United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
pending before the Court are two motions filed by Defendant
United States of America: a Motion to Dismiss Plaintiffs'
Demand for a Jury Trial, ECF No. 5, and a Motion to Dismiss
Plaintiffs' Claims for Prejudgment Interest and
Attorney's Fees, ECF No. 7. For the reasons outlined
herein, the Court DENIES AS MOOT the United
States' Motion to Dismiss Plaintiffs' Demand for a
Jury Trial, and GRANTS its Motion to Dismiss
Plaintiffs' Claims for Prejudgment Interest and
action stems from an alleged instance of medical malpractice
that occurred at the Department of Veterans Affairs Medical
Center (“VA Medical Center”) in Huntington, West
Virginia. Compl., ECF No. 1, at ¶ 9-26.
Plaintiffs Daniel Edward Lane (“Mr. Lane”) and
Gina Michele Lane (“Mrs. Lane”) contend they
presented to the Emergency Department of the VA Medical
Center on April 30, 2018, where Mr. Lane complained of severe
chest pain. Id. at ¶ 10- 12. Plaintiffs allege
that Mr. Lane was misdiagnosed with “gastro esophageal
reflux disease” and that the VA doctors “had
specifically ruled out any type of coronary issue.”
Id. at ¶ 15. Mr. Lane was later
“diagnosed as having a myocardial infarction.”
Id. at ¶ 17.
this Court's federal question jurisdiction,
Plaintiffs' instituted their lawsuit against the United
States in this Court on June 21, 2019. See generally
Id. On the Civil Cover Sheet accompanying their
Complaint, Plaintiffs indicated a demand for a jury trial;
however, they neglected to do so in the body of their
Complaint. Civ. Cover Sheet, ECF No. 1-1. Plaintiffs
assert straightforward negligence and loss of consortium
claims against the United States, and their prayer for relief
includes claims for prejudgment interest and attorney's
fees. Id. at 4-7. On August 29, 2019, the United
States filed its instant motions to dismiss. Plaintiffs did
not submit a response to either motion pursuant to Local Rule
7.1(c), but the issues before the Court are nonetheless
well-briefed and ripe for review.
claims are based on the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671, et seq.
The FTCA “creates a limited waiver of the United
States' sovereign immunity by authorizing damages actions
for injuries caused by the tortious conduct of federal
employees acting within the scope of their employment, when a
private person would be liable for such conduct under state
law.” Suter v. United States, 441 F.3d 306,
310 (4th Cir. 2006). As a waiver of sovereign immunity, the
FTCA is strictly construed in favor of the United States.
See Lane v. Peña, 518 U.S. 187, 192 (1996).
Motion to Dismiss Plaintiffs' Demand for a Jury
first motion, the United States asks the Court to
“strike the plaintiffs' demand for a jury
trial” pursuant to 28 U.S.C § 2402. Mot. to
Dismiss Pl.'s Demand for Jury Trial, at 1. At the
outset, it is worth noting that the United States is correct
that a jury trial is unavailable here. A plaintiff in an FTCA
action simply “cannot opt for a jury, ”
Carlson v. Green, 446 U.S. 14, 22 (1980), inasmuch
as “[i]t has long been settled that the Seventh
Amendment right to trial by jury does not apply in actions
against the Federal Government, ” Lehman v.
Nakshian, 453 U.S. 156, 160 (1981). Of course, even this
amount of analysis is unnecessary where, as here, Plaintiff
has neglected to demand a jury trial. The United States
points out that the Civil Cover Sheet attached to
Plaintiffs' Complaint includes a “Yes/No”
jury demand checkbox field, preceded by the admonition to
“CHECK YES only if demanded in complaint.”
See Civ. Cover Sheet. While Plaintiffs did place a
checkmark in the “Yes” box of the cover sheet,
their Complaint itself contains no jury demand. Indicating a
demand for a jury trial by checking a box on a cover sheet
“is not a substitute for the service of written notice
of [such a demand] within the meaning of Rule 38(b)” of
the Federal Rules of Civil Procedure. DeWeitt v.
Hutchins, 309 F.Supp.2d 743, 754 (M.D. N.C. 2004)
(concluding that plaintiffs “waived their right to a
jury trial” when they failed to include a demand for a
jury trial in their complaint but checked “yes”
on a civil cover sheet). Accordingly, the United States'
motion will be denied as moot.
Motion to Dismiss Plaintiffs' Claims for Prejudgment
Interest and Attorney's Fees
second motion, the United States moves the Court “to
enter an order dismissing any claims for prejudgment interest
and attorney's fees” pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil
Procedure. Mot. to Dismiss Pl.'s Claims for
Prejudgment Interest and Attorney's Fees, at 1.
While a motion filed pursuant to Rule 12(b)(1) challenges the
Court's subject matter jurisdiction, Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982), a motion
filed pursuant to Rule 12(b)(6) tests the legal sufficiency
of a claim, Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Given the jurisdictional basis of the
arguments the United States has advanced, the Court will
consider its motion under Rule 12(b)(1).
begin, the FTCA expressly prohibits the recovery of
prejudgment interest in actions against the United States. 28
U.S.C. § 2674 (providing that the United States
“shall not be liable for interest prior to judgment or
punitive damages”). Plaintiffs point to no
authority-nor can they-suggesting that this case represents
an exception to this broad statutory prohibition. As the
Court has no subject matter jurisdiction to award prejudgment
interest, the United States' motion to dismiss such
claims for relief must be granted. Moreover, the FTCA does
not contain any authorization for the award of attorney's
fees. As the FTCA is strictly construed in favor of the
Government, a court may not award attorney's fees against
the United States under the FTCA. Cecil v. United
States, No. 2:09-0791, 2010 WL 3945537, at *1 (S.D.
W.Va. Oct. 7, 2010) (citing Gaddis v. United States,
381 F.3d 444, 464 (5th Cir. 2004)). Once again, the Court
finds itself without subject matter jurisdiction and must
dismiss Plaintiffs' claims for attorney's fees.
foregoing reasons, the Court DENIES AS MOOT
the United States' Motion to Dismiss Plaintiffs'
Demand for a Jury Trial, ECF No. 5, and
GRANTS its Motion to Dismiss Plaintiffs'