Alexander v. United States

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Richard Alexander, et al., No. 2:22-cv-01324-KJM-CKD 12 Plaintiffs, ORDER 13 Vv. 14 United States of America, 1S Defendant[s]. 16 17 In this action arising under the Federal Tort Claims Act, the United States of America 18 | moves to dismiss plaintiff Richard Alexander’s wrongful death claim for lack of subject matter 19 | jurisdiction. The court submits the matter without a hearing and grants the motion. 20 Under the Federal Tort Claims Act, a claimant may bring an action in tort against the 21 | United States. Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995). However, under 28 22 | U.S.C. § 2675(a), the claimant must “first give the appropriate federal agency the opportunity to 23 | resolve the claim.” /d. (citing 28 U.S.C. § 2675(a)). This requirement is jurisdictional. /d. 24 The United States argues plaintiff has not presented his wrongful death claim to the 25 | Department of Veterans Affairs, and therefore, the court lacks subject matter jurisdiction. 26 | Mem. at 3,5, ECF No. 13-1. Plaintiff concedes the court lacks subject matter jurisdiction over 27 | his wrongful death claim but requests the court dismiss the claim without prejudice. Opp’n at 2,

1 | ECF No. 14. The United States agrees dismissal for lack of subject matter jurisdiction must be 2 | without prejudice. Reply at 1, ECF No. 15. 3 Because the court lacks subject matter jurisdiction over plaintiff's wrongful death claim, 4 | the claim is hereby dismissed without prejudice. See Hampton v. Pac. Inv. Mgmt. Co. LLC, 5 | 869 F.3d 844, 846 (9th Cir. 2017) (“Dismissals for lack of subject-matter jurisdiction . . . must be 6 | without prejudice[.]”). To the extent the parties dispute whether plaintiff's anticipated new 7 | wrongful death action would be timely, Opp’n at 3-4; Reply at 1, the matter is not currently 8 | before the court and the court cannot issue an advisory opinion resolving the issue, see Golden v. 9 | Zwickler, 394 U.S. 103, 108 (1969). 10 This order resolves ECF No. 13. The motion hearing set for April 19, 2024, is hereby 11 | vacated. 12 IT IS SO ORDERED. 13 DATED: April 2, 2024. / / 14 CHIEF ED STATES DISTRICT JUDGE