United States District Court, W.D. Kentucky, Paducah
B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on a Motion to Dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), [R.
21], by the United States Department of Health and Human
Services for Medicare and Medicaid Services
(“CMS”). Responses were filed by Defendants Carl
Heisner, Larry Trovillion, and Mary Trovillion, [R. 26];
Plaintiff Country Mutual Insurance Company (“Country
Mutual”), [R. 36]; and Defendant Viola Heisner, [R.
37]. This matter is now ripe for adjudication. For the
reasons stated herein, CMS's Motion to Dismiss, [R. 21],
factual allegations as set out in the Amended Interpleader
Complaint, [R. 1-1], and taken as true are as
follows. On or about August 13, 2016, a motor
vehicle accident occurred involving vehicles driven by Viola
Heisner and Edward Decker, [R. 1-1 at 3 (Amended Interpleader
Complaint). There were three passengers riding in the car
with Viola Heisner: Carl Heisner, Larry Trovillion, and Mary
Trovillion. [Id. at 4.]
around February 19, 2018, Country Mutual brought an action
for interpleader against Edward Decker, Viola Heisner, Carl
Heisner, Larry Trovillion, Mary Trovillion, and CMS in
McCracken Circuit Court. [R. 1-1 at 3-7.] On April 6, 2018,
CMS removed the action to this Court pursuant to 28 U.S.C.
§§ 1441, 1442. [R. 1 (Notice of Removal).] On May
8, 2018, CMS filed the Motion to Dismiss that is currently
before the Court. [R. 21 (CMS Motion to Dismiss).]
to Federal Rule of Civil Procedure 12(b)(1), a party may
assert by motion the defense of “lack of subject-matter
jurisdiction.” Fed.R.Civ.P. 12(b)(1). “A Rule
12(b)(1) motion can either attack the claim of jurisdiction
on its face, in which case all allegations of the plaintiff
must be considered as true, or it can attack the factual
basis for jurisdiction, in which case the trial court must
weigh the evidence and the plaintiff bears the burden of
proving that jurisdiction exists.” DLX, Inc. v.
Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). Because the
parties here do not request that the Court make any factual
determinations in ruling on the motion to dismiss, but rather
dispute only the sufficiency of Country Mutual's
complaint, the Court “will treat this as a
‘facial' 12(b)(1) motion.” Id.
“A facial attack on the subject-matter jurisdiction
alleged in the complaint questions merely the sufficiency of
the pleading.” Gentek Bldg. Prods., Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).
“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.” Fed.R.Civ.P. 12(h)(3); see also Bauer v.
RBX Indus. Inc., 368 F.3d 569 (6th Cir. 2004).
defendant may also move to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). To that end, a complaint must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
In order to survive a motion to dismiss under Rule 12(b)(6),
a party must “plead enough ‘factual matter'
to raise a ‘plausible' inference of
wrongdoing.” 16630 Southfield Ltd. P'ship v.
Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). However, “[a] motion under Fed.R.Civ.P.
12(b)(1) questioning subject matter jurisdiction must be
considered before other challenges since the court must find
jurisdiction before determining the validity of a
claim.” Gould, Inc. v. Pechiney Ugine
Kuhlmann, 853 F.2d 445, 450 (6th Cir. 1988) (citing
Bell v. Hood, 327 U.S. 678, 682 (1946)).
moves the Court to dismiss it from the current action on two
grounds. First, CMS argues that Country Mutual has not
alleged that CMS waived its sovereign immunity. [R. 21 at 6.]
Second, CMS asserts that no party to this action has
exhausted its administrative remedies pursuant to 42 U.S.C.
§ 405(g). The Court will address each argument in turn.
[Id. at 7.]
asserts that Country Mutual's claims against it should be
dismissed due to Country Mutual's failure to demonstrate
a waiver of sovereign immunity. [Id. at 6.] There
were three responses to CMS's Motion to Dismiss. First,
Defendants Carl Heisner, Larry Trovillion, and Mary
Trovillion respond that they asserted no claims against CMS
and, therefore, have no objection to the dismissal of claims
against CMS. [R. 26 at 1 (Heisner and Trovillion Response).]
However, the defendants object to the dismissal or remand of
the remaining claims to state court prior to Pekin Insurance
answering Larry Trovillion and Mary Trovillion's Third
Party Complaints, [R. 43, 44]. [R. 26 at 1.] Second, in
Defendant Country Mutual's Response, Country Mutual
requested the Court enter an order granting it leave to
deposit funds or, alternatively, decree in an order granting
CMS's Motion to Dismiss that “Country Mutual has no
ongoing obligation to CMS once it deposits its policy
proceeds in this matter.” [R. 36 at 2.] Lastly,
Defendant Viola Heisner responded that she has no objection
to CMS's Motion to Dismiss. [R. 37 at 1.] The Court
agrees with CMS, finding that Country Mutual failed to
demonstrate a waiver of sovereign immunity.
United States, as sovereign, is immune from suit save as it
consents to be sued . . ..' This principle extends to
agencies of the United States as well, which are immune
absent a showing of a waiver of sovereign immunity.”
Whittle v. United States, 7 F.3d 1259, 1262 (6th
Cir. 1993) (internal citations omitted). “A waiver of
the Federal Government's sovereign immunity must be
unequivocally expressed in statutory text, and will not be
implied.” Lane v. Pena, 518 U.S. 187, 192
(1996) (internal citations omitted). Furthermore,
“waiver of the Government's sovereign immunity will
be strictly construed, in terms of its scope, in favor of the
sovereign.” Id. Here, Country Mutual failed to
allege that the Secretary of CMS waived sovereign immunity.
[See generally R. 1-1.] Thus, CMS's Motion to
Dismiss, as it relies on Country Mutual's failure to
demonstrate a waiver of sovereign immunity, is GRANTED.
See Black v. Doe, No. 11-25-DLB-JGW, 2011 WL
1642540, at *3 (E.D. Ky. May 2, 2011) (holding that defendant
Medicare should be dismissed from the lawsuit when plaintiff
failed to allege that the Secretary waived sovereign
immunity); Madden v. Wagers, No. 08-318-GFVT, 2009
WL 10676841, at *3 (E.D. Ky. Jan. 12, 2009) (same);
Truett v. Bowman, 288 F.Supp.2d 909, 911 (W.D. Tenn.
2003) (granting the Secretary's motion to dismiss due to
defendants' failure to demonstrate sovereign immunity was