United States District Court, W.D. North Carolina, Asheville Division
CANDY LOSSIAH as Administratrix of the Estate of ANTHONY EDWARD LOSSIAH, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND RECOMMENDATION
S. Cayer, United States District Judge.
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.
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.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that the Motion to Dismiss be denied as discussed
PROCEDURAL AND FACTUAL BACKGROUND
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. Lossiah died at an Asheville hospital on
October 6, 2015.
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
16, 2018, Plaintiff filed this wrongful death action on
behalf of Lossiah's estate, alleging the same facts as
the workers' compensation claim.
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.
Motion to Dismiss for Lack of Subject Matter
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).
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).
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 ...