Edenshaw v. The United States Government

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ANTOINETTE EDENSHAW,
Plaintiff,
vs.
UNITED STATES OF AMERICA; and
NICOLE SHEPERD-BETZ, an
individual,
Defendants.
Case No. 3:22-cv-00021-JMK
ORDER GRANTING
MOTION TO DISMISS
Before the Court at Docket 13 is Defendant United States’ Second Motion to
Dismiss (the “Motion”). 	Plaintiff Antoinette Edenshaw filed a response in opposition at
Docket 14, to which the Government replied at Docket 15. For the following reasons, the
Motion is GRANTED, and Plaintiff’s claim is DISMISSED WITHOUT PREJUDICE.
I. 	BACKGROUND
Plaintiff Antoinette Edenshaw alleges that Defendant Nicole Sheperd-Betz,
an employee of the National Park Service, negligently ran a stop sign and collided with
Plaintiff’s vehicle.1 	Plaintiff’s Amended Complaint states that Defendant Sheperd-Betz
was driving the vehicle both “while in the course in [sic] scope of work or while not acting
1 Docket 11 at 2.
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Edenshaw v. United States 	Case No. 3:22-cv-00021-JMK
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within the scope of her office or employment.”2 	In a supplemental statement, Plaintiff
explains that,
undersigned counsel is not aware of certification from the
Attorney General which might conclusively establish whether
or not Nicole Sheperd-Betz was an employee of the United
States of America Government acting within the scope of her
office or employment at the time and date of the injuries to
Plaintiff Edenshaw.3
The Amended Complaint names both the United States and Nicole Sheperd-Betz as
Defendants.4 With respect to Defendant United States, Plaintiff brings her claim pursuant
to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674.5 With respect to Defendant
Sheperd-Betz, Plaintiff brings her claims “under 31 U.S.C. § 1344 and/or 41 C.R.F. § 102-
34.22 for using or authorizing the use of a government motor vehicle for other than official
purposes.”6
II. 	LEGAL STANDARD
The Government argues that Plaintiff failed to exhaust her administrative
remedies, a jurisdictional requirement for FTCA actions.7 As such, the Government moves
to dismiss Plaintiff’s claim for lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1).8
2 Id. (emphasis added).
3 Docket 11-1 at 3.
4 Docket 11 at 1–2.
5 Id.
6 Id. at 2.
7 See Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011).
8 At times, the Government’s Motion references Federal Rule of Civil Procedure 12(b)(6)
while still arguing that the Court should dismiss Plaintiff’s claim for lack of subject matter
jurisdiction. 	Compare Docket 13 at 1–2 with Docket 13 at 3–4. 	The Court interprets the
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Edenshaw v. United States 	Case No. 3:22-cv-00021-JMK
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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.9 A factual attack contests the truth of the plaintiff's allegations, and,
in doing so, the defendant may introduce evidence outside the pleadings.10 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
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.11
In both facial and factual attacks, the party asserting subject matter jurisdiction has the
burden of showing its existence.12 	“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively appears.”13
III. 	DISCUSSION
The FTCA requires that claimants first exhaust their administrative remedies
before filing an action in federal court.14 	For the purposes of exhaustion, “the claimant
shall have first presented the claim to the appropriate Federal agency and his claim shall
Government’s reference to Rule 12(b)(6) as an error and does not analyze Plaintiff’s claim under
this standard.
9 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).
10 Id.
11 Id. (internal citations omitted).
12 Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017).
13 A–Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (quotation omitted).
14 28 U.S.C. § 2675(a).
