Case 1:20-cv-21911-FAM Document 18 Entered on FLSD Docket 11/06/2020 Page 1 of 14
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`UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF FLORIDA
`Miami Division
`Case Number: 20-21911-CIV-MORENO
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`ALEXEY LEBEDINSKY,
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`Plaintiff,
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`vs.
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`UNITED STATES OF AMERICA,
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`Defendant.
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`I
`- - - - - - - - - - - - - - - - - -
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`ORDER DENYING MOTION TO REMAND AND GRANTING MOTION TO DISMISS
`FOR LACK OF SUBJECT MATTER JURISDICTION
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`THIS CAUSE came before the Court upon Plaintiffs Motion to Remand to State Court,
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`and the Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction. Because this action
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`was properly removed pursuant to the Federal Tort Claims Act, the Plaintiffs motion is denied.
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`As the Plaintiff failed to exhaust his administrative remedies, as required by the Federal Tort
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`Claims Act prior to filing this action, the Defendant's motion to dismiss is granted.
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`I.
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`BACKGROUND
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`On December 7, 2019, the Plaintiff, Alexey Lebedinsky, filed a two-count complaint in the
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`Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, arising out
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`of an incident where he was allegedly "Baker Acted · without explanation and without his
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`knowledge" from May 21, 2019 to May 22, 2019. In his complaint, the Plaintiff alleges that the
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`defendant, Citrus Health Network, Inc., failed to comply with Florida Statutes § 394.459, which,
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`as alleged, states that service providers for "individuals receiving mental services" must provide
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`the patient "with statutorily mandated rights." Additionally, the Plaintiff alleges a false
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`imprisonment claim under Florida law, claiming that Citrus unlawfully restrained him against his
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`will at the facility. After filing suit, on December 11, 2019, the Plaintiff filed his administrative
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`tort claim related to the incident in this case with the Department of Health and Human Services.
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`On May 7, 2020, the United States of America filed its Notice of Removal and Substitution
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`of Party Defendant, noting, in relevant part, that "Citrus [] has been deemed an employee of the
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`Public Health Service [] pursuant to 42 U.S.C. § 233(g), and Citrus [] is certified to have been
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`acting within this federal employment at the time of the incidents out of which this action arises
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`pursuant to 42 U.S.C. § 233(c) and 28 C.F.R. § 15.4." The Defendant also attached a copy of the
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`Certification by the United States Attorney to the Notice of Removal, which includes a certification
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`that Citrus "was acting within the scope of its employment with the Federal Government at the
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`time of the incident out of which the suit arose." Moreover, the Defendant has filed a copy of the
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`Department of Health and Human Services' Notice of Deeming Action on the record, which states
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`that Citrus was an "employee" of the Public Health Service from January 1, 2019, through
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`December 31, 2019.
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`Thereafter, the Defendant filed its Motion to Dismiss for Lack of Subject Matter
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`Jurisdiction based on the Plaintiffs failure to exhaust administrative remedies, and the Plaintiff
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`filed a Motion to Remand to State Court, claiming that this action was improperly removed
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`pursuant to 28 U.S.C. § 1446 and that Plaintiffs claims are exempt from the Federal Tort Claims
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`Act.
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`A. Motion to Remand
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`II.
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`LEGALSTANDARD
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`"A necessary corollary to the concept that a federal court is powerless to act without
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`· jurisdiction is the equally unremarkable principle that a court should inquire into whether it has
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`subject matter jurisdiction at the earliest possible stage in the proceedings." Univ. of So. Ala. v.
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`Am. Tobacco Co., 168 F.3d 405,410 (11th Cir. 1999). Courts are to construe the removal statutes
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`narrowly resolving uncertainties in favor of remand. Burns v. Windsor Ins. Co., 31 F.3d 1092,
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`1095 (11th Cir. 1994).
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`B. Subject Matter Jurisdiction
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`"[A] motion to dismiss for lack of subject matter jurisdiction ... can be based upon either a
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`facial or factual challenge to the complaint." McElmurray v. Consol. Gov 't of Augusta-Richmond
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`· Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). When dealing with a facial attack, "the plaintiff is
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`left with safeguards similar to those retained when a Rule 12(b )(6) motion to dismiss for failure to
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`state a claim is raised," that is, "the court must consider the allegations in the plaintiffs complaint
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`as true." Id (internal citations omitted). "'Factual attacks,' on the other hand, challenge 'the
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`existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside
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`the pleadings, such as testimony and affidavits are considered."' Id ( citing Lawrence v. Dunbar,
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`919 F.2d 1525, 1529 (11th Cir. 1990)).
