United States District Court, M.D. Alabama, Southern Division
MICHAEL R. MIDYETTE and ERICA G. FRYMARK, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
Keith Watkins, United States District Judge.
Michael Midyette and Erica Frymark filed this lawsuit against
the United States under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671-2680 (FTCA). The United
States moves to dismiss for lack of subject-matter
jurisdiction. That motion is due to be granted in part and
denied in part. Because Midyette did not present a claim for
a “sum certain” to the appropriate federal
agency, the court has no jurisdiction over his lawsuit. But
given the little evidence that the court has at this point,
discovery is warranted before the court finds whether it has
jurisdiction over Frymark's claim.
JURISDICTION AND VENUE
court has jurisdiction to the extent provided by the FTCA.
See 28 U.S.C. §§ 1331, 1346(b)(1). The
parties do not contest personal jurisdiction or venue.
STANDARD OF REVIEW
motion to dismiss for lack of subject-matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) can be either
a facial attack or a factual attack. Barnett v.
Okeechobee Hosp., 283 F.3d 1232, 1237 (11th Cir. 2002).
“If the 12(b)(1) motion represents a facial attack on
jurisdiction - that is, the facts as stated supposedly do not
provide cause for federal jurisdiction - then the facts
alleged by the plaintiff are given the same presumption of
truthfulness as they would receive under a 12(b)(6)
motion.” Id. Discovery is not required.
McElmurray v. Consol. Gov't of Augusta- Richmond
Cty., 501 F.3d 1244, 1251 (11th Cir. 2007).
however, the 12(b)(1) motion raises a factual attack on
jurisdiction - the very facts providing cause for
jurisdiction are themselves challenged - then no such
presumption exists and the district court is allowed to
consider the facts as it sees fit.” Barnett,
283 F.3d at 1237-38. The court “may hear conflicting
written and oral evidence and decide for itself the factual
issues which determine jurisdiction.” Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. May 1981). But the
court “must give the plaintiff an opportunity for
discovery and for a hearing that is appropriate to the nature
of the motion to dismiss.” Id. at 414; see
Id. (“Insofar as the defendant's motion to
dismiss raises factual issues, the plaintiff should have an
opportunity to develop and argue the facts in a manner that
is adequate in the context of the disputed issues and
January 29, 2015, Michael Midyette was driving on Highway 231
through Midland City, Alabama. Erica Frymark was in the
passenger seat. At the same time, Christopher Arkuszeski was
driving a government truck, allegedly within the course and
scope of his employment for the “U.S. Air National
Guard.” When Arkuszeski tried to merge onto the
highway, he purportedly struck Midyette's car, injuring
both Midyette and Frymark. (Doc. # 1, at 4-6.)
two years later, in December 2016, Midyette and Frymark each
mailed a “Standard Form 95” (SF-95) by certified
mail to “Office of the JAG, 5107 Selma Highway,
Montgomery, AL 36108.” (Doc. # 1, at 2; Doc. # 16-1, at
1; Doc. # 16-2, at 1.) An SF-95 is an administrative claims
form that is used to present a claim for damages to a federal
agency. 28 C.F.R. § 14.2(a). But there is no National
Guard facility at 5107 Selma Highway. The Alabama Air
National Guard's 187th Fighter Wing does have a facility
on Dannelly Field, but it is at 5187 Selma Highway.
“The 187th Fighter Wing does not have a full-time JAG
office.” (Doc. # 12-2, at 2.) The Office of the Staff
Judge Advocate for the Alabama National Guard is at 1720
Congressman W.L. Dickinson Drive, Montgomery, AL 36109. (Doc.
# 12-2, at 2.)
Midyette and Frymark mailed their SF-95s to the wrong
address, the U.S. Postal Service somehow delivered the forms,
and Midyette and Frymark got return receipts. (Doc. # 16-1,
at 1; Doc. # 16-2, at 1.) Frymark's SF-95 was signed for
on January 4, 2017. (Doc. # 16-1, at 1.) The United States
admits there is evidence that the forms were delivered
“to the Dannelly Field Alabama Air National Guard Base
located at 5187 Selma Highway.” (Doc. # 20, at 2.) Yet
the Air Force has no record of Midyette and Frymark's
SF-95s in its computer databases. Nor has it found a physical
copy of Midyette and Frymark's SF-95s. (Doc. # 12-1, at
2-3.) It should therefore come as no surprise that the Air
Force did not respond to Midyette and Frymark's SF-95s.
(Doc. # 1, at 3.)
2018 - eighteen months after mailing their SF-95s - Midyette
and Frymark sued the United States for negligence under the
FTCA. (Doc. # 1, at 5-6.) The United States moved to dismiss
under Rule 12(b)(1). (Docs. # 11, 12.) Midyette and Frymark
responded (Docs. # 15, 16), and the United States replied
(Doc. # 20).
is well settled that the United States, as a sovereign
entity, is immune from suit unless it consents to be
sued.” Zelaya v. United States, 781 F.3d 1315,
1321 (11th Cir. 2015). “Through the enactment of the
FTCA, the federal government has, as a general matter, waived
its immunity from tort suits based on state law tort
claims.” Id. “But in offering its
consent to be sued, the United States has the power to
condition a waiver of its immunity as broadly or narrowly as
it wishes, and according to whatever terms it chooses to
impose.” Id. at 1321-22. Thus, the court
“must strictly observe the ‘limitations and
conditions upon which the ...