McLeod v. The United States of America
MEMORANDUM OPINION AND ORDER that the 12 Motion to Dismiss is GRANTED and that this action is DISMISSED for lack of subject matter jurisdiction as further set out in the opinion and order. Signed by Chief Judge William Keith Watkins on 5/28/2014. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MARY H. MCLEOD,
UNITED STATES OF AMERICA,
CASE NO. 2:13-CV-576-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff Mary H. McLeod brings this Federal Tort Claims Act (“FTCA”)
action, see 28 U.S.C. § 1346(b), alleging that the United States’s negligence caused
the injuries she sustained when she tripped on a cone and fell while she was at the
Maxwell Air Force Base Exchange in Montgomery, Alabama. The United States
moves to dismiss Ms. McLeod’s Complaint for lack of subject matter jurisdiction
based upon her failure to timely exhaust mandatory administrative remedies under
the FTCA. (Docs. # 12, 13.) The motion has been fully briefed. (Docs. # 12, 13,
16, 17.) After careful consideration of the arguments of counsel, the appropriate
law, and the allegations set forth in the Complaint, the court finds that the motion
is due to be granted.
I. JURISDICTION AND VENUE
The parties do not contest personal jurisdiction or venue. Subject matter
jurisdiction is at issue.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)
challenges the court’s subject matter jurisdiction, and Rule 12(b)(1) permits a
facial or factual attack. McElmurray v. Consol. Gov’t of Augusta–Richmond
Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). On a Rule 12(b)(1) facial attack, the
court evaluates whether the plaintiff “has sufficiently alleged a basis of subject
matter jurisdiction” in the complaint and employs standards similar to those
governing Rule 12(b)(6) review. Houston v. Marod Supermarkets, Inc., 733 F.3d
1323, 1335 (11th Cir. 2013).
A Rule 12(b)(1) factual attack, however,
“challenge[s] the existence of subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as testimony and affidavits, are
considered.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (internal
quotation marks omitted). When the attack is factual, “the trial court is free to
weigh the evidence and satisfy itself as to the existence of its power to hear the
case.” Id. Therefore, “no presumptive truthfulness attaches to [the] plaintiff’s
allegations, and the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional claims.” Id. The United
States, which relies on matters outside the pleadings, has raised a factual attack on
subject matter jurisdiction.
In the Complaint, Plaintiff Mary H. McLeod (“McLeod”) alleges that on
September 11, 2010,1 she was in the Maxwell Air Force Base Exchange (“BX”)
and tripped and fell over a “construction cone” or “rope holder” while trying to
enter the women’s restroom. Ms. McLeod alleges that her fall occurred “[a]s she
stepped around the corner” and that the “unforeseen and hidden object [was]
placed in the restroom walkway.” (Doc. # 1 ¶¶ 7, 8.) Ms. McLeod was a frequent
patron of the BX and alleges that there were no signs or warnings to alert patrons
of the obstruction in the bathroom walkway. (Doc. # 1 ¶ 15.) Ms. McLeod alleges
that as a proximate result of Defendant’s negligence, she sustained severe injuries
including a fractured hip and injuries to her shoulder and knees. She further
alleges that she has suffered “mental anguish, mental, physical and nervous pain,”
resulting in medical, hospital, and prescription bills. (Doc. # 1 ¶ 17.)
The Complaint states that the incident occurred on September 10, 2010, while all other
documents allege that September 11, 2010, was the date on which the incident occurred. The
later date, which is more beneficial to Plaintiff, will be assumed accurate for purposes of this
This action is Ms. McLeod’s second attempt to comply with the procedural
requirements of the FTCA. Just under two years after the alleged injury, Plaintiff’s
counsel mailed a “Notice of Claim” letter to TSgt. Amanda Cranmore
(“Cranmore”) at Maxwell Air Force Base (“Maxwell”), which was received in the
Maxwell mailroom on September 7, 2012. (Doc. # 12-1 ¶¶ 4, 5.) Cranmore is
employed in the Staff Judge Advocate General Office (“JAG Office”) at Maxwell
and processes FTCA administrative claims. (Doc. # 12-1 ¶¶ 1, 2.) The letter set
forth Ms. McLeod’s allegations and stated that the incident occurred “[o]n or about
September 11, 2010,” but did not specify a sum certain for her claim as required by
28 C.F.R. § 14.2(a). (Doc. # 12-1, Ex. A.) The letter concluded by stating that it
was to serve as Ms. McLeod’s “Notice of Claim” pursuant to 28 U.S.C. § 2675(a).
On September 10, 2012, Ms. McLeod filed her first action in federal court.
See McLeod v. United States, No. 12cv782-WHA (M.D. Ala. Sept. 10, 2012).
