Mortenson et al v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JERRY MORTENSON,
ALEXANDRIA E. MORTENSON,
for MARY A. MORTENSON,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
Case No.: 4:21-cv-00026-JMK
3:21-cv-00248-JMK
ORDER GRANTING MOTIONS TO
DISMISS
Before the Court are two motions: 	Defendant United States’ “Motion to
Dismiss all Claims Against the United States for Lack of Administrative Exhaustion and
as Barred by the Statue of Limitations” at Docket 6, and the companion “Motion to Dismiss
All Claims Against the United States in Case No. 3:21-cv-00248-JMK for Lack of
Administrative Exhaustion and Expired Statute of Limitations” at Docket 10. 	Plaintiffs
did not file a response to either motion. 	For the following reasons, the motions are
GRANTED 	IN 	PART, 	and 	Plaintiffs’ 	claims 	are 	DISMISSED 	WITHOUT
PREJUDICE.
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Mortenson, et al. v. United States 	Case No. 4-21:cv-00026-JMK
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I. 	BACKGROUND
Plaintiffs Jerry Mortenson and Alexandria E. Mortenson bring these actions
on behalf of Mary A. Mortenson under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 2674. 	Plaintiffs allege that dental providers at Yukon Kuskokwim Health Corporation
(YKHC) and Yukon Kuskokwim Delta Regional Hospital (YKDRH) in Bethel, Alaska,
committed medical malpractice on October 2, 2019, while providing dental care to Mary
Mortenson.1
Plaintiffs, representing themselves, initially filed a small claims action in
state court on October 1, 2021 (“the First Complaint”).2 	On November 1, 2021, the
Government certified that the dental providers at YKHC/YKDRH are deemed federal
employees under the FTCA and were acting within the scope of their employment with
respect to Plaintiffs’ allegations.3 	The case was properly removed to this Court, and the
United States was substituted in place of all named defendants pursuant to 28 U.S.C.
§ 2679(d)(2).4
The Government then filed its initial Motion to Dismiss on November 3,
2021 (“First Motion to Dismiss”), alleging that Plaintiffs’ claims were “. . . fatally flawed
because they have failed to file an administrative claim with the appropriate agency, a
1 See generally Docket 1-1; Complaint, Mortenson v. YKHC/YKDRH Dental Dept., Case
No. 3:21-cv-00248-JMK (D. Alaska Nov. 9, 2021) (Docket 1).
2 Docket 1-1.
3 Docket 3 at 2. Healthcare providers at this facility are employees of the United States
for purposes of liability under the FTCA, pursuant to YKHC’s compact and agreement with the
Department of Health and Human Services under the Indian Self-Determination and Education
Assistance Act (ISDEAA), 25 U.S.C. § 5321.
4 See generally Docket 1.
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Mortenson, et al. v. United States 	Case No. 4-21:cv-00026-JMK
Order Granting Government’s Motion to Dismiss 	Page 3
jurisdictional prerequisite to filing a lawsuit against the United States for a tort.”5 	On
November 12, 2021, the Court issued a “Warning Notice to Plaintiff & Order Re: Motion
to Dismiss,” which instructed Plaintiffs to file any opposition to the Government’s First
Motion to Dismiss within 21 days.6
Plaintiff did not respond to the First Motion to Dismiss. 	Instead, on
November 9, 2021, Alexandria E. Mortenson, representing herself, filed a new civil
complaint in this Court against YKHC/YKDRH alleging medical malpractice on behalf of
Mary A. Mortenson (“the Second Complaint”).7 	On January 14, 2022, this Court sua
sponte consolidated the two cases pursuant to Federal Rule of Civil Procedure 42, finding
that “both actions share a common question of law and a common question of fact.”8
The Government subsequently filed its “Motion to Dismiss All Claims
Against the United States in Case No. 3:21-cv-00248-JMK for Lack of Administrative
Exhaustion and Expired Statute of Limitations” on January 18, 2022 (“Second Motion to
Dismiss”).9 To date, the Plaintiffs have not responded to either motion.
