United States District Court, E.D. Michigan, Southern Division
ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS
(ECF #5) AND (2) DISMISSING COUNT II OF PLAINTIFFS'
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE
action, Plaintiff Kris Roena Brown (“Ms. Brown”)
alleges that on October 4, 2014, she was driving on Ten Mile
Road in Southfield, Michigan and was struck by vehicle driven
by a woman named Amanda Almanza (“Almanza”).
(See Compl. at ¶12, ECF #1 at 2, Pg. ID 2.) As
a result of the collision, Ms. Brown says that she suffered
substantial injuries. (See Compl. at ¶¶
23-24, ECF #1 at 4, Pg. ID 4.)
August 17, 2016, Ms. Brown and her husband Aaron Brown
(“Mr. Brown”) (collectively, the
“Browns”) filed this personal injury action
against Defendant United States of America under the Federal
Tort Claims Act, 28 U.S.C. § 1346(b)(1) (the
“FTCA”). (See Compl., ECF #1.) The
Browns assert that the Government is liable because Almanza
is an employee of the Federal Emergency Management Agency
(“FEMA”) and was acting within the scope of her
employment at the time of the accident. (See Id. at
¶4, ECF #1 at 1-2, Pg. ID 1-2.) The Browns bring two
claims in their Complaint. In count one, Ms. Brown maintains
that Almanza's negligent driving caused her to suffer
substantial and serious injuries. (See Id. at
¶¶ 23-24, ECF #1 at 4, Pg. ID 4.) In count two, Mr.
Brown asserts a claim for loss of consortium. (See
Id. at ¶29, ECF #1 at 5, Pg. ID 5.)
Government has now moved to dismiss Mr. Brown's loss of
consortium claim (the “Motion”). (See
ECF #5.) The Government insists that the Court lacks subject
matter jurisdiction over that claim because Mr. Brown did not
first present the claim to FEMA before filing this action.
The Court agrees.
against the United States are barred in unless the Government
has waived its sovereign immunity, and “the terms of
[the Government's] consent to be sued in any court define
that court's jurisdiction to entertain the suit.”
Lehman v. Nakshian, 453 U.S. 156, 160 (1981). The
FTCA is a “jurisdictional statute” that allows
plaintiffs to file actions against the Government if certain
conditions are satisfied. Milligan v. U.S., 670 F.3d
686, 692 (6th Cir. 2012). Under the FTCA, the Court has
jurisdiction over a civil claim brought against the
Government only if the plaintiff first presented his or her
claim to the appropriate administrative agency. See
28 U.S.C. § 2675(a) (“An action shall not be
instituted upon a claim against the United States …
unless the claimant shall have first presented the claim to
the appropriate Federal agency”); see also Sherman
v. United States, 48 F.Supp.3d 1019, 1024 (E.D. Mich.
2014) (“Because the plaintiff did not present his
administrative claim with ‘the appropriate [f]ederal
agency' before he commenced this lawsuit [under the
FTCA], this Court had no jurisdiction to adjudicate the
complaint when it was filed”).
attorney Joseph Dedvukaj (“Mr. Dedvukaj”) filed a
claim on Ms. Brown's behalf with FEMA on March 17, 2016.
(See ECF #11-3 at 10-11, Pg. ID 84-85.) That claim
did not allege that Mr. Brown suffered any losses nor did it
seek any damages for loss of consortium. In fact, the claim
form is signed by Ms. Brown (not Mr. Brown) as the
“claimant” and lists only the injuries that she
claims to have suffered (none of which include loss of
consortium on her behalf or her husband's behalf).
(See Id. at 10, Pg. ID 84.)
Browns insist that “[i]t is clear taking the totality
of the claim material that [Mr. Brown] was making a claim as
well.” (Browns Resp. Br. at 5, ECF #10 at 5, Pg. ID
61.) The Court disagrees. The “claim material”
included the claim form itself, a cover letter from Mr.
Dedvukaj, “household services statements”
describing the services that were provided to Ms. Brown, and
Ms. Brown's medical records. (See ECF #11-3.)
None of those documents, reviewed individually or
collectively, can reasonably be read as asserting a claim for
loss of consortium on Mr. Brown's behalf.
instance, the heading of the cover letter from Mr. Dedvukaj
indicates that it is “Re: Kris Roena Brown, ” and
the letter's first sentence reads “I am making a
claim on behalf of my client Kris Roena
Brown….” (See Id. at 2, Pg. ID 76;
emphasis added.) The letter concludes by warning FEMA that if
it refused to accept or deny the claim within the time period
prescribed by law, Mr. Dedvukaj would “immediately
commence suit against the United State[s] of America for the
tortious conduct of the FEMA employee causing the
injuries and damages sustained by Kris Brown, past,
present and future.” (Id. at 4, Pg. ID 78;
emphasis added). The cover letter never even mentions Mr.
Brown, nor says that he is asserting a claim for loss of
consortium. (See Id. at 2, Pg. ID 76.) And the
remaining documents submitted to FEMA reference Mr. Brown
just twice: once in a box on the claim form that asks for the
“[n]ame, address of claimant, and claimant's
personal representative” (id. at 10, pg. ID
84.) and then as Ms. Brown's “service
provider” on various “household services
statement” forms (see Id. at 15-32, Pg. ID
89-106). Those forms list the services Mr. Brown provided to
Ms. Brown, such as “vacuuming, ” “dusting,
” and “laundry.” (Id.) In no way
do these documents assert any kind of claim for lack of
consortium on Mr. Brown's behalf.
Browns resist this conclusion based upon the decision in
Emery v. United States, 920 F.Supp. 788 (W.D. Mich.
1996). In Emery, the district court held that a
claim form submitted to the Department of Health and Human
Services put the department on notice of a spouse's claim
for loss of consortium. But Emery is different from
this case in one critical way. The claim form at issue in
Emery expressly stated that the claimants' wife
“ha[d] suffered a loss of consortium, love and
affection.” Id. at 791. Thus, “it [was]
clear from the face of the form that [the spouse] was
alleging a claim for loss of consortium against the
government.” Id. As described above, the claim
form and accompanying documents in this case contain no such
claim on Mr. Brown's behalf. Therefore, Emery
does not save Mr. Brown's claim for loss of consortium.
for the reasons stated above, the Court concludes that Mr.
Brown did not present his claim for loss of consortium to
FEMA before filing this action, and the Court therefore lacks
jurisdiction to adjudicate that claim. The Motion is