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`Moreover, as the Eleventh Circuit noted in McElmurray, "[t]he district court has the power
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`to dismiss for lack of subject matter jurisdiction on any of three separate bases: (1) the complaint
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`alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the
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`complaint supplemented by undisputed facts plus the court's resolution of the disputed facts." Id
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`(quoting Williamson v. Tucker, 645 F.2d 404,413 (5th Cir. 1981)).
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`III. ANALYSIS
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`Currently before the Court are the Plaintiffs motion to remand and the Defendant's motion
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`to dismiss for lack of subject matter jurisdiction. The Court denies the motion to remand because
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`the Defendant timely removed this action pursuant to 28 U.S.C. § 233(c) and the Federal Tort
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`Claims Act, and the motion to dismiss is granted because the Plaintiff has failed to exhaust his
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`administrative remedies prior to filing suit, see 28 U.S.C. § 2675(a).
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`A. Motion to Remand
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`In the motion to remand, the Plaintiff contends that remand is appropriate in this case
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`because: (1) the Defendant untimely removed this action pursuant to 28 U.S.C. § 1446(b)(l); (2)
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`the Defendant failed to comply with§ 1446(a)'s requirements, namely, that the Defendant failed
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`to file a copy of all process and pleadings with the Notice of Removal; and (3) the Plaintiffs claims
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`against the Defendant are precluded by the exemption contained in 28 U.S.C. § 2680. The Court
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`shall address each of the Plaintiffs arguments.
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`1. The Defendant, pursuant to 28 U.S.C. § 233(c), timely removed this action.
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`Section 1446(b) requires that "[t]he notice of removal of a civil action or proceeding shall
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`be filed within 30 days after the receipt by the defendant through service or otherwise, of a copy
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`of the initial pleading setting forth the claim for relief upon which such action or proceeding is
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`based, or within 30 days after the service of summons upon the defendant if such initial pleading
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`has been filed in court and is not required to be served on the defendant, whichever period is
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`shorter." 28 U.S.C. § 1446(b)(l).
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`In the motion to remand, the Plaintiff argues that the Defendant "failed to file a Notice of
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`Removal within thirty (30) days as required by [] § 1446(b)(l)." According to the Plaintiff, the
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`Defendant was served on December 23, 2019, and it did not file its Notice of Removal until May
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`7, 2020.
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`In its response, the Defendant claims that§ 1446's 30-day time limit does not apply to this
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`case. Rather, according to the Defendant, this case is controlled by the Public Health Service Act,
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`as amended by the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233, and the
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`fact that the U.S. Attorney certified.scope of employment under the Act in this case. Section 233(a)
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`governs "[ c ]ivil actions or proceedings against commissioned officers or employees" and the
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`"[e]xclusiveness of remedy" against the United States involving a Federal Tort Claims Act claim.
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`See 42 U.S.C. § 233; see also Allen v. Christenberry, 327 F.3d 1290, 1294 (11th Cir. 2003) ("The
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`[Federally Supported Health Centers Assistance Act] makes the remedy provided against the
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`United States under the [Federal Tort Claims Act] the exclusive remedy for the medical
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`malpractice of employees or contractors of [the Public Health Service].").
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`In Allen, the Eleventh Circuit explained how "[t]he [Federally Supported Health Centers
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`Assistance Act] provides authority to remove cases to federal court only in specific and limited
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`circumstances." Allen, 327 F.3d at 1293. The Allen court noted that, "[i]n order to be covered under
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`the [Federal Tort Claims Act], an entity, an employee of the entity, or a contractor of the entity
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`seeking coverage must be deemed an employee of [the Public Health Service]." Id. at 1294. Should
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`a determination be made that "any officer or employee of [the Public Health Service] [was] acting
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`in the scope of his employment,§ 233(b) provides that the Attorney General shall defend such a
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`civil action. Id. Specifically, as it relates to removal, the court stated that "[t]he Attorney General
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`may remove a case under§ 233(c) this way":
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`Upon a certification by the Attorney General that the defendant was acting in the
`scope of his employment at the time of the incident out of which the suit arose, any
`such civil action or proceeding commenced in a State court shall be removed
`without bond at any time before trial by the Attorney General to the district court
`of the United States of the district and division embracing the place wherein it is
`pending [and the proceeding deemed a tort action brought against the United States
`under the provisions of Title 28 and all references thereto].
