Lukas v. United States of America

Filing 35

District Judge Timothy S Hillman: ORDER AND MEMORANDUM OF DECISION entered granting 9 Motion to Amend and denying 21 Motion to Amend. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
STEPHEN LUKAS,
)
)
Plaintiff,
)
)
CIVIL ACTION
v.
)
)
NO. 14-40152-TSH
UNITED STATES OF AMERICA,
)
)
Defendant.
)
___________________________
)
ORDER AND MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR
LEAVE TO AMEND COMPLAINT TO ADD CORRENA LUKAS AS PLAINTIFF AND
PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD CAMERON
MACKAY AS DEFENDANT
September 24, 2015
HILLMAN, D.J.
Pending before the Court are Plaintiff’s motions to (1) amend his complaint to add Correna
Lukas as a plaintiff; and (2) amend his complaint to add Cameron MacKay as a defendant. For
the following reasons, Plaintiff’s motion is granted with respect to adding Correna Lukas as a
plaintiff and denied with respect to adding Cameron Mackay as a defendant.
Background
On November 4, 2011, Stephen Lukas (Plaintiff) and Cameron MacKay were involved in
a motor-vehicle accident in Leominster, MA. Plaintiff alleges that his vehicle was struck from
behind by a vehicle driven by MacKay and that he suffered significant injuries as a result. Plaintiff
brought suit against MacKay in Superior Court; on July 17, 2013, during the course of discovery,
Plaintiff learned that MacKay had been employed by the United States Navy at the time of the
accident.

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On October 28, 2013, Plaintiff filed an administrative claim with the Office of the Judge
Advocate General pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, seeking to recover
from the United States damages for his injuries. Nearly one year later, on October 17, 2014,
Plaintiff’s wife, Correna Lukas, filed an administrative claim for her own damages relating to
Plaintiff’s injuries. Four days after that, Plaintiff filed suit against the United States in this Court,
alleging negligence and negligent infliction of emotional distress. On February 6, 2015, both
Plaintiff’s and Correna Lukas’s administrative claims were denied by the Office of the Judge
Advocate General. Plaintiff then moved on April 6, 2015 to amend his complaint to add Correna
Lukas as a plaintiff in this lawsuit, so that she could assert her own claims for the loss of her
husband’s consortium. On July 6, 2015, Plaintiff filed an additional motion to amend his
complaint, this time to add Cameron MacKay as a defendant.
Discussion
Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend his or her
complaint before trial with the court’s leave, and “[t]he court should freely give leave when justice
so requires.” Fed. R. Civ. P. 15(a)(2). The grant or denial is within the discretion of this Court.
Foman v. Davis, 371 U.S. 178, 182 (1962). Leave should be freely given absent an apparent or
declared reason, “such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of amendment . . . .”
Klunder v. Brown Univ., 778 F.3d 24, 34 (1st Cir. 2015) (quoting Foman, 371 U.S. at 182).
1. Motion for Leave to Amend to Add Correna Lukas as Plaintiff
Plaintiff argues that his motion should be granted because it would be in the interest of
justice to allow Correna Lukas to assert her claim for loss of consortium alongside her husband’s

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personal-injury claims. Plaintiff further asserts that Correna Lukas’s claim is timely because it did
not accrue until Plaintiff learned that MacKay had been employed by the United States Navy. The
United States, for its part, argues that Plaintiff’s motion should be denied on the ground of futility;
specifically, the United States avers that Correna Lukas’s loss-of-consortium claim is barred
because she failed to file an administrative claim within two years of the accident.
“It is ‘elementary’ that the United States, as sovereign, is immune from suit unless it has
consented to be sued.” Skwira v. United States, 344 F.3d 64, 72 (1st Cir. 2003) (quoting United
States v. Mitchell, 445 U.S. 535, 538 (1980)). The Federal Tort Claims Act (FTCA) “expressly
waives the government’s sovereign immunity, permitting individuals to sue the government ‘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.’” Skwira, 344 F.3d at 73 (quoting 28 U.S.C. § 1346(b)). There are, however,
constraints on this waiver, one of which is a statute of limitations: “‘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.’” Id. (quoting 28 U.S.C. § 2401(b)). “As with all
waivers of sovereign immunity, the Supreme Court has warned that this limitation, which requires
a timely presentation of tort claims against the government, must be strictly construed.” Id. (citing
United States v. Kubrick, 444 U.S. 111, 117-18 (1979)).
The pertinent issue regarding Plaintiff’s motion to add Correna Lukas as a plaintiff is the
determination of when Correna Lukas’s loss-of-consortium claim accrued. If this claim accrued
on the date of the accident in November of 2011, then her administrative claim filed in October of
2014—nearly three years later—would have been untimely. I am of the opinion, however, that

