Alexander v. United States of America et al
Filing
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ORDER Granting in part and Denying in part 7 Plaintiff's Motion to Amend or Dismiss Without Prejudice. Signed by Judge Thomas J. Whelan on 12/18/2013. (srm)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DAYNE ALEXANDER,
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v.
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CASE NO: 13-CV-0545 W (NLS)
Plaintiff,
ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S MOTION TO
AMEND OR DISMISS WITHOUT
PREJUDICE [DOC. 7]
UNITED STATES OF AMERICA,
Defendant.
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Pending before the Court is Plaintiff Dayne Alexander’s motion to amend his
21 Federal Tort Claim Act (“FTCA”) claim form or, alternatively, dismiss this action
22 without prejudice so he can file an amended claim. Defendant United States of
23 America opposes.
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The Court decides the matters on the papers submitted and without oral
25 argument. See Civ. L. R. 7.1(d.1). For the reasons discussed below, the Court
26 GRANTS IN PART and DENIES IN PART the motion [Doc. 7].
27 //
28 //
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1 I.
BACKGROUND
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This lawsuit arises from an injury suffered by Plaintiff Dayne Alexander while
3 working out at the Olde Gym at the Naval Base San Diego. (Mt. [Doc. 7-1], p.2.)
4 Alexander contends that while using the Maxicam Squat Rack Stairstep 2020, the
5 machine collapsed on him resulting in a comminuted fracture of the middle third of the
6 left femur, requiring several surgeries. (Id.) Alexander alleges the machine fell because
7 it was overloaded with weights and was not bolted to the floor. (Id.)
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Immediately following the accident, Alexander was rushed to Scripps Mercy
9 Hospital where he underwent an emergency open reduction and internal fixations
10 surgery. (Mt., p.2.) Alexander then had a follow-up examination with Dr. Charles
11 Roland, an orthopedic surgeon, who performed orthroscopic surgery on Alexander’s left
12 knee to clear debris and scar tissue related to the injuries. (Id.) Alexander was then
13 referred to physical therapy. (Id.)
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On March 7, 2012, Alexander filed a claim for $850,000 in damages with
15 Defendant (the “Claim”) under the FTCA. Defendant denied the claim and on March
16 8, 2013, Alexander filed this lawsuit.
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Following Defendant’s denial of the Claim, Alexander alleges that Dr. Roland
18 prepared a report that “provided Plaintiff with a course of future medical care that
19 plaintiff was unaware of at the time the Claim for damages was filed.” (Mt., p.3.)
20 According to Dr. Roland’s June 3, 2013 report, Alexander will require at least four
21 future surgeries, and additional periods of recovery during which he will not be able to
22 work. (Id., pp. 3–4; Ex. [Doc. 7-2].) Alexander, therefore, intends to seek $6,000,000
23 in damages against Defendant. Because his Claim only sought $850,000 in damages,
24 Alexander seeks “leave to amend claim” or to dismiss the Complaint without prejudice
25 to file a new claim.
26 //
27 //
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1 II.
DISCUSSION
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A.
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Alexander requests “leave to amend his Claim” based on the information he
This Court lacks the authority to amend Alexander’s Claim.
4 received after his Claim was rejected. (Mt., p.1.) However, Alexander has failed to
5 establish this Court’s authority to grant him leave to amend his Claim.
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Although Alexander’s request is somewhat unclear, he appears to be seeking an
7 order that essentially deems his Claim “amended” so as to include his $6,000,000
8 damage claim, and preclude Defendant from challenging any subsequent award
9 exceeding $850,000 – the amount sought in the current Claim. However, Alexander
10 has failed to identify any rule or statute authorizing a motion in district court to amend
11 an FTCA claim form.
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Alexander’s motion cites Federal Rule of Civil Procedure 15(a) as authority for
13 his motion. But Rule 15 applies to the amendment of “pleadings,” which are defined
14 as: “(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim
15 designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party
16 complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a
17 reply to an answer.” Fed. R. Civ. P. 7(a). An FTCA claim form is not a “pleading.”
18 Accordingly, Rule 15(a) does not govern his motion and does not give district court’s
19 discretion to allow a plaintiff to amend a claim.
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Moreover, the Court is unaware of any rule or statute granting a district court
21 authority to amend an FTCA claim. No such authority exists in 28 U.S.C. § 2675(a),
22 which specifically provides that a claim must be filed with “the appropriate Federal
23 agency” before a lawsuit may be filed. See 28 U.S.C. § 2675(a). Moreover, allowing a
24 plaintiff to amend a claim form in district court would be inconsistent with the FTCA’s
25 purpose of giving the Federal agency the ability to evaluate the claim before litigation
26 is filed. See Furman v. U.S. Postal Service, 349 F.Supp.2d 553, 557 (E.D.N.Y. 2004).
