left
shoulder[.]” Compl. at 2-3. He alleges that GMAC, “while accepting responsibility” as the
driver’s insurer and offering him $25,000, “refused to consider [his] actual damages for
compensation,” id. at 1, and that Avery provided him inadequate legal representation, id. at 3.
II. DISCUSSION
1. The Federal Defendants’ Motion to Dismiss
The plaintiff sues the VAMC for medical malpractice and presumably for negligence
stemming from the alleged law firm referral. The United States argues that the complaint should
be dismissed because (1) the plaintiff has not exhausted his administrative remedies under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80 (2000), which is the only possible
basis for the plaintiff’s claims against the VAMC; (2) the FTCA claim is barred by the applicable
two-year statute of limitations set forth at 28 U.S.C. § 2401(b); and (3) the complaint is “moot”
in light of this Court’s prior dismissal of the plaintiff’s “virtually identical claim” for lack of
subject matter jurisdiction. Memorandum of Points and Authorities in Support of Federal
2
Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment and in Opposition
to Plaintiff’s Motion for Remand at 5-9. As to the United States’s third argument, the Court does
not find the complaint to be moot but rather finds that the plaintiff is collaterally estopped from
relitigating the medical malpractice claim against the VAMC because it was previously
determined from the same set of facts that “a federal district court does not have subject matter
jurisdiction over claims that would require the court to determine first whether the VA provided
appropriate medical care to the plaintiff,” Jackson v. GMAC Insurance, Civ. Action No. 09-439
(Memorandum Opinion of March 6, 2009) (accompanying Order dismissing claim with
prejudice) (citing Thomas v. Principi, 394 F.3d 970, 975 (D.C. Cir. 2005)).2 Because the
plaintiff has no way of curing the foregoing jurisdictional defect, the prior disposition
“preclude[s] relitigation of the precise issue of jurisdiction that led to the initial dismissal” of the
medical malpractice claim. GAF Corp. v. U.S., 818 F.2d 901, 912 (D.C. Cir. 1987); cf. Zellars v.
U.S., 578 F. Supp. 2d 1, 3 (D.D.C. 2008) (“[T]his Court's earlier dismissal of the claim for lack
of subject matter jurisdiction is a final judgment on the merits for res judicata purposes.”)
(footnote omitted).
The statute foreclosing this Court’s review of veterans’ benefits claims, see 38 U.S.C.
511, “does not give the VA exclusive jurisdiction to construe laws affecting the provision of
veterans benefits or to consider all issues that might somehow touch upon whether someone
receives veterans benefits.” Broudy v. Mather, 460 F.3d 106, 112 (D.C. Cir. 2006) (emphasis in
original). “Rather, it simply gives the VA authority to consider such questions when making a
decision about benefits.” Id. The plaintiff’s claim predicated on the VAMC staff’s alleged
2
See Price v. U.S., 228 F.3d 420, 421 (D.C. Cir. 2000) ("The exclusive avenue for
redress of veterans' benefits determinations is appeal to the Court of Veterans Appeals [renamed
Court of Appeals for Veterans Claims] and from there to the United States Court of Appeals for
the Federal Circuit.") (citing 38 U.S.C. §§ 511, 7252, 7292) (other citations omitted).
3
referral of an “unscrupulous law firm during the time of trauma,” Compl. at 2, does not require
judicial review of a determination about veterans benefits and therefore is not foreclosed from
consideration under the FTCA. Before initiating a lawsuit under the FTCA, however, a claimant
must exhaust his administrative remedies by "first present[ing] the claim to the appropriate
Federal agency[.]" 28 U.S.C. § 2675(a). The failure to exhaust deprives the Court of subject
matter jurisdiction. See GAF Corp., 818 F.2d at 917-20; Jackson v. United States, 730 F.2d 808,
809 (D.C. Cir. 1984); Cronauer v. U.S., 394 F. Supp. 2d 93, 95-6 (D.D.C. 2005). The plaintiff
has not refuted the fact that the Department of Veterans Affairs has “no record of any FTCA
claim filed by [him].” Def.’s Ex. D (Declaration of Frank Giorno) ¶ 3 [Dkt. No. 11-5].3
Accordingly, the Court grants the federal defendants’ Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction. See Abdurrahman v. Engstrom, 168 Fed. Appx. 445 (D.C. Cir.
2005) (per curiam) (“[T]he district court properly dismissed case [based on unexhausted FTCA
claim] for lack of subject matter jurisdiction.”).
2. The Plaintiff’s Motion for Remand
A federal district court is authorized to remand a removed case to the state or local court
from which it originated “[i]f at any time before final judgment it appears that the district court
lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). Having dismissed the complaint against
the removing party and finding no compelling reason for this Court to exercise jurisdiction over
the remaining local law claims, the Court grants the plaintiff’s motion to remand the remainder
of case to the Superior Court. See District of Columbia v. Merit Sys. Protect. Bd., 762 F.2d 129,
132-33 (D.C. Cir. 1985) (“If the federal party is eliminated from the suit after removal under
3
In ruling on a Rule 12(b)(1) motion to dismiss, “the [C]ourt may consider the
complaint supplemented by undisputed facts evidenced in the record [.]” Herbert v. National
Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (citing cases).
4
[§ 1447(a)], the district court . . . retains the power either to adjudicate the underlying state law
claims or to remand the case to state court.”) (citations omitted); Agudas Chasidei Chabad of
U.S. v. Russian Fed’n, 528 F.3d 934, 950 (D.C. Cir. 2008) (“There is a substantial presumption
in favor of a plaintiff's choice of forum.”) (citations omitted).4
________s/______________
Reggie B. Walton
DATE: October 22, 2009 United States District Judge
4
A separate Order accompanies this Memorandum Opinion.
5