United States District Court, D. Oregon
Georgia Marie Pro Se Plaintiff
J. Williams United States Attorney James E. Cox, Jr.
Assistant United States Attorney Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Social Security Administration's
unopposed motion to dismiss . Plaintiff brought this
action in Multnomah County Circuit Court alleging
Defendant's employees stole a portion of Plaintiff's
Social Security benefits payment. See Notice of
Removal, Ex. 1 at 1, ECF 1. Defendant removed to federal
court and now moves to dismiss Plaintiff's claims for
lack of subject matter jurisdiction under Rule 12(b)(1) of
the Federal Rules of Civil Procedure. Defendant's
arguments are threefold. First, the Court lacks subject
matter jurisdiction over Plaintiff's claims under the
doctrine of derivative jurisdiction because Plaintiff could
not have originally brought her claims in state court.
Second, under the Federal Tort Claims Act
(“FTCA”), the United States does not waive its
sovereign immunity regarding tort claims alleging deceit.
Third, the Court lacks subject matter jurisdiction under the
FTCA because Plaintiff failed to first file her claim with
the appropriate federal agency before bringing this lawsuit.
filed this lawsuit against Defendant in small claims court in
Multnomah County Circuit Court. See Notice of
Removal, Ex. 1. Plaintiff alleged that Defendant's
employee Sue Peel and her supervisor “embezzled and
stole” $386.10 from her disability benefit payment.
Id. In addition, Plaintiff claims that “these
2 employees . . . committed attempted murder and have
threatened” her life. Id. She requests
approximately $10, 000 in damages, costs, and fees.
removed Plaintiff's action to the District of Oregon
pursuant to 28 U.S.C. § 1442(a)(1). After removal,
Defendant filed its motion to dismiss currently before the
motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(1) addresses the court's subject matter
jurisdiction. The party asserting jurisdiction bears the
burden of proving that the court has subject matter
jurisdiction over his claims. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). “The
defense of lack of subject matter jurisdiction cannot be
waived, and the court is under a continuing duty to dismiss
an action whenever it appears that the court lacks
jurisdiction.” Augustine v. United States, 704
F.2d 1074, 1077 (9th Cir. 1983). As the Ninth Circuit has
instructed, however, courts must “continue to construe
pro se filings liberally.” Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint
“must be held to less stringent standards than formal
pleadings drafted by lawyers.” Id. (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
has not responded to Defendant's motion to dismiss and
has not demonstrated that this court has subject matter
jurisdiction over her claims. Federal district courts are
courts of limited jurisdiction, meaning they can only hear
certain types of cases. Kokkonen, 511 U.S. at 377.
As a general rule, there are two ways to invoke a district
court's subject matter jurisdiction: by raising a
so-called “federal question” or by bringing a
suit in which the plaintiff and all defendants are residents
of different states and the amount in controversy is more
than $75, 000 (“diversity jurisdiction”).
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 552 (2005).
question jurisdiction is controlled by 28 U.S.C. § 1331,
which states that “[t]he district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
In other words, to invoke federal question jurisdiction, the
plaintiff must plead in the complaint that the defendant has
violated some federal constitutional or statutory provision.
case, Plaintiff has not invoked any federal statute as the
basis for her action. As Defendant points out, however, her
claim should be construed as a tort claim against the federal
government under the FTCA. See 28 U.S.C. §
2679(b)(1). The FTCA provides the exclusive remedy for tort
claims against the federal government for “personal
injury or death arising or resulting from the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or
employment.” Id. Plaintiff's tort case
against the federal government is subject to the FTCA and
should have originally been brought in federal court, not
state court. 28 U.S.C §§ 1346(b)(1), Additionally,
Plaintiff must first exhaust her administrative remedies
before bringing a lawsuit. 28 U.S.C. §§ 2675(a),
2679(b)(1). In other words, Plaintiff could not have
originally brought this case in state court and she must
first exhaust her administrative remedies before filing an
action in federal court. See In re Elko Cty. Grand
Jury, 109 F.3d 554, 555 (9th Cir. 1997) (recognizing
that a federal court cannot acquire subject-matter
jurisdiction from state court that lacked it); Cox v.
U.S. Dep't of Agric., 800 F.3d 1031, 1032 (9th Cir.
2015) (citing Elko, 109 F.3d at 555) (same).
Therefore, the Court lacks subject matter jurisdiction over
Plaintiff's claims and this case must be dismissed.
Defendant has demonstrated that Plaintiff has failed to
exhaust her administrative remedies. See
Dell'Aglio Decl.¶¶ 4-5, ECF 5. Therefore, any
amendment to her claims prior to the exhaustion of those