United States District Court, S.D. Indiana, Terre Haute Division
Jane Magnus-Stinson, Chief Judge
23, 2018, Plaintiff Gary Atkinson filed a Complaint against
Skyline Services, Inc. (“Skyline”) in
Vigo Superior Court related to injuries he sustained when an
elevator he was riding in at the Richard L. Roudebush
Veterans Administration Medical Center (the
“VA”) fell several floors. [Filing
No. 1-1 at 1-2.] Mr. Atkinson amended his Complaint on
October 26, 2018 to add the VA and Otis Elevator Company
(“Otis”) as Defendants, and the VA
subsequently removed this matter to this Court pursuant to 28
U.S.C. § 1442 and 28 U.S.C. § 1446. [Filing No.
1; Filing No. 1-1 at 32-33.] The VA has now
moved to dismiss all of Mr. Atkinson's claims against it,
and that motion is ripe for the Court's decision.
[Filing No. 7.]
Standard of Review
moves to dismiss Mr. Atkinson's claims against it for
lack of jurisdiction and for failure to state a claim upon
which relief can be granted. Federal Rule of Civil Procedure
12(b)(1) “allows a party to move to dismiss a claim for
lack of subject matter jurisdiction.” Hallinan v.
Fraternal Order of Police of Chicago Lodge No. 7, 570
F.3d 811, 820 (7th Cir. 2009). Jurisdiction is the
“power to decide, ” and federal courts may only
decide claims that fall within both a statutory grant of
authority and the Constitution's limits on the judiciary.
In re Chicago, R.I. & P.R. Co., 794 F.2d 1182,
1188 (7th Cir. 1986). The burden is on the party bringing the
claim to demonstrate that subject matter jurisdiction exists.
See Lee v. City of Chicago, 330 F.3d 456,
468 (7th Cir. 2003). “Motions to dismiss under 12(b)(1)
are meant to test the sufficiency of the complaint, not to
decide the merits of the case.” Ctr. for
Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d
586, 588 (7th Cir. 2014). “In the context of a motion
to dismiss for lack of subject matter jurisdiction, we accept
as true the well pleaded factual allegations, drawing all
reasonable inferences in favor of the plaintiff.”
Iddir v. INS, 301 F.3d 492, 496 (7th Cir. 2002). In
considering such a motion, “[t]he district court may
properly look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on
the issue to determine whether in fact subject matter
jurisdiction exists.” St. John's United Church
of Christ v. City of Chicago, 502 F.3d 616, 625 (7th
Cir. 2007) (citations omitted).
Rule 12(b)(6), a party may move to dismiss a claim that does
not state a right to relief. The Federal Rules of Civil
Procedure require that a complaint provide the defendant with
“fair notice of what the . . . claim is and the grounds
upon which it rests.” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007)). In reviewing the
sufficiency of a complaint, the Court must accept all
well-pled facts as true and draw all permissible inferences
in favor of the plaintiff. See Active Disposal
Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir.
2011). A Rule 12(b)(6) motion to dismiss asks whether the
complaint “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). The Court will not accept
legal conclusions or conclusory allegations as sufficient to
state a claim for relief. See McCauley v. City
of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief
“to a degree that rises above the speculative
level.” Munson v. Gaetz, 673 F.3d 630, 633
(7th Cir. 2012). This plausibility determination is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
following are the factual allegations in the Amended
Complaint, which the Court must accept as true at this time:
December 13, 2016, Mr. Atkinson went to the VA during regular
business hours, and entered an elevator when it
“suddenly and without warning, fell several floors
causing a violent crash injuring [him].” [Filing
No. 1-1 at 32.] On August 10, 2017, Mr. Atkinson, with
the assistance of counsel, filed a tort claim on a Standard
Form 95, stating:
Mr. Atkinson was in the VA Medical Center Roudebush for
treatment, he was a veteran and is retired. He entered an
Otis elevator in the Medical Center which fell to below 4
floors forcing him down on his right side injuring his right
hip, back, neck, ribs and caused him extreme physical pain
and mental anguish and fear.
[Filing No. 1-1 at 34.]
Atkinson then filed his Complaint against Skyline in Vigo
Superior Court, amended his Complaint to add the VA and Otis,
and the VA removed the lawsuit to this Court. [Filing No.
1; Filing No. 1-1 at 1-2; Filing No. 1-1 at
32-33.] In his Amended Complaint, Mr. Atkinson asserts a
negligence claim. [Filing No. 1-1 at 32-33.] The VA
has moved to dismiss Mr. Atkinson's claims against it.
[Filing No. 7.]
Motion to Dismiss, the VA argues that it is not a proper
party to this action, and that “the only proper
defendant in [a Federal Tort Claims Act
(“FTCA”)] lawsuit is the United States
itself.” [Filing No. 8 at 3-4.] It argues that
Mr. Atkinson's failure to name the United States as a
defendant deprives the Court of subject matter jurisdiction.
[Filing No. 8 at 4.] The VA also argues that, in any
event, Mr. Atkinson's claims are untimely because he
failed to file them within six months of receiving a denial
of his tort claim. [Filing No. 8 at 4.] The VA
points to a denial letter sent to Mr. Atkinson's counsel
on March 26, 2018, and notes that Mr. Atkinson did not seek
to name the VA as a defendant until October 3, 2018 when he
moved to amend his Complaint. [Filing No. 8 at 4-5.]
Atkinson did not respond to the VA's Motion to Dismiss.
While the Court could grant the VA's motion on that basis
alone, Local Rule 7-1(c)(5) (“[t]he court may summarily
rule on a motion if an opposing party does not file a
response within ...