Krause et al v. United States of America
OPINION AND ORDER GRANTING 14 MOTION to Dismiss for Failure to State a Claim by Defendant United States of America; DENYING AS MOOT 14 ALTERNATIVE MOTION for Summary Judgment by Defendant United States of America. The Complaint is DISMISSED WITH PREJUDICE. Signed by Chief Judge Theresa L Springmann on 3/21/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
KACIE KRAUSE and MARCUS
HARVEY, individually and on behalf
of K.H., a minor,
UNITED STATES OF AMERICA,
CAUSE NO.: 2:16-CV-209-TLS
OPINION AND ORDER
This matter comes before the Court on Defendant United States of America’s Motion to
Dismiss or, alternatively, Summary Judgment [ECF No. 14], filed on December 13, 2016.
Plaintiffs Kacie Krause and Marcus Harvey, individually and on behalf of K.H., a minor, filed a
Complaint [ECF No. 1] on June 7, 2016. The Defendant moved to dismiss pursuant to Rule
12(b)(6), asserting that the Complaint fails to state a claim upon which relief can be granted.
Alternatively, the Defendant moved for summary judgment on all of the Plaintiffs’ claims. This
matter is now ripe for the Court’s review.
FACTUAL AND PROCEDURAL BACKGROUND
On June 28, 2010, Plaintiff Krause was admitted to “St. Catherine Hospital, in East
Chicago, Indiana . . . for the birth of her child, K.H.” (Compl. ¶ 1, ECF No. 1.) Plaintiff Harvey
was the biological father of K.H. (Id. ¶ 10.) At the Hospital, Dr. Keith M. Ramsey “car[ed] for
and treat[ed] Krause during the labor and delivery of . . . K.H.,” whom Plaintiff Krause “had
never met with or been treated by before.” (Id. ¶¶ 3, 8.) Ramsey was allegedly an employee at
“NorthShore Health Centers, Inc., . . . a federally supported health facility,” and Plaintiff Krause
“had never received medical treatment at . . . [or] been a patient of NorthShore Healthcare
Centers, Inc.” (Id. ¶¶ 5–6.) Ramsey’s delivery of K.H. allegedly resulted in numerous
complications and injuries. (See id. ¶ 8a–8e.)
On September 9, 2011, the Plaintiffs “filed a Proposed Complaint with the Indiana
Department of Insurance . . . against Ramsey alleging negligent medical care.” (Id. ¶ 11.) During
that lawsuit, Cause No. 45D01-1208-CT-178,1 Ramsey allegedly “concealed and/or otherwise
failed to disclose . . . that he was an employee and/or agent of a federally supported health
facility and subject to the Federal Tort Claims Act until June 17, 2013.” (Id. ¶ 13.) “On March 5,
2015, the Lake County Superior Court . . . found that Ramsey was an employee of a federally
funded healthcare facility.” (Id. ¶ 14.)
Then, on April 3, 2015, the Plaintiffs submitted an administrative claim to the HHS
regarding the events of June 28, 2010. (HHS Compl. 1–6, ECF No. 1-1.) On August 19, 2015,
the HHS denied the Plaintiffs’ administrative claim and its “denial letter was delivered on
August 24, 2015.” (Recio Decl. ¶¶ 4–6, ECF No. 15-4.) The Plaintiffs filed this Complaint on
June 7, 2016, which the Defendant moved to dismiss on December 13, 2016. On February 9,
2017, the Plaintiffs filed a Notice [ECF No. 18] that they would not respond to or seek a hearing
on the Defendant’s Motion.
In its Motion, the Defendant offered evidence that this state court case was removed to federal
court on September 25, 2013, under Cause No. 2:13-CV-345-PPS. (Mot. Dismiss 2, ECF No. 15.) Once
in federal court, the Defendant moved to dismiss “due to Plaintiffs’ failure to exhaust administrative
remedies” because they had “never filed an administrative tort claim with the Department of Health and
Human Services (HHS), prior to initiating their” state court case. (Id. (citing Torres Decl. ¶¶ 4–5, ECF
No. 15-5.) The Defendant was subsequently dismissed without prejudice from that case, with the “case
against the remaining defendants . . . remanded back” to state court. (Id. at 3.)
STANDARD OF REVIEW
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint and not the merits of the suit. Gibson v. City of Chi., 910 F.2d 1510,
1520 (7th Cir. 1990). The court presumes all well-pleaded allegations to be true, views them in
the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn
from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir.
The Supreme Court has articulated the following standard regarding factual allegations
that are required to survive dismissal:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his
“entitlement to relief” requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, ellipsis, citations, and
footnote omitted). A complaint must contain sufficient factual matter to “state a claim that is
plausible on its face.” Id. at 570. “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). Although the court must accept as true all well-pleaded facts and draw all permissible
inferences in the plaintiff’s favor, it need not accept as true “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly at
555). Legal conclusions can provide a complaint’s framework, but unless well-pleaded factual
allegations move the claims from conceivable to plausible, they are insufficient to state a claim.
Id. at 680. Determining whether a complaint states a plausible claim for relief requires a
reviewing court to “draw on its judicial experience and common sense.” Id. at 679.