That same day, Plaintiff’s counsel, through his legal assistant, attempted to handdeliver to Cranmore at Maxwell a Standard Form 95 (“SF-95”), which contained a
sum certain in the amount of $500,000 and was dated September 10. (Doc. # 1 ¶ 5;
Doc. # 1-1 (SF-95, Ex. A).) Despite information Plaintiff’s counsel had received
that Cranmore would accept the form by personal delivery, when he arrived at
Maxwell’s entrance to deliver the documents, he was turned away and told that he
would have to mail the form by certified mail. As a result, Plaintiff’s counsel sent
the form by certified mail. (Doc. # 16, at 1 (citing Michael Dixon’s Aff. 1).) The
SF-95, containing a sum certain, was sent by certified mail to Cranmore and
arrived in the Maxwell mailroom on September 14, 2012, and was received by
Cranmore at the JAG Office on September 17, 2012.
(Doc. # 12-1
¶ 4, Exs. C & D.)
On January 9, 2013, Ms. McLeod’s first action was dismissed without
prejudice because she “failed to wait to file suit until the United States either
denied her claim or failed to make final disposition of that claim within six
months,” as required by the FTCA. (Doc. # 1-2, at 2); see § 2675(a) (reciting the
procedural requirements for disposition by a federal agency prior to initiating a
lawsuit pursuant to the FTCA). On February 15, 2013, Ms. McLeod received final
denial of her administrative claim. She filed the present action on August 12,
2013. The United States moves to dismiss Ms. McLeod’s Complaint for lack of
subject matter jurisdiction on the grounds that Ms. McLeod again has failed to
timely exhaust her mandatory administrative remedies under the FTCA.
Mr. Dixon is Plaintiff’s counsel’s legal assistant. Ms. McLeod filed Mr. Dixon’s
declaration in Civil Action No. 12cv782. Based upon her reliance on the declaration, it is
incorporated in this action by reference.
The Government makes two arguments to support its motion to dismiss.
First, Ms. McLeod’s administrative claim was not timely pursuant to the FTCA,
and second, equitable tolling cannot save her untimely claim because the FTCA’s
two-year statute of limitations is jurisdictional and thus, equitable tolling is not
available. The discussion proceeds in two parts. Part A addresses the timeliness of
Ms. McLeod’s administrative claim, and Part B addresses equitable tolling under
The Government disputes the timeliness of Ms. McLeod’s administrative
claim based on her failure to specify a sum certain for her claim within the twoyear time requirement. Ms. McLeod argues that the September 7, 2012 letter is
sufficient to provide adequate notice to the Government, notwithstanding its failure
to include a sum certain, because a sum certain was subsequently provided, though
not within the two-year time period. Ms. McLeod alternatively reasons that she is
entitled to the benefit of equitable tolling because she “had no ‘control’ over the
actions of Cranmore in refusing to accept delivery [on September 10, 2012] after
first promising to accept same.” (Doc. # 16, at 3.)
“The FTCA provides a limited waiver of the United States’ sovereign
immunity for tort claims.” Dalrymple v. United States, 460 F.3d 1318, 1324 (11th
Cir. 2006). It allows the Government to be sued for claims arising from torts
committed by federal employees acting within the scope of their employment. See
28 U.S.C. §§ 1346(b)(1), 2679(d)(1). Nevertheless, “[a] federal court may not
exercise jurisdiction over a suit under the FTCA unless the claimant first files an
administrative claim with the appropriate federal agency.” Suarez v. United States,
22 F.3d 1064, 1065 (11th Cir. 1994). Further, the claim must be presented in
writing “within two years after such claim accrues.” § 2401(b). A timely claim
may be presented through the claimant’s SF-95 “or other written notification of
[the] incident, accompanied by a claim for money damages in a sum certain for
injury to or loss of property, personal injury, or death alleged to have occurred by
reason of the incident.” 28 C.F.R. § 14.2(a). “When the sum certain is omitted,
the administrative claim fails to meet the statutory prerequisites to maintaining a
suit against the government, and leaves the district court without jurisdiction to
hear the case.”
Motta v. United States, 717 F.3d 840, 844 (11th Cir. 2013)
(quoting Suarez, 22 F.3d at 1065). “If the tort claim is not properly presented
within the time period, it ‘shall be forever barred.’” Id. (quoting § 2401(b)). It is
the burden of the claimant to show that the written notice was timely and contained
a sum certain. Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237 (11th Cir.
