ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION TO DISMISS

[Doc. No. 5]

MICHAEL M. ANELLO, District Judge.

On July 25, 2016, Plaintiffs Emmanuel Ducos Reyes and Amalia Fallorin Reyes initiated a small claims action in the Superior Court of California for the County of San Diego, naming Burt Lee1 as the defendant. See Doc. Nos. 1, 2. In Plaintiffs' small claims complaint, Plaintiffs allege Mr. Lee refused to deliver mail. See Doc. No. 1. On December 1, 2016, the United States of America removed this action from the Superior Court based on federal question jurisdiction and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). See Doc. No. 1. The United States then filed a notice of substitution, substituting the United States as Defendant pursuant to the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679, and asserting that Mr. Lee was acting within the scope of his employment as a federal employee—specifically, a postal worker—at the time the causes of action arose. See Doc. No. 5. Now, Defendant United States moves to dismiss this action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). See Doc. No. 5. For the following reasons, the Court agrees that it lacks subject matter jurisdiction over this action.

DISCUSSION

"The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies." See McNeil v. United States, 508 U.S. 106, 113 (1993); see 28 U.S.C. § 2675(a). Specifically, a tort claim "may not be instituted against the United States unless it is first presented to the appropriate Federal agency and one of the following conditions is met: the claim is finally denied, or six months have passed without a final resolution having been made." See Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985). This is a jurisdictional requirement. See Sec. Nat. Ins. Co. v. United States, 637 F. App'x 347, 347-48 (9th Cir. 2016); Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). Further, even where a plaintiff commences litigation and then exhausts administrative remedies "before substantial progress [is] made in the litigation," an FTCA action must be dismissed for lack of subject matter jurisdiction. See McNeil, 508 U.S. at 111-12.

Here, Defendant asserts that Plaintiffs have not filed an administrative claim prior to commencing this action, as required by § 2675(a). See Doc. No. 5. Plaintiffs do not oppose Defendant's motion to dismiss. Accordingly, Plaintiffs have not demonstrated that they have exhausted her administrative remedies. Based on the record, it appears that Plaintiffs' complaint is premature, and the Court lacks subject matter jurisdiction over this action. Lastly, amendment appears futile because Plaintiffs would not be able to cure any failure to exhaust administrative remedies after they have already commenced this FTCA action. See McNeil, 508 U.S. at 111-12; see DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987) ("[F]utile amendments should not be permitted.").

CONCLUSION

In sum, the Court GRANTS Defendant's unopposed motion to dismiss, and DISMISSES this action without prejudice, and without leave to file an amended complaint. The Clerk of Court is instructed to close this action.

IT IS SO ORDERED.