Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware


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Date: December 5, 2007
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Case 1 :07-cv-0051 5-G IVIS-IVI PT Document 6 Filed 12/05/2007 Page 1 of 2
I IN THE UNITED STATES DISTRICT COURT `
FOR THE DISTRICT OF DELAWARE · p
KD, a minor, by his parent and natural :
guardian, Kenneth Dieffenbach, and :
KENNETH DIEFFENBACH, in his : `
own r`ht _ :
Plaintiff Civil Action No. 07-515-***
_ UNITED STATES OF AMERICA,
Defendant; n l _
p I I UNITED STATES’ MOTION TO DISMISS OR IN ` - I
THE ALTERNATIVE, FOR SUMMARY JUDGMENT p
The United States, by and through undersigned counsel, hereby respectfully moves the I
. court to dismiss the Complaint in this matter or, in the alternative, to grant summary judgment in
favor of the United States, and in support thereof avers as follows: l n
1. The Complaint is filed pursuant to the Federal Tort Claims Act, 28 U.S.C. 2671 et
seq. ("FTCA").
l ` 2. The FTCA is a limited waiver of sovereign immunity, which must be strictly
` . construed. United States v. Kubrick,444 U.S. 111 (1979)
‘ p 3. Neither the adult plaintiff nor the minor plaintiff complied with the administrative _
prerequisites for suit, thus the Complaint must be dismissed. n " 7

Case 1:07-cv-00515-GIVIS-IVIPT Document 6 Filed 12/05/2007 Page 2 of 2
4. In the alternative, if the Court considers the exhibits attached to its Opening Brief
in support of this motion, the United States prays for entry of an order of summary judgment in
1 its favor. _
Respectfully submitted,
COLM F. CONNOLLY
United-States Attorney _
By: /s/Patricia C. Hannigan I
_ _ Patricia C. Hannigan
, Assistant United States Attorney
Delaware Bar LD. No. 2145
The Nemours Building
1007 Orange Street, Suite 700
P. O. Box 2046 .
Wilmington, DE 19899-2046 ‘ 1
(302) 573-6277 - 1
Patricia.Hanni an usdo'. ov
Dated: December 5, 2007 l

Case 1:07-cv-00515-GMS-MPT

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Case 1:07-cv-00515-GMS-MPT

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