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`Id. (citing§ 233(c)) (emphasis added). While the Eleventh Circuit ultimately reversed the district
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`court's order denying the motion to remand and remanded the case to the district court with
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`instructions to remand to state court (id. at 1296), the court reasoned that "[i]fthe Attorney General
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`had notified the [state] court that [the Department of Health and Human Services] had determined
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`that the [defendants] doctors were deemed employees of [the Public Health Service], effectively
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`certifying that they had been acting within the scope of their employment with it, removal would
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`have been proper (indeed mandatory)." Allen, 327 F.3d at 1295 (internal citations omitted).
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`Based on Allen, the Defendant claims that the removal was timely in this case as "[ s ]cope
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`of employment was certified pursuant to § 233(c) and the case was removed prior to trial." The
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`Defendant also cites to Douse v. Eleventh Circuit Court of Appeals Clerk of Courts, 760 Fed.
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`Appx. 880, 885 (11th Cir. 2019) for the proposition that where a case is removed from state court
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`pursuant to a specific statutory provision and that statute provides specific procedures for removal,
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`those procedures control. In Douse, the plaintiff argued that the district court erred in its application
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`of the doctrine of res judicata, namely, that certain prior decisions were not entered by a court of
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`competent jurisdiction, because removal was untimely under 28 U.S.C. § 1446(b), which
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`"generally requires that removal be accomplished within 3 0 days of the [defendant's] receipt of
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`the complaint." 760 Fed. Appx. at 885. Yet, the court in Douse noted that "th[e] case was removed
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`pursuant to the Westfall Act, which provides that removal may take place 'at any time before
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`trial."' Id. (citing 28 U.S.C. § 2679(d)(2)). Thus, the Douse court held that removal was timely
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`because the plaintiff did not dispute§ 2679(d)(2)'s requirement and there was no trial held in that
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`case. Id.
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`While the Plaintiff failed to file any reply addressing Allen or Douse, in the motion to
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`remand, the Plaintiff maintains that a certification is defective when it states that such a
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`certification does not extend to any independent contractors. This argument misses the mark. Such
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`language would be consistent with the fact that such a certification only applies to a "defendant
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`[who] was acting in the scope of his employment at the time of the incident out of which the suit
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`arose." § 233(c). Here, the certification applied to the only defendant in the state court action,
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`Citrus, prior to the Defendant's removal and substitution. Furthermore, the Plaintiffs own motion
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`belies such an argument, as here the Plaintiff concedes that "the certification of scope of
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`employment is dispositive only for removal purposes." See also Osborn v. Haley, 549 U.S. 225,
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`230 (2007).
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`Section 233(c) dictates whether the removal was timely in this case. This case is similar to
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`Douse, where another statutory provision, the Westfall Act, provided for the timeliness of any
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`removal of a civil action and the plaintiff failed to address such an issue. 760 Fed. Appx. at 885.
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`Here, the Plaintiff failed to file any reply addressing the applicability of§ 233(c), which provides
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`that "[u]pon a certification by the Attorney General that the defendant was acting in the scope of
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`his employment at the time of the incident out of which the suit arose, any such civil action or
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`proceeding commenced in a State court shall be removed without bond at any time before trial."
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`§ 233(c) (emphasis added).
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`To be sure, the Defendant attached a copy of the "Certification by United States Attorney
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`Ariana Fajardo Orshan Pursuant to 42 U.S.C. § 233(c)" to its Notice of Removal and Substitution
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`of Party Defendant. In the notice, the U.S. Attorney certified that "Citrus [] [the defendant in the
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`state court action] was acting within the course and scope of its Federal employment at the time of
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`the alleged incident as specified herein." The certification further states that it was filed pursuant
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`to 28 C.F.R. § 15.4(a), which provides, in relevant part, that "[t]he United States Attorney for the
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`district where the civil action or proceeding is brought .. .is authorized to make the statutory
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`certification that the Federal employee was acting within the scope of his office or employment
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`with the Federal Government at the time of the incident out of which the suit arose." 28. C.F.R. §
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`15.4(a). Additionally, as required under§ 233(c), the Defendant states, and the Plaintiff does not
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`dispute, that this matter was removed before trial. Accordingly, removal is not only proper in this
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`case, but "indeed mandatory." Allen, 327 F.3d at 1295.
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`2. The Defendant's failure to file a copy of all process and pleadings with the Notice of
`Removal does not mandate remand because it was at best a procedural defect in the
`case's removal.
