Keller v. United States of America

Filing 68

ORDER - IT IS ORDERED that Defendant United States' Motion for Summary Judgment (Doc. 58 ) is granted and that this action is dismissed as time-barred. The Clerk of the Court shall enter judgment accordingly. (See document for further details). Signed by Senior Judge Paul G Rosenblatt on 8/29/17. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Mary Jo Keller, Plaintiff, 11 12 13 vs. United States of America, Defendant. 14 15 ) ) ) ) ) ) ) ) ) ) ) No. CV-11-02345-PHX-PGR ORDER 16 Pending before the Court is Defendant United States’ Motion for Summary 17 Judgment (Doc. 58), wherein the United States seeks to have this action dismissed 18 as time-barred. Having considered the parties’ memoranda in light of the relevant 19 evidence of record, the Court finds that there is no genuine dispute as to any 20 material fact and that the United States is entitled judgment in its favor as a matter 21 of law pursuant to Fed.R.Civ.P. 56.1 22 23 24 25 26 1 Although the plaintiff has requested oral argument, the Court concludes that no oral argument is necessary because the parties have had an adequate opportunity to provide the Court with evidence and legal memoranda and oral argument would not aid the decisional process. Partridge v. Reich, 141 F.3d 920, 926 (9th Cir.1998). The Court notes that it discusses herein only those arguments raised by the parties that the Court deems necessary for the resolution of the instant motion. 1 Background 2 This Federal Tort Claims Act case, commenced on August 26, 2011, arises 3 from an automobile accident in Maricopa County, Arizona on September 7, 2007 in 4 which Amanda Keller, the daughter of plaintiff Mary Jo Keller (“Keller”), was killed 5 when her vehicle crossed the median of Interstate 10 through an allegedly defective 6 three-cable median barrier and collided with an oncoming vehicle. 7 The Court initially dismissed this action for lack of subject matter jurisdiction 8 on July 18, 2012, on the ground that it was time-barred because Keller did not 9 present her administrative claims required by the FTCA to the Federal Highway 10 Administration (“FHWA”) until December 16, 2010, which was some fifteen months 11 after the expiration of two-year statute of limitations of 28 U.S.C. § 2401(b).2 Section 12 2401(b) provides in relevant part that “[a] tort claim against the United States shall 13 be forever barred unless it is presented in writing to the appropriate Federal agency 14 within two years after such claim accrues[.]” The Court concluded as a matter of law 15 in its initial dismissal opinion that Keller’s claim accrued on September 7, 2007, the 16 date of the accident, that the limitations period expired two years later, and that the 17 then-existing Ninth Circuit precedent, which held that the limitations period was 18 jurisdictional, barred the Court from considering Keller’s contention that the 19 limitations period should be equitably tolled. 20 During the pendency of Keller’s appeal, the Ninth Circuit held that the 21 limitation periods of § 2401(b) were not jurisdictional and were subject to equitable 22 tolling. Kwai Fun Wong v. Beebe, 732 F.3d 1030 (9th Cir.2013) (en banc). The 23 24 25 26 2 Keller filed two administrative claims with the FHWA: one on behalf of herself as Amanda’s surviving mother, and one in her capacity as the personal representative of Amanda’s estate. In her Second Amended Complaint, Keller dropped her previous claims on behalf of the estate. -2- 1 Supreme Court affirmed that holding. United States v. Kwai Fun Wong, 135 S.Ct. 2 1625 (2015). As a result, the Ninth Circuit reversed the Court’s judgment of 3 dismissal and remanded this action to allow the Court to consider Keller’s equitable 4 tolling argument. 5 The post-remand Second Amended Complaint (“SAC”) (Doc. 54), which Keller 6 brings pursuant to the FTCA solely in her capacity as Amanda Keller’s surviving 7 mother for purposes of Arizona’s Wrongful Death Act, A.R.S. § 12-611 et seq., 8 alleges two claims. Count One is a claim for Negligence, which alleges that the 9 United States negligently failed to comply with its own policies and federal law 10 mandating that safety barriers installed on National Highway System (“NHS”) 11 roadways undergo crash testing and approval pursuant to the National Cooperative 12 Highway Research Project Report 350. Count Two is a claim for Negligence Per Se, 13 which alleges that the United States violated its own federally mandated safety rules 14 and regulations by failing to install a crashworthy, appropriately tested, NCHRP 15 Report 350 compliant median barrier. 