Estate of Paula O'Connor et al v. United States of America et al

Filing 15

ORDER denying without prejudice 7 Motion to dismiss; granting 13 motion to amend/correct; denying as moot 14 Motion to Abate. Signed by Judge James D. Whittemore on 1/15/2013. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ESTATE OF PAULA O'CONNOR
AND ALIJAH O'CONNOR and ALL
STATUTORY SURVIVORS (pursuant
to Fla. Stat. § 768.21, et seq.),
Plaintiffs,
Case No. 8:12-cv-02070-T-27MAP

vs.
UNITED STATES OF AMERICA, et al.,
Defendants.
______________________________________

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ORDER
BEFORE THE COURT are Defendant's Motion to Dismiss (Dkt. 7), Plaintiffs' Motion to
Amend Complaint (Dkt. 13), and Plaintiffs' Motion to Abate Ruling in Part on Defendant's Motion
to Dismiss (Dkt. 14).
Introduction
The United States moves to dismiss Plaintiffs' Wrongful Death Complaint for Damages on
the grounds that (1) Plaintiffs' claims are time barred under to 28 U.S.C. § 2401 (b); (2) the United
States cannot be held vicariously liable for a tort committed by the assailant who acted outside the
scope of his employment; and (3) Plaintiffs' claims are excepted under the Federal Tort Claims Act
("FTCA,,).l In response, Plaintiffs request that the Court (1) rule on whether Plaintiffs' claims are
barred by the statute of limitations;(2) abate ruling on the remaining issues raised in Defendant's
Motion to Dismiss; and (3) grant them leave to file an amended complaint.

1 Defendant, Ralph Daniel Wright, Jr., who is currently incarcerated and awaiting trial for the murders of Paula
O'Connor and Alijah O'Connor, was served with process on September 28,2012 (Dkt. 6), but failed to file a timely
response to the Wrongful Death Complaint for Damages.

As will be discussed, Defendant's facial attack on subject-matter jurisdiction vis a vis the
statute of limitations cannot be resolved from the face of the pleadings. And because Plaintiffs are
generally entitled to file an amended complaint as a matter of right, see Fed. R. Civ. P. 15(a)(l);
Bryant v. Dupree, 252 F.3d 1161, 1163 (lIth Cir. 2001), Defendant's Motion to Dismiss will be
denied and Plaintiffs will be granted leave to file an amended complaint.
Background
On July 6, 2007, Paula O'Connor and her 14 month old son, Alijah O'Connor, were
murdered by Ralph Daniel Wright, Jr. ("Wright"). See, e.g., Wrongful Death Complaint for
Damages (Dkt. 1), ~35. At the time of the murders, Wright was a United States Air Force Technical
Sergeant stationed at MacDill Air Force Base in Tampa, Florida. See, e.g., id. at ~~ 35,36.
It is undisputed that Plaintiffs filed their Notice of Claim with the United States on August

8,2011, more than four years after the murders. Id. at ~ 7. 2 The United States denied Plaintiffs'
claims on March 16,2012. Id. at ~ 29. Plaintiffs filed this wrongful death action against the United
Stateson September 13,2012, within six months of the denial.
Discussion
The United States argues that Plaintiffs' claims are barred by the limitations period applicable
to claims under the FTCA. The applicable federal statute provides:
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 or unless action is begun within six
months after the date of mailing, by certified or registered mail, of
notice of final denial of the claim by the agency to which it was
presented.

2 Elsewhere in the Wrongful Death Complaint for Damages, Plaintiffs allege that they filed their Notice of
Claim (Form 95) on August 11,2011. See id at, 29.

2

28 U.S.C. § 2401(b) (emphasis addedV The issue is whether Plaintiffs' claims are time barred
because they failed to present their claims to the appropriate federal agency within two years after
their claim accrued. Defendant makes a plausible argument that the claims are time barred.
Under § 2401 (b), the limitations period generally begins to run when a plaintiff suffers injury.

See, e.g., Chamness v. United States, 835 F.2d 1350, 1352 (11 th Cir. 1988); Price v. United States,
775 F.2d 1491, 1493 (11 th Cir. 1985). In wrongful death actions under the FTCA, however, "a
wrongful death claim accrues when the plaintiff knows, or exercising reasonable diligence should
know, both of the decedent's death and its causal connection with the government." Diaz v. United

