TUCKER

v.

UNITED STATES OF AMERICA - U.S. POSTAL SERVICE

UNITED STATES OF AMERICA— U.S. POSTAL SERVICE,

Defendant. /

ORDER1

Before the Court is Defendant United States’ Motion to Dismiss (Doc. 12). According to the Government, Plaintiff Isaiah Tucker “does not oppose the motion.” (Doc. 14 at 1). So the matter is ripe without awaiting a response. The Government moves to dismiss this Federal Tort Claims Act (“FTCA”) case for lack of subject-matter jurisdiction. According to the Government, Tucker failed to exhaust his administrative remedies. 28 U.S.C. § 2675(a); Turner ex rel. Turner v. United States, 514 F. 3d 1194, 1200 (11th Cir. 2008). But many times, failure to exhaust is a claims-processing rule (i.e.,

True, over the years many courts (including the Eleventh Circuit) loosely said failure to exhaust was jurisdictional. Turner, 514 F. 3d at 1200; Caldwell v. Klinker, 646 F. App’x 842, 846-47 (11th Cir. 2016). But the Supreme Court warned, courts should not rely on “drive-by jurisdictional rulings.” Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006) (citation omitted). And as the Sixth Circuit just explained at length, § 2675(a) is likely not jurisdictional. Copen v. United States,³ F. 4th 875, 879-82 (6th Cir. 2021). If it isn’t, Rule 12(b)(6) governs. See Whatley v. Smith, 898 F. 3d 1072, 1082 (11th Cir. 2018).2

Like summary judgment, courts cannot grant 12(b)(6) motions just because they are unopposed. Marcure v. Lynn, 992 F. 3d 625, 627, 631-33 (7th Cir. 2021) (“Rule 12(b)(6) prevents courts from granting unopposed motions solely because there is no response.”).³ So in ruling on the Motion, the Court

might need to analyze some unsettled—and unbriefed—issues. What’s more, since 12(b)(6) might apply, a dismissal could be with prejudice (which the parties do not address). Fed. R. Civ. P. 41(b) (“Unless the

prompts a without prejudice dismissal, e.g., Garcia v. Obasi, No. 21-12919, 2022 WL 669611, at *4 (11th Cir. Mar. 7, 2022), it can be with prejudice, Bryant v. Rich, 530 F. 3d 1368, 1375 n.11 (11th Cir. 2008).4 And the parties offer no argument. Considering this record, the Court assumes Tucker predicates his

nonopposition on the belief Rule 12(b)(1) applies. In other words, he likely guesses the dismissal would be without prejudice. See McIntosh v. Royal Caribbean Cruises, Ltd., 5 F. 4th 1309, 1313 (11th Cir. 2021). Given these issues—and the parties’ apparent agreement on dismissal

without prejudice—the Court finds it appropriate to deny the Motion as moot. Tucker (or the parties jointly) can simply file a Rule 41(a)(1)(A) voluntary dismissal. Compare Fed. R. Civ. P. 41(a)(1)(A)(i) (allowing dismissal before defendant files answer or summary judgment), with id. 41(a)(1)(A)(ii)

(permitting stipulated dismissal by all parties). This avoids the expenditure of unnecessary judicial resources and allows the parties to facilitate their consensus on dismissal most effectively. See Fed. R. Civ. P. 41(a)(1)(B) (“Unless the notice or stipulation states otherwise, the dismissal is without

or the parties jointly must FILE a Rule 41(a)(1)(A) dismissal on or before April 5, 2022. Alternatively, Defendant must FILE an amended motion to dismiss addressing the issues discussed above on

or before April 12, 2022. DONE and ORDERED in Fort Myers, Florida on March 29, 2022.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record