McDonough v. El-Khal et al

Filing 15

ORDER signed by Judge Garland E. Burrell, Jr on 11/19/2014 GRANTING-IN-PART and DENYING-IN-PART 8 Motion to Dismiss. Plaintiff is GRANTED 10 days from the date of this order to file an amended complaint that addresses the deficiences in the dismissed complaint. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Linda McDonough,

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No. 2:14-cv-01252-GEB-CMK

Plaintiff,
v.
United States of America,

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS

Defendant.

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The United States moves for dismissal of Plaintiff’s

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Complaint with prejudice, arguing it is barred by the following

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statute of limitations in the Federal Tort Claims Act, prescribed

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in 28 U.S.C. § 2401(b): “A tort claim against the United States

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shall be forever barred unless . . . action is begun within six

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months after the date of mailing, by certified or registered

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mail, of notice of final denial of the claim by the agency to

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which it was presented.” The United States shows in its motion

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that Plaintiff failed to file this lawsuit within six months of

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the date on which the Department of Health and Human Services

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finally

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certified letter sent on April 5, 2013. Plaintiff did not file

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this lawsuit until May 21, 2014, more than thirteen months after

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her administrative claim was finally denied. Swartz v. KPMG LLP,

denied

Plaintiff’s

administrative

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tort

claim

in

a

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476 F.3d 756, 763 (9th Cir. 2007) (per curiam) (revealing that

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documents concerning denial of Plaintiff’s administrative claim

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may be considered since they are “referenced in [the] complaint

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but not explicitly incorporated therein,” and Plaintiff “relies

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on the document[s] and [their] authenticity is unquestioned.”).

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Plaintiff

opposes

the

motion,

solely

arguing

she

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complied with a § 2401(b) statute of limitations provision that

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is irrelevant to decision on the motion.

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However, the recent Ninth Circuit’s en banc decision in

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Kwai Fun Wong v. Beebe, 732 F.3d 1030 (9th Cir. 2013) (en banc),

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cert. granted sub nom. United States v. Kwai Fun Wong, 134 S. Ct.

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2873 (2014), a case not cited by either party, explains that

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contrary to the dismissal with prejudice argument made by the

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United

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limitations

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disregarded, the six month limitations period on which the United

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States relies governs decision on the motion and Ҥ 2401(b) is a

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nonjurisdictional

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equitable tolling . . . .” Id. at 1033, 1047.

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States

and

Plaintiff’s

period

on

which

argument

that

United

States

the

claim-processing

Therefore,

Plaintiff’s

rule

the

is

month

relies

subject

Complaint

six

to

can

.

dismissed,

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be

.

and

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Plaintiff is granted ten days leave from the date on which this

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Order is filed to file an amended complaint that addresses the

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deficiencies in the dismissed Complaint.

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Dated:

November 19, 2014

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