Nelson v. United States of America

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
FERDINAND F. NELSON, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 6:25-CV-03349-MDH
)
UNITED STATES OF AMERICA, 	)
)
Defendant. 	)
ORDER
Before the Court is Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
and Insufficient Service of Process. (Doc.5). The time has passed for Plaintiff to file suggestions
in opposition and thus the motion is now ripe for adjudication. For reasons herein, Defendant’s
Motion is GRANTED.
BACKGROUND
On October 15, 2025, Plaintiff filed a complaint in Greene County small claims court which
appears to allege “economic hardship” resulting from a physical fitness test conducted by the
United States Army in 1996. (Doc. 1-2). Plaintiff attempted service of his complaint upon the
United States by sending—via certified mail—a summons and a copy of his petition to an Army
recruiting office in Springfield. (Doc. 1-1). On October 18, 2025, the Government removed the
action to this Court. (Doc. 1).
STANDARD OF REVIEW
A complaint must contain factual allegations that, when accepted as true, are sufficient to
state a claim of relief that is plausible on its face. Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010)
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(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court “must accept the allegations
contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving
party.” Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (internal citations omitted). The
complaint’s factual allegations must be sufficient to “raise a right to relief above the speculative
level,” and the motion to dismiss must be granted if the complaint does not contain “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 545
(2007). Further, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Ashcroft, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
The applicable decisional standard when determining a Rule 12(b)(1) motion depends upon
whether the movant makes a “facial” or a “factual” challenge to subject matter jurisdiction. Osborn
v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In a facial challenge, the movant argues
that the allegations in the complaint are not sufficient to establish subject matter jurisdiction. Id.
Defendant asserts a facial challenge in this motion, and the Court will therefore afford Plaintiff the
same protections as they would be entitled to receive under Rule 12(b)(6). Id.
ANALYSIS
Defendant argues Plaintiff has failed to exhaust his administrative remedies as required by
the FTCA. Further Defendant argues to the extent Plaintiff’s complaint might be asserting claims
that are not tort claims premised upon state law, those claims are time-barred by 28 U.S.C. §
2401(a).
I. 	FTCA
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The United States enjoys immunity from civil lawsuits except where it has waived that
immunity specifically and unequivocally. United States v. Mitchell, 463 U.S. 206, 212 (1983).
“Sovereign immunity is jurisdictional in nature,” and “[a]bsent a waiver, sovereign immunity
shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475
(1994). After revieing in a light most favorable to Plaintiff, he appears to be seeking to assert a
state law tort claim against the United States. As such, his complaint can be brought only pursuant
to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. See Rollo-Carlson v. United States,
971 F.3d 768, 770 (8th Cir. 2020) (“The FTCA is a limited waiver of the United States’ sovereign
immunity. It permits persons injured by federal employees to sue the United States for tort claims
in federal district court.”). “Before bringing an FTCA claim in federal court, a party must
administratively exhaust their remedies under the FTCA. 28 U.S.C. § 2675(a).” 971 F.3d at 770.
“As part of this administrative process, the party ‘shall have first presented the claim to the
appropriate Federal agency.’” Id. (quoting 28 U.S.C. § 2675(a)). “The presentment requirement is
a jurisdictional prerequisite to filing an FTCA action in federal court.” Id. (citing Mader v. United
States, 654 F.3d 794, 808 (8th Cir. 2011) (en banc)).
Presentment is achieved upon the following:
[A] claim shall be deemed to have been presented when a Federal agency receives
from a claimant, his duly authorized agent or legal representative, [1] an executed
Standard Form 95 or other written notification of an incident, [2] accompanied by
a claim for money damages in a sum certain for injury to or loss of property,
personal injury, or death alleged to have occurred by reason of the incident, and [3]
the title or legal capacity of the person signing, and is accompanied by evidence of
his authority to present a claim on behalf of the claimant as agent, executor,
administrator, parent, guardian, or other representative
Id. (quoting 28 C.F.R. § 14.2(a)). Presentment must be pleaded and ultimately proven by the FTCA
claimant. Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993).
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Plaintiff has not shown that he made any attempt to present his claim to the Army or the
Department of Defense prior to filing this suit, let alone one which comports with the requirements
of 28 C.F.R. § 14.2(a). Plaintiff has further failed to respond to this Motion to Dismiss. In addition,
Defendant alleges the Army and the Department of Defense have no record of any such claim. For
this reason, Plaintiff’s complaint is dismissed for lack of subject matter jurisdiction. Defendant’s
Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED.
II. 	28 U.S.C. § 2401(a)
The Government argues that to the extent Plaintiff’s complaint might be asserting claims
that are not tort claims premised upon state law, those claims are barred by 28 U.S.C. § 2401(a).
“Civil actions against the United States must be filed “within six years after the right of
action first accrues.” Andersen v. U.S. Dep't of Hous. & Urb. Dev., 678 F.3d 626, 628–29 (8th Cir.
2012) (citing 28 U.S.C. § 2401(a)). “For purposes of § 2401(a) a claim accrues ‘when the plaintiff
either knew, or in the exercise of reasonable diligence should have known, that [he or she] had a
claim.’” Id. (quoting Izaak Walton League of Am., Inc. v. Kimbell, 558 F.3d 751, 759 (8th
Cir.2009)).
Plaintiff’s alleged injury took place in 1996, over 30 years ago and far beyond the 6 years.
Thus, to the extent his complaint asserts non-tort claims, it is dismissed for failure to state a claim.
Defendant’s Motion to Dismiss for Failure to State a Claim is hereby GRANTED.
CONCLUSION
For the reasons set forth herein, Defendant’s Motion to Dismiss is GRANTED. The Court
hereby dismisses the case without prejudice.
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IT IS SO ORDERED.
DATED: March 24, 2026
/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
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