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Midyette v. United States

United States District Court, M.D. Alabama, Southern Division

May 28, 2019



          W. Keith Watkins, United States District Judge.

         Plaintiffs 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.


         The 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.


         A 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).

         “If, 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 evidence.”).

         III. FACTS

         On 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.”[1] When Arkuszeski tried to merge onto the highway, he purportedly struck Midyette's car, injuring both Midyette and Frymark. (Doc. # 1, at 4-6.)

         Almost 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.)

         Though 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.)

         In July 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).


         “It 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 ...

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