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`N~xt, the Plaintiff argues that this case should be remanded because the Defendant failed
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`to comply with the procedure for the removal of this civil action, as required by§ 1446(a). Section
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`1446 provides the "[p]rocedure for removal of civil actions" and requires, in pertinent part, that a
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`"defendant[] desiring to remove any civil action from a State court shall file in the district court .
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`. . a copy of all process, pleadings, and orders served upon such defendant [] in such action. 28
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`U.S.C. § 1446(a).
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`Specifically, the Plaintiff claims that the Defendant failed to comply with § 1446( a), as the
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`Defendant "failed to include a copy of all process and pleadings with the Notice [ of Removal]."
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`The Plaintiff does not cite any authority that stands for the proposition that such a deficiency
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`requires the remand of the action back to state court. Instead, in its response, the Defendant cites
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`to Knezevich v. Carter, where the court held that that the defendant's failure to file a copy of the
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`notice of removal in state court pursuant to § 1446( d) "d[id] not defeat federal jurisdiction." 805
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`Fed. Appx. 717, 723 (11th Cir. 2020) (citing Peterson v. BM! Refractories, 124 F.3d 1386, 1395
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`(11th Cir. 1997)). In that case, "because the government's failure to promptly file the notice in the
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`state court was at best a procedural defect in the case's removal, the district court had jurisdiction
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`over the action and could not remand it back to the state court." Carter, 805 Fed. Appx. at 723.
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`Here, the Defendant states that it "filed the state court docket six days after filing the Notice
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`of Removal together with all available process and pleadings." Moreover, the Plaintiff failed to
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`file any reply addressing Carter. Accordingly, because the Defendant's failure to file a copy of all
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`process and pleadings with the Notice of Removal appears to be "at best a procedural defect in the
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`case's removal," Carter, 805 Fed. Appx. at 723, and the Plaintiff cites no authority requiring that
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`the case be remanded due to such a procedural defect, the Court declines to remand the case on
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`this basis.
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`3. Even if the Plaintiff's claims are exempt, the Federal Tort Claims Act still governs
`this action, and the Defendant properly removed this case pursuant to§ 233(c).
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`Next, the Plaintiff maintains that his claims under Chapter 394 of the Florida Statutes and
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`false imprisonment claim are exempt from the Federal Tort Claims Act.
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`As relevant here, "[ w ]hen federal employees are sued for damages for harms caused in the
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`course of their employment, the Federal Tort Claims Act [], 28 U.S.C. §§ 1346, 2671-2680,
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`generally authorizes substitution of the United States as the defendant." Hui v. Castaneda, 130
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`S.Ct. 1845, 1848 (2010). Section 233(a) provides as follows:
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`The remedy against the United States provided by sections 1346(b) and 2672 of
`Title 28 ... for damage for personal injury, including death, resulting from the
`performance of medical, surgical, dental, or related functions . . . by any
`commissioned officer or employee of the Public Health Service while acting within
`the scope of his office or employment, shall be exclusive of any other civil action
`or proceeding by reason of the same subject-matter against the officer or employee
`( or his estate) whose act or omission gave rise to the claim.
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`42 U.S.C. § 233(a). Phrased differently, § 233(a) "makes the [Federal Tort Claims Act] remedy
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`against the United States 'exclusive of any other civil action or proceeding' for any personal injury
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`caused by a [Public Health Service] officer or employee performing a medical or related function
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`'while acting within the scope of his office or employment."' Hui, 130 S.Ct. at 1848.
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`As to the Chapter 3 94 claim, Plaintiff contends that this "statutory claim arises out of
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`execution of a statute or regulation and is exempt from the [Federal Tort Claims Act]" pursuant to
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`28 U.S.C. § 2680(a). Section 2680 provides that "[t]he provisions of this chapter and section
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`1346(b) of this title shall not apply to--":
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`( a) Any claim based upon an act or omission of an employee of the Government,
`exercising due care, in the execution of a statute or regulation, whether or not such
`statute or regulation be valid, or based upon the exercise or performance or the
`failure to exercise or perform a discretionary function or duty on the part of a federal
`agency or an employee of the Government, whether or not the discretion involved
`be abused.
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`28 U.S.C. § 2680(a).
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`The Plaintiff cites to Baca v. United States for the proposition that his § 394.459 claim
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`under Florida is exempt from the Federal Tort Claims Act, but the Court finds that case is
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`distinguishable because the plaintiffs there did not seek to remand their case to state court because
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`their claims were exempt. 467 F.2d 1061 (10th Cir. 1972). Rather, the plaintiffs in Baca filed suit
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`against the United States as a defendant under the Federal Tort Claims Act in federal district court.
