Reddick v. United States of America

Filing 15

ORDER granting 6 Motion to Dismiss; Case Dismissed with Prejudice. Signed by Honorable Susan O. Hickey on January 9, 2014. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
TOMMY REDDICK
V.

PLAINTIFF
CIVIL NO. 1:13-cv-1027

UNITED STATES OF AMERICA

DEFENDANT
ORDER

Before the Court is Defendant United States of America’s Motion to Dismiss (ECF No.
6). Plaintiff Tommy Reddick (“Reddick”) has responded. (ECF No. 8). The Court finds the
matter ripe for consideration.
BACKGROUND
Reddick brings this action pursuant to the Federal Torts Claims Act, 28 U.S.C. §§ 2671
to 2680 (“FTCA”). Prior to this action, on April 11, 2012, Reddick submitted an administrative
tort claim to the United States Department of Veterans Affairs (“VA”). On July 31, 2012, the
VA formally denied Reddick’s claim by written letter. The letter denying Reddick’s claim
advised him:
Further action on this matter may be instituted in accordance with
the FTCA, sections 1346(b) and 2671-2680, title 28, United States
Code, which provides, in effect, that a tort claim that is
administratively denied may be presented to a Federal district court
for judicial consideration. Such a suit must be initiated, however,
within 6 months after the date of mailing of this notice of final
denial as shown by the date of this letter (section 2401(b)), title 28
United States Code).
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Accordingly, the FTCA required Reddick to initiate proceedings in this Court by January 27,
2013.
Knowing this requirement, Reddick states he mailed his complaint to this Court on
January 11, 2103, via the United States Postal Service. On February 25, 2013, having not
received an acknowledgment of the filing, Reddick mailed a letter to this Court’s clerk informing
the clerk that he had mailed his complaint on January 11, 2011, but he had not received a filing
confirmation and his filing fee check was never cashed. Reddick asked the clerk to investigate
the matter. Reddick also copied the letter to the postmaster notifying him of the issue and asking
for assistance in locating the complaint. In the letter to the clerk and the postmaster, Reddick
reported that his counsel mailed another complaint to Pine Bluff, Arkansas also on January 11,
2011, and it was timely received. Reddick’s counsel’s secretary also called the clerk’s office
asking whether or not the complaint had been received. The clerk informed Reddick’s counsel
that the she never received the complaint. After it became apparent the complaint had been lost
or misplaced, Reddick hand delivered his complaint to this Court, and the complaint was actually
filed on March 19, 2013. The United States filed the instant motion to dismiss under Fed. R.
Civ. P. 12(b)(1) for lack of subject matter jurisdiction.
STANDARD OF REVIEW
Rule 12(b)(1) provides that a claim may be dismissed for lack of jurisdiction over the
subject matter. Fed. R. Civ. P. 12(b)(1). Rule 12(b)(1) is “rooted in the unique nature of the
jurisdictional question.” Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). In
determining a Rule 12(b)(1) motion, the court may look to evidence outside the pleadings. Id.
Reviewing outside evidence under Rule 12(b)(1) does not convert the motion into a Rule 56(c)
summary judgment motion. Deuser v. Vecera, 139 F.3d 1190, 1192 n.3 (8th Cir. 1998). When a

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complaint is facially challenged on jurisdiction, all of the factual allegations in the complaint are
presumed to be true. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). If the court finds that
subject matter jurisdiction is lacking, it must dismiss the case. Fed. R. Civ. P. 12(h)(3); Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999).
DISCUSSION
The United States argues that Reddick’s claims are barred because Reddick did not file
his complaint within six months of the denial of his administrative claim as required by the
FTCA. Reddick does not dispute that his complaint was filed outside the time period. However,
Reddick argues that the time period should be equitably tolled because he mailed his complaint
prior to the deadline but the United States Postal Service lost his complaint.
The doctrine of equitable tolling applies to FTCA claims against the government. Motley
v. U.S., 295 F.3d 820, 823 (8th Cir. 2002). Id. However, “equitable tolling is an exceedingly
narrow window of relief.” Finch v. Miller, 491 F.3d 424, 427-28 (8th Cir. 2007). Courts have
generally reserved the remedy of equitable tolling for circumstances which were truly beyond the
control of the plaintiff. Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989).
Equitable tolling has been limited to situations in which “the claimant has actively pursued his
judicial remedies by filing a defective pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary’s misconduct into allowing the filing
deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Courts are
“generally much less forgiving in receiving late filings where the claimant failed to exercise due
diligence in preserving his legal rights.” Id.
In this case, the Court declines to apply equitable tolling. Assuming that Reddick mailed
his complaint on January 11, 2013 and the postal service lost his complaint, Reddick failed to

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exercise due diligence to investigate the matter and refile his complaint. When he did not
receive acknowledgment of the filing and when the filing fee check was never cashed, Reddick
waited until late February, almost a month after the filing period’s expiration, to investigate the
matter. Through that investigation, Reddick learned that the clerk never received the complaint.
Even then, Reddick waited until March 19, 2013, to refile his complaint. At all times, Reddick
was represented by counsel and had full knowledge of the January 27, 2013 statutory deadline.
By waiting a month to investigate and then waiting another month to refile his complaint,
Reddick failed to exercise due diligence to preserve his legal rights. Therefore, the Court finds
that equitable tolling is not warranted in this case. Accordingly, Reddick’s claim is statutorily
barred.
CONCLUSION
For the reasons stated above, the Court finds that Defendant’s Motion to Dismiss (ECF
No. 6) is GRANTED. Accordingly, Plaintiff’s case is DISMISSED WITH PREJUDICE.
Because Defendant’s Motion for Summary Judgment (ECF No. 11) moves to dismiss Plaintiff’s
case on the same grounds, the motion is now MOOT.
IT IS SO ORDERED, this 9th day of January, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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