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Notwithstanding the lack of authority to grant Alexander leave to amend his
28 claim, 28 U.S.C. § 2675(b) would allow Alexander’s damage award to exceed $850,000
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1 if “the increased amount is based upon newly discovered evidence not reasonably
2 discoverable at the time of presenting the claim to the federal agency, or upon
3 allegation and proof of intervening facts, relating to the amount of the claim.”
4 However, this determination generally appears to be made at trial, not at the start of
5 the litigation before discovery has been conducted. Indeed, all of the cases Alexander
6 cites in support of his motion involve determinations made at trial.
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In Fraysier v. United States, 766 F.2d 478 (11th Cir. 1985), the district court’s
8 determination that the permanence of plaintiff’s injury was based on newly discovered
9 evidence was made after trial. Id. at 480–481. In United States v. Alexander, 238 F.2d
10 314 (5th Cir. 1956), the district court’s determined after a bench trial that when
11 plaintiff’s claim was filed, he did not know his shoulder injury would require surgery.
12 Id., at 316. And in Michels v. United States, 31 F.3d 686 (8th Cir. 1994), the district
13 court determined that plaintiff’s increased damage claims was based on newly
14 discovered evidence after a bench trial. Id., at 687.
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Nor has this Court found any other case in which the determination about
16 whether the increased damages was based on newly discovered evidence or intervening
17 facts was made before trial. See Reilly v. United States, 863 F.2d 149 (1st Cir. 1988)
18 (reversal of district court’s finding during bench trial that expert’s confirmation that the
19 worst possibilities about infant’s multiple disabilities due to medical malpractice was
20 newly discovered evidence); Low v. United States, 795 F.2d 466 (5th Cir. 1986)
21 (reversing district court’s determination made at time judgment entered and after
22 hearing treating physician’s testimony).
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The Court also believes that evaluating whether Alexander’s increased damages
24 are based on newly discovered evidence at this stage in the litigation would be
25 prejudicial to Defendant. Alexander’s motion is based on Dr. Roland’s June 3, 2013
26 report that discusses Alexander’s medical condition and his need for future surgeries
27 and rehabilitation. (See Mt., Ex.) However, the report does not indicate what Dr.
28 Roland told Alexander before March 2012.
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And Defendant has not had the
13-cv-0545W
1 opportunity to conduct discovery on this issue, which is relevant to the determination
2 of whether Alexander’s increased damage claim is based on “newly discovered”
3 evidence. Therefore, until Defendant has had an opportunity to conduct discovery, any
4 determination of whether Alexander may recover more than $850,000 is premature.
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B.
Alexander may request a dismissal without prejudice.
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Alternatively, Alexander seeks leave to dismiss the case without prejudice so that
8 he may present a new FTCA claim to Defendant. Defendant contends that allowing
9 Alexander to dismiss without imposing a limitation on the amount of damages he may
10 seek in future litigation will “only incentivize Plaintiff to voluntarily dismiss complaints
11 as long as he could file a new complaint above $850,000, and up to $6,000,000,” which
12 would “severely disrupt judicial time and efficiency ....” (Opp. [Doc. 9], p.6.) The
13 Court is not persuaded by Defendant’s argument.
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Generally, a voluntary dismissal should be granted unless the defendant will suffer
15 prejudice or other legal harm. See Holiday Queen Land Corp. v. Baker, 489 F.2d 1031,
16 1032 (5th Cir. 1974). Here, Defendant has not identified any prejudice or other legal
17 harm that it would suffer if the case was dismissed without prejudice so that Alexander
18 could file a new claim. Indeed, given that Alexander raised the issue of amending his
19 claim approximately three months after the lawsuit was filed (see Judge Stormes’ 6/17/13
20 minute order [Doc. Entry 6]), that discovery has not yet begun, and that no dispositive
21 motions have been filed, the Court fails to see any prejudice or legal harm to Defendant
22 by Alexander’s dismissal of the case without prejudice. Accordingly, Alexander may
23 obtain a dismissal of the lawsuit without prejudice in order to pursue a new or amended
24 claim.
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1 III.
CONCLUSION & ORDER
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For the foregoing reasons, the Court GRANTS IN PART and DENIES IN
3 PART Plaintiff Dayne Alexander’s motion [Doc. 7]. Alexander may proceed with this
4 litigation and seek a determination about whether his increased damage claim is based
5 on newly discovered evidence at the appropriate time. Alternatively, Alexander may
6 file a request for voluntary dismissal without prejudice, and the Court will issue an order
7 dismissing the case without prejudice. If Alexander chooses to voluntarily dismiss this
8 case without prejudice, he must file the request on or before January 17, 2013.
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IT IS SO ORDERED.
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12 DATED: December 18, 2013
Hon. Thomas J. Whelan
United States District Judge
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