David Ray Hinojosa v. United States of America, et al.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

DAVID RAY HINOJOSA,

Plaintiff, v. No. 2:25-cv-00390-KG-KRS UNITED STATES OF AMERICA, et al.,

Defendants.

ORDER This matter is before the Court on Defendants’ three unopposed requests, which they presented in their motion to dismiss, Doc. 20. First, Defendants contend that the United States Department of Agriculture (“USDA”) must be dismissed as a named defendant because it has not waived sovereign immunity. Id. at 1. Second, they seek dismissal of Plaintiff’s allegation of “other acts of negligence” as impermissibly vague. Id. at 10–11. Third, they seek dismissal of Plaintiff’s request for prejudgment interest because such relief is unavailable under the Federal Tort Claim Act (“FTCA”). Id. at 12 (citing 28 U.S.C. § 2674).

In his response, Plaintiff states that he intends to amend his complaint to remove the USDA as a defendant and to strike his allegation of “other acts of negligence” and his request for prejudgment interest. See Doc. 27 at 1–2. Because Plaintiff has not yet filed an amended complaint, the Court grants Defendants’ motion as to these requests.

Because the Court dismisses the USDA on jurisdictional grounds, the USDA is dismissed as a defendant without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (dismissals based on jurisdictional defects are without prejudice). Because Plaintiff may cure the vagueness of his allegation of “other acts of negligence” through amendment, that allegation is likewise dismissed without prejudice. But because prejudgment interest is unavailable as a matter of law under the FTCA, that request will be dismissed with prejudice. See § 2674.

It is therefore ordered that:

1. The USDA is dismissed as a defendant in this action, without prejudice; 2. Plaintiff's allegation of “other acts of negligence” is dismissed without prejudice; and 3. Plaintiff’s request for prejudgment interest is dismissed with prejudice.

IT IS SO ORDERED.

/s/Kenneth J. Gonzales___________________ CHIEF UNITED STATES DISTRICT JUDGE • Please note that this document has been electronically filed. To verify its authenticity, please refer to the Digital File Stamp on the NEF (Notice of Electronic Filing) accompanying this document.

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