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`Id. at 1062. Accordingly, the Court does not construe Baca as standing for the proposition that
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`exempted claims under the Federal Tort Claims Act must be remanded to state court.
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`Similarly, when discussing how his false imprisonment claim is not subject to the Federal
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`Tort Claims Act, the Plaintiff cites Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006), which is also
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`distinguishable from the procedural posture of this case. There, the plaintiffs filed suit against the
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`defendant in federal district court, alleging constitutional violations, state common law claims,
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`including a claim for false imprisonment. Id. at 491. Hence, that case did not involve a motion to
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`remand because the plaintiffs' false imprisonment claim was exempt under the Federal Tort Claims
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`Act. Id.
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`The Defendant posits that "[t]he mere fact that Plaintiff asserted claims excepted under the
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`[Federal Tort Claims Act] cannot serve as a basis for remand," while citing a case that is more
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`factually analogous to this case. See Estate of Callaham ex rel. Foster v. United States, No. 3:12-
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`cv-579, 2012 WL 1835366 (D.S.C. May 21, 2012) (denying motion to remand where the Federal
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`Tort Claims Act governed all of the claims asserted in that case, which included exempted claims
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`under 28 U.S.C. § 2680(h), like slander and misrepresentation). The Plaintiff failed to file any
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`reply addressing Foster.
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`Accordingly, as the certification is dispositive at the time of removal and "the [Federal Tort
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`Claims Act] governs all of the claims asserted in this case," even those that are exempt from the
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`Act, "this court cannot remand any claims." Foster, 2012 WL 1835366, at *3. As the Defendant
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`properly removed this action pursuant to§ 233(c), the Plaintiffs motion to remand is denied.
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`B. Motion to Dismiss for Lack of Subject Matter Jurisdiction
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`As previously noted, the Federal Tort Claims Act governs the claims in this action, as such
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`claims are against the United States, the substituted Defendant. In Hui, the Supreme Court stated
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`that § 233(a) "grants absolute immunity to [Public Health Service] officers and employees for
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`actions arising out of the performance of medical or related functions within the scope of their
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`employment by barring all actions against them for such conduct." Hui, 130 S.Ct. at 1851. As
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`such, "[b]y its terms,§ 233(a) limits recovery for such conduct to suits against the United States."
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`Id. "The breadth of the words 'exclusive' and 'any' supports this reading, as does the provision's
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`inclusive reference to all civil proceedings arising out of 'the same subject-matter."' Id.
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`By enacting the Federal Tort Claims Act, "Congress authorized a limited waiver of
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`sovereign immunity when federal employees commit torts while acting within the scope of their
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`employment." Martinez v. Minnis, 257 Fed. Appx. 261,263 (11th Cir. 2007) (per curiam) (citing
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`Means v. United States, 176 F.3d 1376, 1378-79 (11th Cir. 1999)). Section 2675(a) provides, in
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`relevant part:
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`An action shall not be instituted upon a claim against the United States for money
`damages for injury or loss of property or personal injury or death caused by the
`negligent or wrongful act or omission of any employee of the Government while
`acting within the scope of his office or employment, unless the claimant shall have
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`first presented the claim to the appropriate Federal agency and his claim shall have
`been finally denied by the agency in writing and sent by certified or registered mail.
`The failure of an agency to make final disposition of a claim within six months after
`it is filed shall, at the option of the claimant any time thereafter, be deemed a final
`denial of the claim for purposes of this section.
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`28 U.S.C. § 2675(a). Thus, "[a]s a prerequisite to bringing suit under the [Federal Tort Claims
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`Act], a potential plaintiff must first present the claim to the appropriate Federal agency." Martinez,
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`257 Fed. Appx. at 263 (citing 28 U.S.C. § 2675(a)). "A district court lacks jurisdiction over a[]
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`[Federal Tort Claims Act] action if the plaintiff has not complied with the notice requirements of
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`§ 2675(a)." Id at 263-264 (citing Burchfield v. United States, 168 F.3d 1252, 1254-55 (11th Cir.
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`1999)).
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`To be sure, in McNeil v. United States, the Supreme Court made clear that "[t]he Federal
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`Tort Claims Act [] provides that an action shall not be instituted upon a claim against the United
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`States for money damages unless the claimant has first exhausted his administrative remedies."
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`113 S.Ct. 1980, 1981 (1993) (internal quotations omitted). In McNeil, the Court stated that §
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`2675(a)'s "command" was "unambiguous," namely, "that an action shall not be instituted ...