Plaintiffs can also plead themselves out of court if the allegations clearly establish all the
elements of an affirmative defense, including the defense that the action was filed after the
statute of limitations period expired. Chi. Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d
610, 613–14 (7th Cir. 2014); see also Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir. 2011)
(“[W]hen the allegations of the complaint reveal that relief is barred by the applicable statute of
limitations, the complaint is subject to dismissal for failure to state a claim.”); United States v.
Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (citing exception to the rule that complaints do not have
to anticipate affirmative defenses to survive a motion to dismiss where “the allegations of the
complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a
complaint plainly reveals that an action is untimely under the governing statute of limitations”);
Tregenza v. Great Am. Comm’ns Co., 12 F.3d 717, 718 (7th Cir. 1993) (noting that even though
a plaintiff is not required to negate a statute of limitations affirmative defense in his complaint,
“if he pleads facts that show that his suit is time-barred or otherwise without merit, he has
pleaded himself out of court”).
Rule 12(b) requires that a court treat a motion to dismiss as one for summary judgment
under Rule 56 when “matters outside the pleadings are presented to and not excluded by the
court.” Fed. R. Civ. P. 12(b). Despite the language of Rule 12(b), a court has the option to
convert the motion to one for summary judgment and consider the documents, or to ignore the
documents and confine its analysis to the motion to dismiss. Id. 12(d); Tierney v. Vahle, 304 F.3d
734, 738 (7th Cir. 2002); Venture Ass’n Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th
Cir. 1993). Finally, a court may also take judicial notice of matters of public record without
converting a Rule 12(b)(6) motion into a motion for summary judgment. Henson v. CSC Credit
Servs., 29 F.3d 280, 284 (7th Cir. 1994) (citing United States v. Wood, 925 F.2d 1580, 1582 (7th
Cir. 1991)); see also Ennega v. Starns, 677 F.3d 766, 773–74 (7th Cir. 2012) (noting that the
affirmative defense of the statute of limitations may sometimes “be resolved at the motion-todismiss stage based on the allegations in the complaint and a few undisputable facts within [a
court’s] judicial-notice power”).
This Court has jurisdiction over the Complaint pursuant to the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2674. The Defendant moves to dismiss the Complaint for failure to state a
claim on the grounds that the Plaintiffs’ administrative claim with the HHS was untimely or,
alternatively, that the Plaintiffs’ lawsuit was untimely. The Plaintiffs filed a Notice that they did
“not intend to file a Response” to the Defendant’s Motion. (Notice 1, ECF No. 18.)
“Generally, an individual may not sue the United States for tortious conduct committed
by the government or its agents.” Williams v. Fleming, 597 F.3d 820, 822 (7th Cir. 2010) (citing
United States v. Navajo Nation, 556 U.S. 287, 289 (2009) (“The Federal Government cannot be
sued without its consent.”). However, Congress created an exception through § 2674 of the
FTCA, whereby a suit is permitted against the United States
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, under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
Critically, plaintiffs may not bring an FTCA claim unless they first presented their claim
to the appropriate federal agency and the agency denied the claim. See 28 U.S.C. § 2675(a);
McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing
suits in federal court until they have exhausted their administrative remedies.”); Smoke Shop,
LLC v. United States, 761 F.3d 779, 786 (7th Cir. 2014) (“[T]he FTCA bars would-be tort
plaintiffs from bringing suit against the government unless the claimant has previously submitted
a claim for damages to the offending agency, because Congress wants agencies to have an
opportunity to settle disputes before defending against litigation in court.”) (citation omitted).
The claim must be presented in writing to the appropriate Federal agency within two years after
the claim accrues, and the plaintiff must then file suit within six months of the agency’s denial of
the claim. 28 U.S.C. § 2401(b).2 The United States Supreme Court has held that because the
FTCA represents a waiver of sovereign immunity, its provisions must be strictly construed. See
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990); see also Palay v. United States, 349
F.3d 418, 425 (7th Cir. 2003) (“A plaintiff’s failure to exhaust administrative remedies before he
brings suit mandates dismissal of the claim.”) (citing McNeil, 508 U.S. at 113).
The Defendant contends that the Plaintiffs “did not submit a claim to the Department of
Health and Human Services until April 3, 2015,” which was “almost five years after the accrual
of the claim.” (Mot. Dismiss 7.) Alternatively, the Defendant notes that the HHS denied the
Plaintiffs’ administrative claim on August 19, 2015, that “the denial letter was delivered to
counsel on August 24, 2015,” and that “the Plaintiffs did not file this lawsuit until June 7, 2016,”
outside of the six-month limitations window (Id. at 8.) The Court agrees with the Defendant.
Even assuming that the Plaintiffs’ administrative complaint to the HHS was timely when filed in
April 2015, the present lawsuit was filed more than 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.” 28 U.S.C. § 2401(b). Accordingly, this lawsuit is time-barred.
The Court notes that the Seventh Circuit does not treat compliance with the FTCA’s exhaustion
requirement as a jurisdictional prerequisite, but instead as a “condition precedent to the plaintiff’s ability
to prevail.” Smoke Shop, 761 F.3d at 786–87 (internal quotation marks and citation omitted).
For the reasons stated above, Defendant United States of America’s Motion to Dismiss
[ECF No. 14] is GRANTED, and the alternative Motion for Summary Judgment is DENIED AS
MOOT. The Complaint [ECF No. 1] is DISMISSED WITH PREJUDICE.
SO ORDERED on March 21, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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