Ressler et al v. Boeing Company, Inc., The et al
Filing
210
ORDER granting 93 Defendant United States of America's Motion to Dismiss Claims of McLean Plaintiffs. The claims of plaintiffs James McLean, Theresa McLean, Jaclyn McLean, and Josef McLean, brought under the Federal Tort Claims Act, are DIS MISSED with prejudice. plaintiffs James McLean, Theresa McLean, Jaclyn McLean, and Josef McLean, are DROPPED as plaintiffs in Civil Action No. 11-cv-02253, which is consolidated with Civil Action No. 10-cv-03050, and the caption in Civil Action No. 11- cv-02253 shall be AMENDED accordingly. By Judge Robert E. Blackburn on 9/20/12.(mjgsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-03050-REB-BNB
(Consolidated with Civil Action Nos. 10-cv-03051-REB-BNB, 11-cv-01832-REB-BNB,
11-cv-01874-REB-BNB, 11-cv-02253-REB-BNB, 11-cv-02894-REB-BNB, 11-cv-02895REB-BNB, 11-cv-03069-REB-BNB, and 11-cv-03070-REB-BNB)
REGINA RESSLER, and
RANDY RESSLER,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA,
Defendant.
ORDER GRANTING MOTION TO DISMISS
(This order applies to Civil Action No. 11-cv-02253.)
Blackburn, J.
This matter is before me on the Defendant United States of America’s Motion
to Dismiss Claims of McLean Plaintiffs [#93]1 filed November 7, 2011. The McLean
plaintiffs filed a response [#114], and the United States filed a reply [#116]. I grant the
motion.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
under 28 U.S.C. § 1346(b)(1) (Federal Tort Claims Act).
II. STANDARD OF REVIEW
The United States’ motion to dismiss raises issues under Fed. R. Civ. P.
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“[#93]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
12(b)(1). A motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1) may consist of either a facial or a factual attack on the complaint. Holt v.
United States, 46 F.3d 1000, 1002 (10th Cir. 1995). Here, the United States presents a
factual attack. When reviewing a factual attack on subject matter jurisdiction, I may not
presume the truthfulness of the complaint's factual allegations. Id. at 1003. Further, I
may consider affidavits and other documents to resolve disputed jurisdictional facts,
without converting the motion to dismiss to a motion for summary judgment.. Id. The
plaintiff bears the burden of establishing that subject matter jurisdiction exists. Henry v.
Office of Thrift Supervision, 43 F.3d 507, 512 (10th Cir. 1994).
III. ANALYSIS
This case concerns claims against the United States under the Federal Tort
Claims Act (FTCA). The United States’ motion to dismiss [#93] concerns the claims of
plaintiffs James McLean, Theresa McLean, Jaclyn McLean, Josef McLean (the McLean
plaintiffs). Initially, the McLean plaintiffs brought their FTCA claims in Civil Action No.
11-cv-02253. That case is one of several cases now consolidated under Civil Action
No. 10-cv-03050. The McLean plaintiffs’ claims are based on the crash of a commercial
airliner in Denver, Colorado, on December 20, 2008. The plaintiffs allege that the
negligence of the United States, acting in the guise of the Federal Aviation
Administration (FAA), caused the crash and the plaintiffs’ injuries. The plaintiffs allege
the FAA was negligent when it failed to provide proper wind information to the pilots of
the airplane.
According to the United States, the McLean plaintiffs’ FTCA claims are barred
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because the United States did not receive the administrative claims of the McLean
plaintiffs until more than two years after their claims accrued. Under 28 U.S.C. §
2401(b), a “tort claim against the United States shall be forever barred unless it is
presented in writing to the appropriate Federal agency within two years after such claim
accrues . . . .” The presentment requirement of § 2401 is not satisfied until the claim is
received by the appropriate agency. Anderberg v. U.S., 718 F.2d 976, 977 (10th Cir.
1983) (concerning request for reconsideration of a denial of an administrative claim).
As the Anderberg court noted, 28 C.F.R. § 14.2(a) provides:
For purposes of the provisions of 28 U.S.C. § 2401(b) ... a claim shall be
deemed to have been presented when a Federal agency receives from a
claimant ... an executed Standard Form 95 or other written notification of
an incident ... accompanied by a claim for money damages in a sum
certain ....
Anderberg, 718 F.2d at 977.
