United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
plaintiff George William Bennett filed this lawsuit as a
small claims action in the Circuit Court for Dane County. He
alleges in his complaint that when his father died at
defendant William S. Middleton Veterans Hospital (VA
Hospital) in Madison, Wisconsin, he was unable to remove two
gold rings valued at $450 from his father's fingers.
Hospital staff have since told Bennett that the rings were
“lost.” Bennett seeks $944.50 in damages, which
includes $400 in attorney's fees and $94.50 for his time.
April 2, 2019, the VA Hospital removed the case to federal
court under 28 U.S.C. § 1442(a)(1), which permits
removal of any action filed in state court against the United
States, any federal agency, or any federal officer for acts
performed in the scope of their employment. The VA Hospital
has filed a motion to dismiss, Dkt. 3, arguing that
Bennett's case should be dismissed for two reasons.
defendant argues that Bennett cannot sue the VA Hospital
because his claim falls under the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2679, which only permits suits
against the United States. Under the FTCA, “the United
States shall be liable . . . to tort claims, in the same
manner and to the same extent as a private individual under
like circumstances.” 28 U.S.C. § 2674. The VA
Hospital is correct. It is not clear from Bennett's
allegations whether he thinks that VA Hospital staff lost his
father's rings through negligent actions or whether he
thinks they intentionally took his father's rings. But if
Bennett thinks the hospital acted negligently or
intentionally converted the rings, his claim must be brought
under the FTCA. The FTCA is the exclusive remedy for any tort
claim resulting from the negligence of a government employee
acting within the scope of employment. Couch v. United
States, 694 F.3d 852, 856 (7th Cir. 2012) (citing 28
U.S.C. § 2679(b)(1)). Additionally, although some
intentional tort claims against government employees fall
outside of the scope of the FTCA under § 2680(h), other
intentional torts, including conversion, must be brought
under the FTCA. Levin v. United States, 568 U.S.
503, 507 (2013).
Bennett's only error was naming the VA Hospital, instead
of the United States, as a defendant, the United States could
be substituted as the proper defendant and this case could
proceed. But the VA Hospital has identified another problem
with Bennett's complaint.
second problem is that Bennett has failed to allege that he
is authorized to sue to recover his deceased father's
property. Under Rule 17 of the Federal Rules of Civil
Procedure, lawsuits must be brought by the “real party
in interest.” This means that a complaint can be
brought only “in the name of the party to whom that
claim ‘belongs' or the party who, ‘according
to the governing substantive law, is entitled to enforce the
right.'” Rawoof v. Texor Petroleum Co.,
521 F.3d 750, 756 (7th Cir. 2008) (citations omitted). For a
claim concerning personal property, like the claim here, the
real party in interest would be the person who owned the
property, or if that person is deceased, the personal
representative, inheritor, or executor of the deceased
person's estate. See Fed. R. Civ. P. 17(a)(1).
Because Bennett has not alleged that he owned the missing
rings or that he otherwise has authority to sue to recover
the rings on behalf of his father's estate, he has failed
to state a viable claim to recover the value of the rings.
See Struck v. Cook Cty. Pub. Guardian, 508 F.3d 858,
859 (7th Cir. 2007) (stating that because plaintiff was not
his mother's guardian, he was “not authorized to
sue on her behalf”); Scully v. Goldenson, 751
Fed.Appx. 905, 908 (7th Cir. 2018) (because plaintiffs had
not alleged that they were their mother's guardian or
executors of her estate, they were “not the real
parties in interest” who could sue for claims against
caretakers at medical facility that allegedly abused their
Bennett has failed to name the proper defendant and has
failed to allege facts suggesting that he has the authority
to sue to recover for his father's rings, I will dismiss
Bennett's complaint. But both of the problems with
Bennett's complaint can be fixed, so the dismissal will
be without prejudice. If Bennett files an amended complaint
by the deadline set forth below that names the United States
as defendant and clarifies why he thinks he has the authority
to sue to recover the rings, this case will proceed. If
Bennett fails to file an amended complaint by the deadline,
the case will be closed.
Defendant William S. Middleton Veterans Hospital's motion
to dismiss, Dkt. 3, is GRANTED. Plaintiff George William
Bennett's complaint is DISMISSED without prejudice.
Plaintiff may have until July 29, 2019 to file an amended
complaint that (a) names the United States as a defendant and
(b) alleges facts showing that he has the authority to sue to
recover property belonging to his deceased father.
plaintiff fails to file an amended complaint by July 29,
2019, the clerk of court is directed to enter ...