16 Keller further alleges in the SAC that the FTCA’s limitations period was 17 equitably tolled as of September 7, 2007, the date of the fatal accident, and therefore 18 did not commence running, “because misrepresentations by the Defendant caused 19 Plaintiff to let the filing period lapse.” Keller asserts in the SAC that the limitations 20 period was tolled from Amanda Keller’s death through April 28, 2009, the date on 21 which Keller learned through the deposition of FHWA employee Richard Powers 22 that the cable median barrier at issue was not Report 350 compliant and that the 23 United States had negligently accepted the non-crash-tested cable median barrier 24 design. 25 Keller is represented in this action by attorney John Leader, who has litigated 26 -3- 1 various state and federal lawsuits on behalf of plaintiffs alleging negligence related 2 to the design of the three-cable median barrier at issue here. 3 Discussion 4 The United States argues that it is entitled to summary judgment on the 5 equitable tolling issue because the undisputed facts demonstrate that Keller, through 6 her attorney, had sufficient knowledge of its involvement with the design of the cable 7 median barrier to have timely filed an administrative claim with the FHWA within two 8 years of Amanda Keller’s death. 9 Keller argues that the United States’ summary judgment motion should be 10 denied because her administrative claims were timely filed with the FHWA for 11 purposes of § 2401(b), or alternatively that at the very least there is a disputed issue 12 of fact concerning the timeliness of her administrative claims. Underlying Keller’s 13 liability claim is her contention that the United States negligently accepted incorrect 14 crash-testing information to fulfill its own crash-testing requirement for the median 15 cable barriers. The gist of Keller’s position is that the limitations period should be 16 equitably tolled through April 29, 2009 because the United States concealed until 17 that date the material fact that a FHWA memorandum in September 2005, which 18 stated that the design of the median cable barrier was Report 350 compliant and 19 therefore crash-tested, was a misrepresentation inasmuch as the report was 20 mistakenly based on test results for roadside barriers, a different type of barrier from 21 the non-tested median cable barriers. Keller contends in her response that prior to 22 the United States’ alleged negligence being discovered during the April 29, 2009 23 deposition, her attorney “believed not that the FHWA negligently confused crash test 24 reports, but that the State of Arizona misrepresented crash test compliance to the 25 FHWA as part of Arizona’s funding request.” 26 -4- 1 2 There are no disputed issues of fact here. The parties’ disagreements stem the legal interpretation of the undisputed facts. 3 A. Date of Accrual 4 Reading the SAC and Keller’s response together, it is not absolutely clear to 5 the Court whether Keller is contending that her claims did not accrue until April 29, 6 2009, or whether they accrued on December 7, 2007 but the two-year limitations 7 period did not commence running thereafter until April 29, 2009. To the extent that 8 Keller is arguing the former, the Court affirms its earlier determination that her claims 9 accrued on the date of Amanda Keller’s fatal accident. Federal law, not Arizona law, 10 governs the date of accrual for purposes of § 2401(b), Landreth v. United States, 11 850 F.2d 532, 533 (9th Cir.1988), and under that law negligence-related claims 12 accrue when the plaintiff knows of her injury and the immediate physical cause of the 13 injury. Hensley v. Unites States, 531 F.3d 1052, 1057 (9th Cir.2008); Dyniewicz v. 14 United States, 742 F.2d 484, 486 (9th Cir.1984). There is no dispute that the fact of 15 Amanda Keller’s death and the immediate physical cause of her death, i.e. that the 16 vehicle in which she was an occupant crossed the roadway median through a cable 17 barrier and crashed into an oncoming vehicle, were known on the date of the 18 accident. For accrual purposes, it is irrelevant that Keller may then have been 19 ignorant of the United States’ alleged negligence involving the crashworthiness of 20 the cable barrier. United States v. Kubrick, 444 U.S. 111, 123 (1979) (“We thus 21 cannot hold that Congress intended that ‘accrual’ of a [FTCA] claim must await 22 awareness by the plaintiff that his injury was negligently inflicted.”); Hensley, at 1057 23 (“The plaintiffs’ ignorance of the involvement of the United States employees is 24 irrelevant to determining when their [FTCA] claim accrues.”) (Internal quotation 25 marks omitted.); Dyniewicz, at 486-87 (Case involved a FTCA-based wrongful death 26 -5- 1 action brought in part by the personal representative of the estates of two decedents 2 who were killed when a flood swept their car off a highway in Hawaii; the plaintiffs 3 learned more than two years after the accident that the negligence of National Park 4 Service rangers might have been a cause of the accident. In affirming the dismissal 