States, 165 F.3d 1337, 1340 (11 th Cir. 1999).
Defendant points out that although the incident giving rise to Plaintiffs' claims occurred on
July 6,2007, Plaintiffs did not file a Notice of Claim with the United States until four years later,
on August 8, 2011. Defendant argues that, at the very latest, Plaintiffs' claims accrued when Wright
was indicted for the murders on December 18, 2008, and that the two year limitations period expired
on December 18,2010.
Plaintiffs respond that the United States should be estopped from asserting the statute of
limitations as a defense to this action under the theory of equitable estoppel. See Wrongful Death
Complaint for Damages (Dkt. 1), ~ 20. Specifically, Plaintiffs argue that "the two (2) year Statute
of Limitation has either yet to accrue or is tolled until such time Mr. Wright has been convicted of
the murder of decedent Plaintiffs, or based upon [the] extraordinary circumstances of this case and
3 When, as here, federal law expressly provides a limitations period, the applicable limitations period is
governed by federal law. See, e.g., Phillips v. United States, 260 F.3d 1316, 1318 (11 th Cir. 2001). And the question
of when a claim accrues for purposes of the FTCA is a matter of federal law. Id at 13 18-19. The Eleventh Circuit has
recognized that the timely filing of a claim under 28 U .S.C. § 2401 is a prerequisite to federal court jurisdiction under
the FTCA. See Torjagbo v. United States, 285 Fed. App'x 615, 617 (11 th Cir. 2008).

3

the applicable law, under the theory of Equitable Estoppel .... " Plaintiffs' Partial Response to
Defendant's Motion to Dismiss (Dkt. 12), ~ 24.4
Plaintiffs allege in their complaint that the

cond~ct

of the United States and the State

Attorney's Office hindered their ability to investigate the circumstances surrounding the deaths of
Alijah O'Connor and Paula O'Occonor. See, e.g., Wrongful Death Complaint for Damages (Dkt.
1), ~ 13. With respect to the United States, Plaintiffs allege:
•

"[O]ther than a general denial of this claim, the Air force [sic], has remained
silent and has not provided the survivors or their attorneys with any information
and over the years have [sic] either ignored or avoided survivor's phone calls and
attempts to obtain information." Id. at ~ 17.

•

"[B]ased upon the 'code of silence'" and the "Airforce's [sic] conduct, the USA
should be estopped from asserting any potential defense to the untimeliness of
this lawsuit or the statute oflimitations, under the theory of equitable estoppel."
Id. at ~~ 19,20.

Plaintiffs further contend that, given the pendency of the criminal trial against Wright, the statute of
limitations governing Plaintiffs' claim has yet to be triggered. See, e. g., Plaintiff s Partial Response
to Defendant's Motion to Dismiss (Dkt. 12), ~ 39.
In support of their claim that equitable tolling applies, Plaintiffs cite Irwin v. Department of

Veteran Affairs, 498 U.S. 89 (1990). In Irwin, the Court found that equitable tolling applies to suits
against the Government, but observed that "[t]ederal courts have typically extended equitable relief
only sparingly." 498 U.S. at 96. 5

4 Federal courts, including courts in this Circuit, appear divided as to whether the doctrine of equitable tolling
or equitable estoppel applies to claims under the FTCA. Compare S.R. v. United States, 555 F.Supp.2d. 1350 (S.D. Fla.
2008) (FTCA' s two-year limitations period was subject to equitable tolling), with Ramos v. United States Dep 't o/Health
and Human Services, 429 Fed. App'x 947 (11 th Cir. 2011) (assuming, without deciding, that equitable tolling may apply
to claims brought under the FTCA).
5

Subsequently, the holding in Irwin was limited by the Court with respect to tax cases. see United States v.

Brockamp, 519 U.S. 347 (1997).

4

Although the Court is not persuaded that (1) equitable tolling applies here, or that (2)
Plaintiffs' allegations relating to their inability to discover the facts giving rise to their claims against
the United States support the application of equitable estoppel against the United States, at this stage
of the pleadings it is not "apparent on the face of the complaint" that Plaintiffs' claims are time
barred by 28 U.S.C. § 2401. In short, when Plaintiffs' claims accrued cannot be determined from the
face of the complaint. Accordingly, Defendant's facial attack on subject-matter jurisdiction cannot
be resolved on its motion to dismiss. See Barnett v. Okeechobee Hosp., 283 F.3d1232, 1237 (11 th
Cir. 2002) (noting that on facial attacks to subject-matter jurisdiction, plaintiffs allegations are
entitled to presumption of truthfulness).
Accordingly, it is ORDERED AND ADJUDGED that:
(1)

Defendant's Motion to Dismiss (Dkt. 7) is DENIED without prejudice.

(2)

Plaintiffs' Motion to Amend Complaint (Dkt. 13) is GRANTED. Plaintiffs are

granted leave to file an Amended Complaint within fourteen (14) days from the date of this Order.
(3)

Plaintiffs Motion to Abate Ruling in Part on Defendants' Motion to Dismiss

(Dkt. 14) is DENIED as moot.
DONE AND ORDERED this

IS:"';y of January, 2013.

~MORE
United States District Judge

Copies to: Counsel of Record

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