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`unless the claimant shall have first presented the claim to the appropriate Federal agency and his
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`claim shall have been finally denied by the agency in writing and sent by certified or registered
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`mail." Id at 1983. The Court added that "[t]he most natural reading of the statute indicates that
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`Congress intended to require complete exhaustion of Executive remedies before invocation of the
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`judicial process." Id at 1983-84; see also Turner Ex Rel. Turner v. United States, 514 F.3d 1194,
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`1200 (11th Cir. 2008) ("Because '[t]he [Federal Tort Claims Act] bars claimants from bringing
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`suit in federal court until they have exhausted their administrative remedies,' the district court
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`lacks subject matter jurisdiction over prematurely filed suits.'") ( citing McNeil, 113 S.Ct. at 1984).
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`In its motion to dismiss,. the Defendant argues that this action should be dismissed for lack
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`of subject matter jurisdiction because the Plaintiff filed this lawsuit on December 7, 2019, prior to
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`exhausting his administrative remedies, as required by § 2675(a). The Defendant also points out
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`that "[n]ot only was the administrative claim not exhausted when Plaintiff filed suit, it was not
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`even submitted," as the Plaintiff filed his claim with the Department of Health and Human Services
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`on December 11, 2019. In support, the Defendant attached the Declaration of Meredith Torres. In
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`the declaration, Ms. Torres stated that, pursuant to a search of the Department of Health and
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`Human Services' database for administrative tort claims, the Plaintiffs administrative claim was
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`filed on December 11, 2019.
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`In his response, the Plaintiff does not contest that his claim was filed on December 11,
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`2019. Rather, he maintains that his claims are based on exceptions to the Federal Tort Claims Act
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`and said claims are "not subject to administrative remedies." As the Court has already found that
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`the Federal Tort Claims Act governs this action even if the Plaintiffs claims are exempt, the Court
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`shall address the Plaintiffs argument that his claims are not subject to administrative remedies.
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`First, the Plaintiff contends that "the claims are limited to personnel in the facility, which
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`· may or may not be employees of Citrus []." To the extent that the Plaintiff is arguing that the
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`Federal Tort Claims Act should not govern this case because the action could possibly involve
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`independent contractors that are not employees of Citrus, and, therefore, such claims are not
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`governed by the Act, such an argument is without merit because the Plaintiff only named Citrus
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`as a defendant in the state court action.
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`Second, the Plaintiff states that he did comply with the pre-suit requirements because"[ s ]ix
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`month have elapsed since the filing of the claim" on December 11, 2019, and, "[a]s such, as of
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`today's date [June 12, 2020] the claim is deemed a final denial for purposes of § 2675(a)."
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`13
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`Case 1:20-cv-21911-FAM Document 18 Entered on FLSD Docket 11/06/2020 Page 14 of 14
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`Notwithstanding that more than six months have elapsed since the Plaintiff submitted his
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`administrative claim, § 2675(a)'s language is plain and unambiguous: "an action shall not be
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`. instituted ... unless the claimant shall have first presented the claim to the appropriate Federal
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`agency and his claim shall have been finally denied by the agency in writing and sent by certified
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`or registered mail." 28 U.S.C. § 2675(a).
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`Thus, "[b]ecause '[t]he [Federal Tort Claims Act] bars claimants from bringing suit in
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`federal court until they have exhausted their administrative remedies,' [this] [] court lacks subject
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`matter jurisdiction over [the Plaintiffs] prematurely filed suit[]." See Turner, 514 F.3d at 1200
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`(citing McNeil, 113 S.Ct. at 1984). As this Court lacks subject matter jurisdiction, the Defendant's
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`motion to dismiss is granted.
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`IV. CONCLUSION
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`Accordingly, for the foregoing reasons, it is
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`ADJUDGED that
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`1. The Plaintiffs Motion to Remand to State Court (D.E. 11) is DENIED.
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`2. The Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (D.E. 7) is
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`GRANTED. This action is DISMISSED without prejudice for lack of subject matter
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`jurisdiction, as the Plaintiff failed to exhaust his administrative remedies prior to filing suit.
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`3. The Clerk is directed to CLOSE this case.
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`(;' rfL <")\~.ttrrh-:,
`. of eetctber 2020.
`DONE AND ORDERED in Chambers at Miami, Florida, this
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`_,,MORENO
`FEDERIC
`UNITED STATES DISTRICT JUDGE
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`Copies furnished to:
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`Counsel of Record
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`14
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