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Correna Lukas’s claim could not have accrued before July 17, 2013, which is the date on which
Plaintiff discovered that MacKay was a federal employee at the time of the accident.
“The general rule, within the meaning of the FTCA, is that a tort claim accrues at the time
of the plaintiff’s injury.” Skwira, 344 F.3d at 73 (citing Attallah v. United States, 955 F.2d 776,
779 (1st Cir. 1991)).   In United States v. Kubrick, 444 U.S. 111, 113 (1979), however, “the
Supreme Court recognized that a ‘discovery’ rule applies in the context of medical malpractice
claims,” meaning that “a claim ‘accrues’ when an injured party ‘knows both the existence and the
cause of his injury.’” Skwira, 344 F.3d at 73 (quoting Kubrick, 444 U.S. at 113). In Skwira, the
First Circuit Court of Appeals extended this discovery rule beyond the realm of medical
malpractice claims to encompass other torts as well. 344 F.3d at 75.
As to the issue of when an FTCA plaintiff learns that the alleged tortfeasor was a federal
employee, the Skwira court held that, in the medical malpractice context, the discovery rule will
not apply to this element of the claim “[a]bsent extraordinary circumstances.” Id. at 76-77 (citing
Gould v. U.S. Dept. of Health & Human Svcs., 905 F.2d 738, 745 (4th Cir. 1990)). Crucially,
however, with regard to a plaintiff’s discovery of a defendant’s federal status in non-medicalmalpractice cases, the Skwira court held as follows:
Outside the medical malpractice context, . . . the identity of the individual(s)
responsible for an injury may be less evident, and a plaintiff may have less reason
to suspect governmental involvement. . . . [O]utside the medical malpractice
context,[] the proper subject of knowledge for accrual purposes under the FTCA is
(1) the fact of injury and (2) the injury’s causal connection with the government.
Skwira, 344 F.3d at 77 (quoting Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir. 1999))
(citing Kubrick, 444 U.S. at 123-24 & n.10).
Accordingly, in determining the accrual date of Correna Lukas’s loss-of-consortium claim,
the discovery rule applies with regard to the date on which she found out that MacKay was a

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federal employee and thus learned that her alleged injury had a “causal connection with the
government.” Id. Although under Massachusetts law a loss-of-consortium claim is independent
of the underlying personal injury claim, the factual predicate to this claim is the accident involving
Plaintiff and MacKay, which allegedly caused the significant injuries to Plaintiff. See Genereux v.
Am. Beryllia Corp., 577 F.3d 350, 363 (1st Cir. 2009) (applying Massachusetts law) (citing Olsen
v. Bell Tel. Labs, Inc., 388 N.E.2d 609, 612 (Mass. 1983)).1 Because Correna Lukas did not learn
of MacKay’s federal employment until July 17, 2013, her claim could not have accrued pursuant
to the FTCA before this date; she filed an administrative action on October 17, 2014, which was
within two years of July 17, 2013. Therefore, her proposed loss-of-consortium claim before this
Court is not barred by the FTCA’s statute of limitations.2
There is no suggestion in this case that Plaintiff has a dilatory motive or has acted in bad
faith in moving to amend his complaint to add Correna Lukas as a plaintiff. See Foman, 371 U.S.
at 182. Furthermore, allowing this amendment will not cause undue delay or prejudice to the
United States, as trial is not imminent and Correna Lukas’s loss-of-consortium claim arises from
the same incident as Stephen Lukas’s direct tort claims. Plaintiff’s motion for leave to amend to
add Correna Lukas as a plaintiff in this lawsuit is granted.

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In FTCA cases, the action is governed by the substantive tort law of the state in which the tortious
act allegedly occurred. 28 U.S.C.A. § 1346(b)(1); Bolduc v. United States, 402 F.3d 50, 56 (1st
Cir. 2005) (citing FDIC v. Meyer, 510 U.S. 471, 478 (1994)).
2
The United States brings my attention to the recent case of Desir v. Steward Health Care Sys.,
LLC, No. 14-CV-13629-ADB, 2015 WL 3682483 (D. Mass. June 15, 2015), and argues that
Plaintiff’s motion should be dealt with in similar fashion. Desir, however, was a case that
concerned the issue of equitable tolling, whereas the issue here is the date upon which Correna
Lukas’s claim accrued.
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2. Motion for Leave to Amend to Add Cameron MacKay as Defendant
Unlike the issue of MacKay’s status as a federal employee, Plaintiff has long been aware
of MacKay’s identity as the driver of the vehicle that allegedly caused his injuries. There is no
indication that MacKay’s identify was unknown at the time of the accident, and Plaintiff filed suit
against MacKay personally in Superior Court in February of 2013. According to Plaintiff, the
Superior Court case was dismissed “once it became apparent that the United States was MacKay’s
employer and needed to be sued in federal court.” (Plaintiff’s Motion to Amend, Docket No. 21,
at 2.) Plaintiff has provided no explanation for why he did not include MacKay as a defendant
when he filed suit in this Court in October of 2014; nor has he explained why he waited nine
months after filing suit to move to amend his complaint to add MacKay as a defendant. In my
opinion, justice does not require granting Plaintiff’s motion under these circumstances. See Foman,
371 U.S. at 182.
Conclusion
For the foregoing reasons, Plaintiff’s Motion for Leave to Amend Complaint to Add
Correna Lukas as Plaintiff (Docket No. 9) is granted, and Plaintiff’s Motion for Leave to Amend
Complaint to Add Cameron MacKay as a Defendant (Docket No. 21) is denied.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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