II. 	LEGAL STANDARD
The 	Government 	has 	filed 	its 	motions 	to 	dismiss 	pursuant 	to 	both
Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. As a preliminary
matter, 	the 	Court 	recognizes 	that 	its 	previous 	order 	erroneously 	converted 	the
5 Docket 6 at 2.
6 Docket 8 at 3.
7 See generally Complaint, Mortenson v. YKHC/YKDRH Dental Dept., Case No. 3:21-cv-
00248-JMK (D. Alaska Nov. 9, 2021) (Docket 1).
8 Docket 9 at 2.
9 Docket 10.
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Mortenson, et al. v. United States 	Case No. 4-21:cv-00026-JMK
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Government’s First Motion to Dismiss into a motion for summary judgment.10 	While a
Rule 12(b)(6) motion generally cannot rely on facts outside of the pleadings, this Court
incorrectly understood the Government’s argument under Rule 12(b)(6) to reference
extrinsic evidence.11 The Court accordingly rescinds the portion of its “Warning Notice to
Plaintiff & Order Re: Motion to Dismiss” at Docket 8 that converts the Government’s First
Motion to Dismiss into a motion for summary judgment. It remains a motion to dismiss.
A. 	Federal Rule of Civil Procedure 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), a party moves to dismiss a
claim for lack of subject matter jurisdiction. 	“A federal court is presumed to lack
jurisdiction in a particular case unless the contrary affirmatively appears.”12 As such, the
party asserting subject matter jurisdiction has the burden of proving its existence.13
A jurisdictional attack under Rule 12(b)(1) may be facial or factual. A facial
attack accepts the plaintiff’s allegations as true, but asserts that they are legally insufficient
to invoke jurisdiction.14 	A factual attack contests the truth of the plaintiff’s allegations,
and, in doing so, the defendant may introduce evidence outside the pleadings.15 The court
no longer presumes plaintiff’s allegations to be true:
When the defendant raises a factual attack, the plaintiff must
support her jurisdictional allegations with ‘competent proof’
under 	the 	same 	evidentiary 	standard 	that 	governs 	in 	the
10 Docket 8 at 1.
11 See Fed. R. Civ. P. 12(d).
12 A–Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (quotation omitted).
13 Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017); Laborers’
Int’l Union of N. Am., Local 341 v. Main Building Maint., Inc., 435 F. Supp. 3d 995, 999 (D.
Alaska 2020).
14 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).
15 Id.
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Mortenson, et al. v. United States 	Case No. 4-21:cv-00026-JMK
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summary judgment context. The plaintiff bears the burden of
proving by a preponderance of the evidence that each of the
requirements for subject-matter jurisdiction has been met.16
Last, “[w]hen faced with a challenge to its subject matter jurisdiction under Rule 12(b)(1),
the court must resolve that issue before determining whether the complaint states a claim
under Rule 12(b)(1).”17
B. 	Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss
a complaint because it fails to state a claim upon which relief can be granted. This means
that the facts alleged by the complaint do not amount to a claim under any cognizable legal
theory.18 To survive a motion to dismiss, the complaint must contain enough facts that, if
taken as true, would state a legal claim to relief that is “plausible on its face.”19 The Court
assumes that the facts alleged in the complaint are true and construes them in the light most
favorable to the nonmoving party.20 	However, conclusory statements, unwarranted
inferences, and naked assertions of law will not suffice; “they must be supported by factual
allegations” to survive a motion to dismiss.21
Overall, dismissal for failure to state a claim is proper “if it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
16 Id. (internal citations omitted).
17 Local 341 v. Main Building Maint., Inc., 435 F. Supp. 3d 995, 999 (D. Alaska 2020)
(citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)).
18 Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015).
19 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
20 Id. (quoting Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012)).
21 Ashcroft, 556 U.S. at 679.
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Mortenson, et al. v. United States 	Case No. 4-21:cv-00026-JMK
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him to relief.”22 A court may dismiss a case based on an affirmative defense, but “only if
the defendant shows some obvious bar to securing relief on the face of the complaint.”23
In this situation, a motion to dismiss will only be granted if the affirmative defense “raises
no disputed issues of fact.”24
III. 	DISCUSSION
The 	Government 	argues 	that 	(a) 	the 	Court 	lacks 	jurisdiction 	because
Plaintiffs 	failed 	to 	file 	an 	administrative 	claim 	with 	the 	appropriate 	agency, 	and
(b) Plaintiffs’ case should be dismissed with prejudice as time barred.