5 of the case as time-barred because the administrative claim was not submitted 6 within two years of accrual, the court concluded that for accrual purposes the 7 plaintiffs knew both the fact of injury and its immediate physical cause, the flooded 8 highway, at the time of the discovery of the decedents’ bodies, and the plaintiffs’ 9 ignorance at that time of the involvement of federal employees was irrelevant since 10 “[d]iscovery of the cause of one’s injury ... does not mean knowing who is 11 responsible for it.”) 12 B. Equitable Tolling of the Limitations Period 13 As a result of the accrual date, Keller’s FTCA action is time-barred absent the 14 propriety of staying the limitations period pursuant to the doctrine of equitable tolling 15 from the date of the accident until two years prior to December 16, 2010, the date 16 Keller filed her administrative claims. As the party seeking equitable tolling, Keller 17 bears the burden of establishing two elements: (1) that she pursued her rights 18 diligently, and (2) that some extraordinary circumstances prevented her from timely 19 filing her administrative claims. Kwai Fun Wong v. Beebe, 732 F.2d at 1052. 20 Although Keller states in her response that she is seeking equitable tolling based on 21 concealment and not on due diligence and that “‘[d]ue diligence’ is not relevant” to 22 her equitable tolling claim, she is mistaken as a matter of law. As the Supreme 23 Court has made clear, both elements must be met for equitable tolling to occur: 24 “[W]e have treated the two requirements as distinct elements in practice, too, 25 rejecting requests for equitable tolling where a litigant failed to satisfy one without 26 -6- 1 addressing whether he satisfied the other.” Menominee Indian Tribe of Wisconsin 2 v. United States, 136 S.Ct. 750, 756 (2016). The Court concludes as a matter of law 3 that Keller has not met either element of the equitable tolling doctrine. 4 (1) Due Diligence 5 The United States argues, and the Court concurs, that Keller has failed to 6 establish the propriety of equitable tolling in part because the undisputed facts 7 establish that Keller was not sufficiently diligent in filing her administrative claims. 8 The gist of Keller’s negligence claims in her SAC is that the United States breached 9 its duty to have a crash-tested median barrier in place on the date of Amanda 10 Keller’s accident. Although the diligence required for equitable tolling is “reasonable 11 diligence” and not maximum feasible diligence,” Holland v. Florida, 560 U.S. 631, 12 653 (2010), Keller unreasonably delayed filing her administrative claims. This is so 13 because her attorney John Leader, based on other cases he had litigated involving 14 the same cable median barrier, had sufficient knowledge of the United States’ 15 possible involvement in the approval of the cable median barrier and that the barrier 16 may not have been crash-tested long before the expiration of the two-year limitations 17 period in this action. As a matter of law, Keller is considered to have notice of all 18 facts known to her attorney. Link v. Wabash Railroad Co., 370 U.S. 626, 634 (1962) 19 (Supreme Court noted that in our system of representative litigation, “each party is 20 deemed bound by the acts of his lawyer-agent and is considered to have notice of 21 all facts, notice of which can be charged upon the attorney.”) (Internal quotation 22 marks omitted); Ringgold Corp. v. Worrall, 880 F.2d 1138, 1141-42 (9th Cir.1989) 23 (Parties “are considered to have notice of all facts known to their lawyer.”). 24 There is no dispute about the following facts. John Leader represented the 25 plaintiff in the state court case of DeVries v. State of Arizona, a wrongful death case 26 -7- 1 involving the same type of cable median barrier at issue here. In the trial of the 2 DeVries action, which ended sometime prior to November 2006, conflicting 3 testimony was presented regarding the FHWA’s approval of the three-cable median 4 barrier design and whether it was Report 350 compliant.3 As a result of that 5 testimony, Leader wrote a letter to the counsel for the FHWA on November 7, 2006, 6 ten months before Amanda Keller’s accident, wherein he requested documents 7 pertaining to FHWA’s position concerning whether the three-cable median barrier 8 was deemed to be in compliance with the crash-testing requirement of Report 350 9 and whether it had been approved for use on NHS roads. Leader noted in that letter 10 that “it is my understanding that to this day, this design has never passed Report 350 11 testing.” 12 Keller wrote another letter to the FHWA’s counsel on January 8, 2007, eight 13 months before Amanda Keller’s accident, wherein he, noting conflicting crash-testing 14 information he had received through cases he had litigated, again requested 15 documents from the FHWA regarding its position regarding Report 350 crash-testing 16 of median and roadside barriers. 