Boege et al v. Gallagher et al
Filing
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ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS: "On the basis of the foregoing, the United States' Motion to Dismiss of Defendant United States, filed on April 25, 2011, is HEREBY GRANTED, and Plaintiff's amended complaint, filed February 9, 2011, is DISMISSED WITHOUT PREJUDICE as to the filing of a new action. The Clerk of Court is directed to close theinstant case. IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on July 11, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WARREN BOEGE and LAURA BOEGE, )
)
Plaintiffs,
)
)
vs.
)
)
BRIGADIER GENERAL GALLAGHER
)
and TRIPLER ARMY MEDICAL
)
CENTER,
)
)
)
Defendants.
_____________________________ )
CIVIL NO. 10-00565 LEK-KSC
ORDER GRANTING DEFENDANT UNITED STATES
OF AMERICA’S MOTION TO DISMISS
Before the Court is Defendant United States of
America’s (“United States”) Motion to Dismiss of Defendant United
States (“Motion”), filed on April 25, 2011.
[Dkt. no. 18.]
Pro
se Plaintiff Laura N. Boege, personally and as personal
representative on behalf of the Estate of Warren R. Boege
(“Plaintiff”), did not file a memorandum in opposition to the
Motion.
This matter came on for hearing on July 5, 2011.
Appearing on behalf of the United States was Assistant United
States Attorney Thomas Helper.
Plaintiff appeared by phone.
After careful consideration of the Motion, the parties’ arguments
at the hearing, and the relevant legal authority, the United
States’ Motion is HEREBY GRANTED for the reasons set forth below.
DISCUSSION
On September 27, 2010, pro se Plaintiff filed a Federal
Tort Claims Act (“FTCA”) claim against Tripler Army Medical
Center (“TAMC”), the Department of Veteran Affairs Pacific
Islands Health Care System, and the Veteran Affairs Medical
Centers at Togus, Maine, Salisbury, North Carolina, and Durham,
North Carolina with the Department of Veteran Affairs.
[Motion,
Decl. of Miles Miyamoto (“Miyamoto Decl.”), (dkt. no. 18-2), at ¶
2; Miyamoto Decl., Exh. A (dkt. no. 18-3) (letter dated 3/18/11
to Plaintiff from Suzanne Will, Regional Counsel, Department of
Veterans Affairs) (“VA Letter”) at 1.]
On September 29, 2010,
Plaintiff filed an FTCA claim form as her complaint in the
instant case naming the United States, TAMC, and Brigadier
General Gallagher as defendants.
On February 9, 2011, Plaintiff
filed an amended complaint listing the United States as the sole
defendant.
[Dkt. no. 10.]
On March 18, 2011, the Department of
Veteran Affairs denied plaintiff’s administrative FTCA claim.
[VA Letter at 1.]
The instant case and the administrative claim
are based on the same cause of action: medical negligence
resulting in the death of Warren R. Boege.
[Amended Complaint at
1; VA Letter at 1.]
On June 22, 2011, this Court issued its Inclination
Regarding Motion to Dismiss of Defendant United States
(“Inclination”), [dkt. no. 21,] informing the parties that it was
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inclined to grant the Motion and dismiss the amended complaint
without prejudice.
[Inclination at 2.]
The Court ordered the
parties to file statements stating whether or not they objected
to its Inclination and identifying the grounds for any such
objections.
[Id.]
The Court also informed the parties that it
was treating the original complaint, filed September 29, 2010, as
non-existent.
[Id. (citing Rhodes v. Robinson, 621 F.3d 1002,
1005 (9th Cir. 2010)).]
On June 23, 2011, the United States filed its statement
in response to the Inclination stating that it agreed with the
Inclination.
[Dkt. no. 23.]
Plaintiff did not file a response.
The FTCA bars actions based upon claims “against the
United States for money damages for injury or loss of property or
personal injury or death caused by the negligent or wrongful act
or omission of any employee of the Government while acting within
the scope of his office or employment” from being filed in
federal courts before either: (1) an administrative agency denies
the claim in writing; or (2) six months elapse from the time the
claim is filed with the agency.
28 U.S.C. § 2675(a); see also
McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars
claimants from bringing suit in federal court until they have
exhausted their administrative remedies.”).
Insofar as the
exhaustion of administrative remedies under the FTCA is a
jurisdictional requirement, a plaintiff cannot cure the premature
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filing of an FTCA complaint simply by filing an amended
complaint.
See, e.g., Hurt v. Smith, No. 1:09-cv-00698-MJS (PC),
2011 WL 43474, at *3 (E.D. Cal. Jan. 6, 2011) (“Plaintiff must
commence a new suit in order for the Court to have subject matter
jurisdiction over his FTCA claims against the United States.”);
Estate of Przysiecki ex rel. Przysiecki v. Eifert, No. 07cv0039
WQH (RBB), 2007 WL 3306074, at *2 (S.D. Cal. Nov. 2, 2007) (“As a
general rule, a premature complaint cannot be cured through
amendment, but instead the claimant must file a new suit.”
(citations and footnote omitted)).
Once an administrative agency
denies a claim, the claimant “may file suit in an appropriate
U.S. District Court not later than 6 months after the date of
mailing of the notification.”
28 C.F.R. § 14.9.
In the instant case, Plaintiff violated § 2675(a) by
filing her claim in this district court before either the
Department of Veteran Affairs denied her claim on March 18, 2011,
or six months elapsed from September 27, 2010, the date Plaintiff
filed her administrative claim.
Accordingly, the Court DISMISSES
Plaintiff’s amended complaint WITHOUT PREJUDICE.
Pursuant to §
14.9, Plaintiff has “6 months after the date of mailing of the
notification” the from Department of Veteran Affairs to refile
her suit in an appropriate federal court.
As a final matter, the Court informs Plaintiff that
“courts have routinely adhered to the general rule prohibiting
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pro se plaintiffs from pursuing claims on behalf of others in a
representative capacity.”
Simon v. Hartford Life, Inc., 546 F.3d
661, 664 (9th Cir. 2008) (citations and footnote omitted); accord
Moore v. Nat’l City Mortg. Co., Cv. No. 09-00461 DAE-KSC, 2010 WL
2176456, at *5 (May 25, 2010) (citations omitted) (“An attorney
must represent a personal representative before the court where
an estate has multiple beneficiaries and creditors.”).
If
Plaintiff refiles this suit in her capacity as personal
representative of the Estate of Warren R. Boege, and said estate
has multiple beneficiaries and creditors, she must retain an
attorney to represent her in her capacity as personal
representative.
CONCLUSION
On the basis of the foregoing, the United States’
Motion to Dismiss of Defendant United States, filed on April 25,
2011, is HEREBY GRANTED, and Plaintiff’s amended complaint, filed
February 9, 2011, is DISMISSED WITHOUT PREJUDICE as to the filing
of a new action.
The Clerk of Court is directed to close the
instant case.
IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAII, July 11, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
WARREN BOEGE, ET AL. V. BRIGADIER GENERAL GALLAGHER, ET AL; CIVIL
NO. 10-00565 LEK-KSC; ORDER GRANTING DEFENDANT UNITED STATES OF
AMERICA’S MOTION TO DISMISS
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