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have been finally denied by the agency. . . .”15 To properly present a claim to the federal
agency, the party must file “(1) a written statement sufficiently describing the injury to
enable the agency to begin its own investigation, and (2) a sum certain damages claim.”16
The requirement to include a sum certain damages claim is jurisdictional.17
Here, 	the 	Government 	argues 	that 	Plaintiff 	failed 	to 	exhaust 	her
administrative remedies because the claim she filed with the Department of the Interior did
not include a sum certain damages claim, or any personal injury or total claim amount.18
Plaintiff does not dispute that her Standard Form 95 left blank the claim amounts and agrees
that a properly presented claim would include those amounts.19 However, she argues that
the Government first must resolve whether Nicole Sheperd-Betz was acting within the
scope of her employment before the Motion is ripe for adjudication.20 	The Government
replies that when it is pled as a defendant, it may admit FTCA coverage in its Answer and
15 Id.; see also 28 C.F.R. § 14.2(a) (A claim is “deemed to have been presented when a
Federal agency receives from a claimant . . . an executed Standard Form 95 or other written
notification of an incident, accompanied by a claim for money damages in a sum certain. . . .”).
16 Blair v. I.R.S., 304 F.3d 861, 865 (9th Cir. 2002) (quoting Warren v. U.S. Dep’t of
Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984) (en banc)); see also 28 U.S.C.
§ 2675(a).
17 Blair, 304 F.3d at 865.
18 Docket 13 at 5. Plaintiff characterizes the Government’s Motion as arguing that “the
related matter . . . filed by claimant State Farm . . . should not allow a simultaneous claim by
Ms. Edenshaw against the United States.” 	Docket 14 at 2. 	The Court does not agree with this
characterization. The Government’s Motion simply notes that a proper administrative claim made
by State Farm does not cure Plaintiff’s deficient administrative claim. Docket 13 at 6. Because
each claimant must satisfy the FTCA’s jurisdictional requirement to file a proper claim, see Estate
of Jayson Vinberg v. United States, No. 3:22-cv-0135-HRH, 2022 WL 11753090 (D. Alaska
Oct. 20, 2022), the Court evaluates Plaintiff’s claim without reference to State Farm’s related
claim. 19 Docket 13 at 4–5.
20 Id. at 7.
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Edenshaw v. United States 	Case No. 3:22-cv-00021-JMK
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move to amend the caption as appropriate.21 Here, it filed a motion to dismiss rather than
an answer. In both its Motion and its Reply, the Government admits that Nicole Shepherd-
Betz was a federal employee acting within the scope of her employment and that Plaintiff’s
claims are exclusively brought under the FTCA.22 The Government argues, and the Court
agrees, that this lawsuit is governed by the FTCA; therefore, proper administrative
exhaustion is a jurisdictional requirement.23
As Plaintiff acknowledges, her administrative claim does not include any
amount for damages.24 On July 24, 2020, the Department of the Interior notified Plaintiff
that her claim was deficient because it did not include a sum certain.25 	Plaintiff did not
respond to this letter or submit a revised claim.26 	Because Plaintiff never properly
submitted a claim to the Department of Interior, she has not exhausted her administrative
remedies and is barred from bringing a suit against the United States.27 This Court must
dismiss her claim for lack of subject matter jurisdiction.28
21 Docket 15 at 2.
22 See Docket 13 at 2; Docket 15 at 2; see also Docket 15-1 (employment record).
23 Further, the Court notes that Plaintiff has not identified a source of federal jurisdiction
over Defendant Sheperd-Betz if she were acting outside the scope of employment. See Corral v.
Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017) (holding that party asserting
jurisdiction has burden of proving its existence). The Court cannot locate a private right of action
under 31 U.S.C. § 1344, see 41 C.F.R. § 102–34.225, and Plaintiff has not alleged diversity
jurisdiction under 28 U.S.C. § 1332. See Docket 11 at 3 (asserting claim for negligence).
24 Docket 13-1 at 1.
25 Docket 13-2 at 1; see also Docket 14 at 5 (admitting the same).
26 See Docket 13-3 ¶¶ 7–8; Docket 13-4 ¶¶ 4–6.
27 See 28 U.S.C. § 2675(a).
28 See Blair v. I.R.S., 304 F.3d 861, 865 (9th Cir. 2002).
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Edenshaw v. United States 	Case No. 3:22-cv-00021-JMK
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IV. 	CONCLUSION
For the reasons set forth above, the Government’s Motion to Dismiss at
Docket 	13 	is 	GRANTED, 	and 	Plaintiff’s 	Amended 	Complaint 	is 	DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED this 7th day of November, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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