17 Leader wrote another letter to the FHWA’s counsel on May 17, 2007, four 18 months before Amanda Keller’s accident, wherein he requested the deposition of a 19 FHWA employee to determine whether the FHWA had deemed the three-cable 20 median barrier design to be crashworthy and approved for use on the NHS. Leader 21 stated in that letter that he represented the plaintiffs in four state court negligence 22 actions involving the same three-cable median barrier, that it was the state’s position 23 24 25 26 3 There is no dispute that in the trial of the DeVries case, Douglas Head, a retired FHWA employee, testified that the state’s design of the three-cable median barrier was not Report 350 compliant and had not been approved for use on NHS roads. -8- 1 in those actions that the FHWA had deemed the cable barrier to be Report 350 2 crashworthy and appropriate for use on NHS roads, but that he, based on conflicting 3 evidence, believed that the FHWA had not at any time deemed the barrier to be 4 crashworthy. 5 On December 19, 2007, three months after Amanda Keller’s accident, Leader 6 filed a FTCA administrative claim with the FHWA on behalf of another client, Mark 7 Melvin, who was injured in a cross-median crash on State Route 51 on December 8 21, 2005. Leader stated in that administrative claim that the three-cable median 9 barrier that failed in Melvin’s case had “allowed over 200 cross median collisions of 10 Valley freeways.” He further stated that there had been several other lawsuits 11 against the state involving the same median barrier design, and that “[i]n defending 12 these allegations, the State makes several claims that the FHWA has endorsed the 13 subject design and that it (the State) relied on these alleged endorsements. If the 14 State’s allegations ... are true, the United States is partially at fault for the 15 functionally inadequate barrier that was and is present on many State freeways, and 16 partially at fault for Mr. Melvin’s injuries.” Leader concluded by reiterating in the 17 administrative claim that the state’s allegations, if true, “give rise to a negligent 18 highway design claim against the United States.” 19 On September 10, 2008, one year prior to the deadline for Keller to file her 20 administrative claims in this action, Leader filed an FTCA action in this Court on 21 behalf of Mark Melvin, Melvin v. United States, CV-08-01666-PHX-SRB. That 22 complaint alleged in part that the United States was negligent in deeming the three- 23 cable median barrier to be Report 350 compliant and approving it for use on NHS 24 roads. 25 Moreover, another Judge of this Court has determined that as early as 26 -9- 1 November 2006, ten months before Amanda Keller died, John Leader had sufficient 2 knowledge of the United States’ role with the three-cable median barrier to bar the 3 use of equitable tolling to stay the FTCA’s limitations period. In Booth v. United 4 States, CV-11-00901-PHX-SPL, a wrongful death action brought by Leader involving 5 a cross-median accident on Interstate 10 involving the same three-cable median 6 barrier as here, Judge Steven Logan granted summary judgment for the United 7 States on the plaintiff’s equitable tolling claim. In so doing, Judge Logan determined 8 that the plaintiff, due to his attorney Leader’s knowledge from other cases he had 9 litigated, “knew no later than November 7, 2006 that FHWA had exposure to liability. 10 He knew that there was conflicting testimony about the approval of the ADOT 3-wire 11 median design and its compliance with Report 350.” 12 It is clear to the Court that Keller has failed to establish that she met the 13 diligence element of the equitable tolling doctrine because the evidence establishes 14 that Keller, through the information her attorney possessed, could have timely filed 15 her administrative claims within two years of Amanda Keller’s death and that her 16 delay in filing them until more than three years after her claim accrued was 17 unreasonable.4 (2) Extraordinary Circumstances 18 19 The second element of the equitable tolling doctrine, which is the one Keller 20 21 22 23 24 25 26 4 Although Keller states in her SAC that “[u]pon information and belief, Plaintiff Keller was unaware of the Melvin proceedings until around the time Keller’s own Administrative Claim was presented [which was on December 16, 2010,]” this is disingenuous. The Court does not know exactly when Keller hired John Leader to represent her, but it was indisputably prior to June 11, 2008, which is when Leader filed a state court action on Keller’s behalf stemming from Amanda Keller’s fatal accident. Whatever accident-related information Leader possessed at the time Keller employed him is imputed to her. - 10 - 1 focuses on, requires a showing that extraordinary circumstances beyond her control 2 made it impossible for her to file her administrative claims on time notwithstanding 3 her diligence. Menominee Indian Tribe, 136 S.Ct. at 756; Beebe, 732 F.3d at 1052. 