A. 	The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Claims Because
They Have Not Properly Exhausted Their Administrative Remedies
To bring a tort claim against a federal agency, one must comply with all
statutory prerequisites, including the requirement that plaintiff exhaust all administrative
remedies before the commencement of a lawsuit.25 After filing a claim with the appropriate
federal agency, a plaintiff is deemed to have exhausted all administrative remedies once
that claim is denied or upon expiration of six months.26 	The Ninth Circuit has held that
this requirement is jurisdictional.27
22 Laborers’ Int’l Union of N. Am., Loc. 341 v. Main Bldg. Maint., Inc., 435 F. Supp. 3d
995, 1000 (D. Alaska 2020) (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,
923 (9th Cir. 2001)).
23 ASARCO, LLC v. Union Pac. R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).
24 Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984).
25 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 113 (1993) (describing the
FTCA’s exhaustion requirement as a “clear statutory command”).
26 28 U.S.C. § 2675(a).
27 Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011).
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Mortenson, et al. v. United States 	Case No. 4-21:cv-00026-JMK
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The Government moves to dismiss Plaintiffs’ claims against the United
States because they have not filed an administrative claim. 	Indeed, neither the First
Complaint nor Second Complaint include any indication that Plaintiffs filed a claim with
the appropriate federal agency, let alone that the claim was denied or that six months had
passed since filing it.28 	Plaintiffs have not responded to either of the Government’s
motions to prove otherwise or amended their pleadings to allege exhaustion. 	The Court
previously warned Plaintiffs that failure to oppose the Government’s motion may result in
dismissal, and it ordered Plaintiffs to file a response by December 3, 2021.29 	Because
Plaintiffs do not oppose the Government’s motions, the Court concludes that Plaintiffs have
waived any challenge to the dismissal of their claims.30 Furthermore, Plaintiffs have failed
to meet their burden to establish subject matter jurisdiction: 	there simply is no evidence
before the Court that Plaintiffs have met the jurisdictional requirements of the FTCA by
first exhausting their administrative remedies. 	This mandates that the Court dismiss
Plaintiffs’ First Complaint and Second Complaint for lack of subject matter jurisdiction.31
B. 	The Court does not Reach whether Plaintiffs’ Claims are Time Barred
“[T]he requirement that jurisdiction be established as a threshold matter is
inflexible and without exception; for jurisdiction is the power to declare the law, and
28 See Docket 1-1; Complaint, Mortenson v. YKHC/YKDRH Dental Dept., Case No. 3:21-
cv-00248-JMK (D. Alaska Nov. 9, 2021) (Docket 1).
29 Docket 8 at 2–3.
30 See V.V.V. & Sons Edible Oils Ltd. v. Meenakshi Overseas, LLC, 946 F.3d 542, 547 (9th
Cir. 2019) (finding that party’s non-opposition to motion to dismiss waived any challenge to the
dismissal of its claims); see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to
follow a district court’s local rules is a proper ground for dismissal.”).
31 See 28 U.S.C. § 2675(a); Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011).
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Mortenson, et al. v. United States 	Case No. 4-21:cv-00026-JMK
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without jurisdiction the court cannot proceed at all in any cause.”32 The Government asks
the Court to find that Plaintiffs’ First Complaint and Second Complaint are time barred by
the FTCA’s statute of limitations, and thus dismiss the claims with prejudice pursuant to
Rule 12(b)(6).33 But because the Court does not have jurisdiction over Plaintiffs’ claims
against the United States, it cannot consider the Government’s motion to dismiss for failure
to state a claim. 	Whether an FTCA claim is barred by the statute of limitations is not
jurisdictional and ruling on this issue would require the Court to analyze whether Plaintiffs’
claims are subject to equitable tolling.34 Without jurisdiction, the Court cannot proceed to
this question.
IV. 	CONCLUSION
For the reasons set forth above, the Government’s motions to dismiss at
Dockets 6 and 10 are GRANTED IN PART and Plaintiffs’ claims are DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED this 21st day of April, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
32 Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017) (quoting
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999)).
33 Docket 6 at 5; Docket 10 at 7.
34 See United States v. Kwai Fun Wong, 575 U.S. 402, 412 (2015).
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