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Lossiah v. United States

United States District Court, W.D. North Carolina, Asheville Division

February 13, 2019

CANDY LOSSIAH as Administratrix of the Estate of ANTHONY EDWARD LOSSIAH, Plaintiff,


          David S. Cayer, United States District Judge.

         THIS MATTER is before the Court on the “United States Motion to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)” (document #9) and the parties' briefs and exhibits.

         This matter was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) on November 6, 2018 and this Motion is now ripe for consideration.

         Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that the Motion to Dismiss be denied as discussed below.


         This is a wrongful death action brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2761, et seq. (“FTCA”). Plaintiff is the widow and Administratrix of the estate of Anthony Lossiah, a police officer for the Eastern Band of Cherokee Indians (the “EBCI”). On August 11, 2015, Lossiah suffered a hip injury while chasing a suspect. He later suffered complications following treatment at the Cherokee Indian Hospital. The medical providers who treated Lossiah were employees of the United States Department of Health and Human Services' (“DHHS”) Public Health Service.[1] Lossiah died at an Asheville hospital on October 6, 2015.

         In her individual capacity, Plaintiff filed a claim under North Carolina's Workers' Compensation Act, N.C. Gen. Stat. § 97-2, et seq. On December 8, 2016, Plaintiff entered into a Settlement Agreement with the EBCI on behalf of herself and her minor children. On May 12, 2017, the North Carolina Industrial Commission approved the Settlement Agreement.

         On May 16, 2018, Plaintiff filed this wrongful death action on behalf of Lossiah's estate, alleging the same facts as the workers' compensation claim.

         The United States moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Defendant contends that the worker's compensation claim was Plaintiff's exclusive remedy and, accordingly, this Court lacks subject-matter jurisdiction. Defendant also argues that Plaintiff has failed to state a claim upon which relief can be granted because the Settlement Agreement bars this action.


         A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         Subject matter jurisdiction is a threshold issue for the Court. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 96 (1998); Jones v. American Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The requirements are so absolute that “[n]o party need assert [a lack of subject matter jurisdiction]. No. party can waive the defect, or consent to jurisdiction. No. court can ignore the defect; rather a court, noticing the defect, must raise the matter on its own.” Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 389 (1998) (internal citations omitted). See also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1945 (2009) (“Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt”) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); United States v. Cotton, 535 U.S. 625, 630 (2002)); Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

         The party asserting federal jurisdiction has the burden of proving that subject matter jurisdiction exists. See, e.g., Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999); Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); Norfolk Southern Ry. Co. v. Energy Dev. Corp., 312 F.Supp.2d 833, 835 (S.D.W.Va. 2004).

         The FTCA provides for a “limited waiver” of the United States' sovereign immunity, making defendant liable to the same extent as a private party for certain torts of federal employees who act within the scope of their employment. Wood v. Standard Prods. Co., Inc., 671 F.2d 825, 829 (4th Cir. 1982). In an FTCA analysis, “the controlling question is whether the substantive law of (the applicable state) permits . . . recovery from the United States under the facts of this case.” Certain Underwriters at Lloyd's v. United States, 511 F.2d 159, 161 (5th Cir. 1975). Accordingly, to maintain an action under the FTCA, Plaintiff must establish that the federal government is liable “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Id. (emphasis added); see also Starns v. United States, 923 F.2d 34, 47 (4th Cir. 1991) (“The FTCA assures the federal government of that treatment accorded private parties”); Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991) (“A plaintiff has an FTCA cause of action . . . only if she would also have a cause of action under state law ...

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