4 Keller argues that she has met this element by showing that the United States 5 concealed material facts about its negligence, i.e., facts related to why it deemed the 6 design of the cable barrier to be acceptable. According to Keller, she could not have 7 filed her action until she learned through the Powers deposition in April 2009 that the 8 FHWA’s September 2005 memorandum that stated that the cable barrier at issue 9 had been crash-tested had negligently relied on the crash-testing of a different type 10 of barrier and the cable median barrier at issue had not in fact been crash-tested. 11 Keller further argues that she could not have learned of this negligence earlier 12 because the United States, relying on the FHWA’s Touhy-related administrative 13 regulations5, refused attorney Leader’s timely requests in highway barrier-related 14 state negligence cases to depose FHWA’s employees such as Powers; Leader 15 commenced those Touhy requests in March 2006. 16 The United States argues, and the Court again concurs, that equitable tolling 17 is also not appropriate under the facts of this action because Keller has not 18 established that extraordinary circumstances made it impossible for her to timely file 19 her administrative claims. First, fraudulent concealment does not even come into 20 play here because Keller had sufficient information prior to the expiration of the 21 limitations period to enable her to timely file her claims. 22 23 24 25 26 5 The Touhy regulations prohibit the unauthorized release of information by current and former federal agency employees and provide a procedure for centralized agency decision-making concerning how the agency will respond to a subpoena or other request for testimony or documents served on a current or former agency employee. See 5 U.S.C. § 301. - 11 - 1 Second, the undisputed facts of record do not establish any fraudulent 2 concealment by the United States. Fraudulent concealment requires a showing of 3 affirmative conduct by the United States which would, under the circumstances of 4 this action, lead a reasonable person to believe that she did not have a claim for 5 relief. Gibson v. United States, 781 F.2d 1334, 1345 (9th Cir.1986). The mere fact 6 that the United States knew prior to April 2009 that the cable median barrier had not 7 been crash-tested and that it failed to disclose that knowledge does not, without 8 affirmative misconduct on its part, constitute fraudulent concealment. Dyniewicz v. 9 United States, 742 F.2d at 487 (“If the Government has been negligent, it has no 10 general duty announce that fact to the world at large. There are no grounds for 11 tolling the [FTCA’s] statute of limitations based simply on the Government’s 12 knowledge of its own wrongdoing absent fraudulent concealment[.]”) Furthermore, 13 Keller’s contention that the FHWA concealed, through misrepresentation in its 14 September 2005 memorandum, that the cable barrier was not Report 350 compliant 15 is not evidence of actual concealment sufficient to toll the limitations period given 16 attorney Leader’s knowledge prior to Amanda Keller’s death that the cable median 17 barrier may not have been crash-tested. 18 The fact that the United States, in accordance with applicable agency Touhy 19 regulations, refused to make FHWA employees available for deposition for three 20 years prior to April 2009 in cases in which the United States was not a party also 21 does not as a matter of law constitute affirmative misconduct. The United States had 22 the lawful right to prevent FHWA employees from testifying in state cases. See 23 United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (Supreme Court held that 24 a Department of Justice employee could not be held in contempt for refusing to 25 comply with a subpoena duces tecum in an action in which the United States was 26 - 12 - 1 not a party when his compliance had been prohibited by an order of a superior acting 2 pursuant to valid federal regulations governing the release of official documents.); 3 5 U.S.C. § 301; 49 C.F.R. Part 9. Keller does not cite to a single case permitting 4 equitable tolling based on concealment when a federal agency properly invokes its 5 Touhy regulations and the Court is not aware of any. Therefore, 6 IT IS ORDERED that Defendant United States’ Motion for Summary Judgment 7 (Doc. 58) is granted and that this action is dismissed as time-barred. The Clerk of 8 the Court shall enter judgment accordingly. 9 DATED this 29th day of August, 2017. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 13 -

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