United States District Court, D. Delaware
LINDA MULVENA, individually and as Personal Representative of the Estate of GERALD MULVENA; and DANIELLE PABON, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
me is the Government's Partial Motion to Dismiss
Plaintiffs' Complaint for Lack of Subject Matter
Jurisdiction Pursuant to Rule 12(b)(1). (D.I. 4). I have
reviewed the parties briefing and letters (D.I. 6, 9, 10, 11,
12, 13), and considered the Plaintiffs request for oral
argument on this matter (D.I. 14). Because this court lacks
subject matter jurisdiction over the claims and claimants not
previously included in the administrative notice provided to
the Department of Veterans Affairs, I will grant
Mulvena died on March 10, 2018, of endocarditis caused by
mycobacterium chimera. (D.I. 10, Ex. A at Box 10). On
December 5, 2018, Mr. Mulvena's widow, Linda Mulvena,
submitted a Standard Form 95 ("SF-95") asserting a
claim with the Department of Veterans Affairs
("VA") for her husband's death. (Id.,
Ex. A). On the form, Mrs. Mulvena sought $2.5 million for
"personal injury" and $2.5 million for
"wrongful death." (Id., Ex. A, at Box 12).
SF-95 asks for a "detail[ed]" account of "the
known facts and circumstances attending the damage, injury,
or death, identifying persons and property involved, the
place of occurrence and the cause thereof."
(Id., Ex. A, at Box 8). Mrs. Mulvena's entry
Medical negligence. Breach in the standard of care,
including, but not limited to, failure to diagnose and treat
(Id.). The SF-95 also asks for a description of the
injury or cause of death that forms the basis of the claim.
(Id., Ex. A, at Box 10). Mrs. Mulvena's response
Gerald J. Mulvena died on March 10, 2018 from complication
[sic] of mycobacterium chimera, which the providers at the
Wilmington VA Hospital failed to diagnose and treat. He is
survived by his wife, Linda, and daughters.
(Id.). On January 22, 2019, Plaintiffs' counsel
received confirmation from the United States Department of
Veteran Affairs, Office of General Counsel, that
Plaintiffs' Claim had been received. (Id., Ex.
18, 2019, Plaintiffs filed suit, alleging that the medical
staff at the Wilmington Veterans Affairs Medical Center
failed properly to diagnose and treat Mr. Mulvena's
condition, to obtain appropriate informed consent, and
"was otherwise negligent in their care and
treatment." (D.I. 1 at ¶ 27). In their complaint,
Plaintiffs Linda Mulvena and Danielle Pabon bring individual
claims and Linda Mulvena brings a claim as personal
representative of the estate of Mr. Mulvena. (Id. at
Motion to Dismiss
12(b)(1) of the Federal Rules of Civil Procedure mandates the
dismissal of an action for "lack of subject matter
jurisdiction." A motion to dismiss under Fed.R.Civ.P.
12(b)(1) challenging the court's jurisdiction is treated
the same as a Rule 12(b)(6) motion. Gould Ekes. Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000). A Rule
12(b)(1) motion may be treated as either a facial or factual
challenge to the court's subject matter jurisdiction.
Constitution Party v. Aichele, 757 F.3d 347, 357-58
(3d Cir. 2014). "In reviewing a facial attack, 'the
court must only consider the allegations of the complaint and
documents referenced therein and attached thereto, in the
light most favorable to the plaintiff."'
Id. at 358 (quoting In re Schering Plough
Corp., 678 F.3d 235, 243 (3d Cir. 2012)). Because a
"factual attack" in a Rule 12(b)(1) motion to
dismiss addresses the court's power to hear the case,
there is no presumption of truthfulness and the court may
consider evidence outside the pleadings. CAN v. United
States, 535 F.3d 132, 139 (3d Cir. 2008); see also
Mortensen v. First Fed. Sav. & Loan Ass'n, 549
F.2d 884, 891 (3d Cir. 1977). Plaintiffs have the burden of
persuading the court that it has jurisdiction.
Gould, 220 F.3d at 178.
Federal Tort Claims Act
has authorized the Federal Tort Claims Act ("FTCA")
as an exclusive remedy to seek relief for tortious conduct by
agents or employees of the United States or one of its
agencies. 28 U.S.C. §2679(b)(1); see also United
States v. Smith,499 U.S. 160, 163 (1991). The FTCA
requires that, prior to commencing litigation, the claimant
"shall have first presented the claim to the appropriate
Federal agency" for its review. 28 U.S.C. §
2675(a). If a claimant fails to exhaust this administrative
remedy, the district court lacks subject matter jurisdiction
to adjudicate the claim. Lightfoot v. United States,564 F.3d 625, 626-27 (3d Cir. 2009). The FTCA's
procedural requirements are to be "strictly
construed." L ...