On December 20, 2010, exactly two years after the crash, the McLean plaintiffs
mailed their administrative claims to the Federal Aviation Administration (FAA). The
FAA received the claims on December 28, 2010. The FAA rejected the claims as
untimely. If the claims received by the FAA on December 28, 2010, are to be
considered to be timely under § 2401(b), the McLean plaintiffs’ claims must have
accrued on or after December 28, 2008, the date two years prior to the FAA’s receipt of
the McLean plaintiffs’ claims. The United States contends that the plaintiffs’ claims
accrued on the day of the crash, December 20, 2008. If under the applicable law
December 20, 2008, is the lawful accrual date, then the McLean plaintiffs’ claims were
presented to the FAA more than two years after those claims accrued.
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In their response [#114] to the motion to dismiss, the McLean plaintiffs argue that
their claims against the United States did not accrue on the day of the crash. According
to the McLean plaintiffs, their claims did not accrue until April 20, 2009. On April 20,
2009, the National Transportation Safety Board (NTSB) released its first factual report
concerning the crash. Via this report, the McLean plaintiffs argue, they first learned
critical facts showing the culpability of the United States for their injuries. The McLean
plaintiffs attached a copy of the April 20, 2009, report to their response to the motion to
dismiss. Response [#114], Exhibit A [#114-1].
Under § 2401, accrual of a claim does not “await awareness by the plaintiff that
his injury was negligently inflicted.” U.S. v. Kubrick, 444 U.S. 111, 123 (1979).
A plaintiff such as Kubrick, armed with the facts about the harm done to
him, can protect himself by seeking advice in the medical and legal
community. To excuse him from promptly doing so by postponing the
accrual of his claim would undermine the purpose of the limitations
statute, which is to require the reasonably diligent presentation of tort
claims against the Government.
Id.
Addressing accrual of a FTCA claim based on an airplane crash, the United
States Court of Appeals for the Sixth Circuit concluded as follows:
Plane crashes by their nature typically involve negligence somewhere in
the causal chain; and the mere fact of the event is thus typically enough to
put the plaintiff on inquiry notice of his claim. If the record further reveals
that the plaintiff “should have been able to determine in the two-year
period whether to file an administrative claim [,]” McIntyre, 367 F.3d [38]
at 53 [1st Cir. 2004], then there is no reason to depart from the general rule
that accrual occurs upon injury.
Hertz v. U.S., 560 F.3d 616, 619 (6th Cir. 2009). In Hertz, a NTSB investigator told the
plaintiff, one month after the airplane crash, that the cause of the crash was related to
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air traffic controller negligence. However, for some reason, the plaintiff did not file her
FTCA claim within “the remaining 22 months of the period prescribed by Congress.” Id.
In the present case, the crash occurred and the McLean plaintiffs were injured on
December 20, 2008. According to the plaintiffs, they first learned on April 20, 2009, that
air traffic controller negligence may have been a cause of the crash. This information
came to light, according to the plaintiffs, in the NTSB’s first factual report about the
crash. As in Hertz, for some reason the McLean plaintiffs did not file their FTCA claim
within the remaining 20 months of the period prescribed by Congress in § 2401.
Given the requirement of § 2401, as construed in Kubick, Andberg, and Hertz, I
find and conclude that the McLean plaintiffs’ claims accrued on the day of the crash,
December 20, 2008. Their administrative claims were not presented to the FAA until
December 28, 2010, more than two years after their claims accrued. Under § 2401(b),
their FTCA claims are “forever barred” because their claims were not “presented in
writing to the appropriate Federal agency within two years after” their claims accrued.
28 U.S.C. § 2401(b).
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Defendant United States of America’s Motion to Dismiss Claims
of McLean Plaintiffs [#93] filed November 7, 2011, is GRANTED;
2. That under FED. R. CIV. P. 12(b)(1), the claims of plaintiffs James McLean,
Theresa McLean, Jaclyn McLean, and Josef McLean, brought under the Federal Tort
Claims Act, are DISMISSED with prejudice;
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3. That plaintiffs James McLean, Theresa McLean, Jaclyn McLean, and Josef
McLean, are DROPPED as plaintiffs in Civil Action No. 11-cv-02253, which is
consolidated with Civil Action No. 10-cv-03050, and the caption in Civil Action No. 11cv-02253 shall be AMENDED accordingly.
Dated September 20, 2012, at Denver, Colorado.
BY THE COURT:
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