Ms. McLeod argues that “[n]o particular form or manner of giving the notice
required under Section 2675(a) is mandated, as long as the agency is somehow
informed of the claim and the amount thereof within the two year period,” citing
Williams v. United States, 693 F.2d 555, 557 (5th Cir. 1982). Ms. McLeod’s
argument mistakenly focuses on the form of the notice to support her argument that
her September 7, 2012 letter, coupled with the September 14, 2012 SF-95 form,
adequately provided notice of the sum certain. However, the form of her initial
notice is not the Achilles heel in Ms. McLeod’s administrative claim. The sum
certain must have been provided to the Government no later than September 11,
2012, to satisfy the statutory prerequisite, as expressed in Williams. Id. Because
the sum certain in the SF-95 was not provided until three days after the expiration
of the two-year limitations period, Ms. McLeod’s claim is legally insufficient.
Consequently, Ms. McLeod has failed to show that she complied with the
administrative exhaustion requirements, and thus, she cannot succeed with this
Alternatively, Ms. McLeod contends that she should receive the benefit of
equitable tolling. (Doc. # 16, at 3.) She espouses, “Even though a timely claim
was delivered to the Maxwell A.F.B., Plaintiff had no ‘control’ over the actions of
Cranmore in refusing to accept delivery after first promising to accept same.”
(Doc. # 16, at 3.)
The Government disagrees with Ms. McLeod’s argument, reasoning that
“(1) equitable tolling cannot apply to this case because the FTCA’s two-year
statute of limitations is jurisdictional; and (2) even assuming arguendo that
equitable tolling could be applied, . . . Plaintiff has not shown that she exercised all
necessary diligence to preserve her rights and that circumstances beyond her
control prevented her from timely filing.” (Doc. # 13, at 6.) The Government has
the better argument.
Whether Equitable Tolling Applies Under the FTCA
As observed in Motta, the Eleventh Circuit has not decided whether
equitable tolling applies to claims brought pursuant to the FTCA. See 717 F.3d
at 846; see also Ramos v. U.S. Dep’t of Health & Human Servs., 429 Fed. App’x
947, 951 (11th Cir. 2011) (noting that this circuit has never addressed the issue).
And the other circuits also are split on the question. See Bazzo v. United States,
494 F. App’x 545, 546 n.2 (6th Cir. 2012) (describing the split). The issue of
whether equitable tolling is available in an FTCA action need not be addressed in
this opinion. For the reasons set out below, even if equitable tolling can be applied
to FTCA claims, it cannot be applied to Ms. McLeod’s FTCA claim because Ms.
McLeod has failed to demonstrate that the untimely filing could not have been
avoided with due diligence.
Application of Equitable Tolling
“The doctrine of equitable tolling allows a court to toll the statute of
limitations until such a time that the court determines would have been fair for the
statute of limitations to begin running on the plaintiff’s claims.” Arce v. Garcia,
434 F.3d 1254, 1261 (11th Cir. 2006) (citing Justice v. United States, 6 F.3d 1474,
1475 (11th Cir. 1993) (“The doctrine of equitable tolling abates the harsh operation
of the statute of limitations under certain circumstances in which barring a
plaintiff’s potentially meritorious action would be unjust.”)). “[Equitable] tolling
is an extraordinary remedy which should be extended only sparingly.” Justice, 6
F.3d at 1475 (citing Irwin, 498 U.S. at 96). A plaintiff seeking the benefit of
equitable tolling bears the burden of showing the following: “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstances stood
in his way” preventing him from timely filing the administrative claim. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96 (1990)); see also Sandvik v. United States, 177 F.3d 1269, 1272
(11th Cir. 1999). And for equitable tolling to qualify, the plaintiff “must act with
diligence throughout the litigation.” Justice, 6 F.3d at 1480. The burden is on the
plaintiff to show that such extraordinary circumstances exist. Id. at 1479.
Ms. McLeod cites the conduct of Cranmore in failing to accept her handdelivered notice on September 10, 2012, one day before the two-year limitations
period was to expire, as the sole reason that she is entitled to equitable tolling. Ms.
McLeod does not provide any other facts or “extraordinary circumstances” that
prevented her from successfully filing her claim at any point prior to September
10. While the court does not condone a government worker not keeping her word
(due to the orders of a supervisor), nor does it grant an imprimatur of approval for
waiting, without explanation, until the last metaphorical minute to file a claim.
The lack of demonstrated diligence in bringing the claim, under the totality of the
circumstances, does not support a finding of extraordinary circumstances. Ms.
McLeod makes no showing that she diligently pursued her rights prior to her initial
September 7, 2012 letter or at any other point during the two years after her fall at
the BX. Accordingly, the Government’s Motion to Dismiss is due to be granted.
Based on the foregoing, it is therefore ORDERED that the Motion to
Dismiss (Doc. # 12) is GRANTED and that this action is DISMISSED for lack of
subject matter jurisdiction.
DONE this 28th day of May, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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