Krueger et al vs United States of America

Filing 13

MEMORANDUM AND ORDER GRANTING DEFENDANTS MOTION TO DISMISS COUNT II OF THE COMPLAINT (Doc. 3). Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NORMA J. KRUEGER and
MARVIN KRUEGER,
Plaintiff,
vs.

Case No. 16-13493

UNITED STATES OF AMERICA,

HON. AVERN COHN

Defendant.
__________________________________________/
MEMORANDUM AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
COUNT II OF THE COMPLAINT (Doc. 3)1
I. Introduction
This is a case under the Federal Tort Claims Act, 28 U.S.C. § 2671 (FTCA).
Plaintiffs Norma Krueger and her husband, Marvin Krueger are suing defendant United
States of America (the government) regarding a car accident with a postal truck. The
complaint is in two counts:
Count I - negligence
Count II - loss of consortium
Before the Court is the government’s motion to dismiss count II on the grounds
that it is time-barred. For the reasons that follow, the motion will be granted.
II. Background
Norma J. Krueger and Marvin Krueger were involved in a car accident on
October 30, 2013.
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Upon review of the parties’ papers, the Court deems these matters appropriate for
decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).

Plaintiffs claim that a United States Postal Service employee, acting in the course
of employment, negligently caused the accident, injuring Norma Krueger.
Marvin Krueger does not assert that he was injured in the auto accident. Rather,
he seeks damages for a loss of companionship, comfort, aid, support, and participation
in the marital relationship stemming from injuries to his wife.
Marvin Krueger presented an administrative claim for his injuries to the Postal
Service on May 29, 2014.
The Postal Service denied Plaintiff Marvin Krueger’s administrative claim on
December 14, 2015.
Plaintiffs filed their complaint on September 27, 2016.
III. Legal Standard
A Rule 12(b)(6) motion tests the sufficiency of a plaintiff’s pleading. The Rule
requires that a complaint “contain something more . . . than . . . a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007)(internal citation omitted). 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.”
Id. “[T]hat a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of all the elements of a cause of
action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556
U.S. 662; 129 S. Ct. 1937, 1949 (2009). The court is “not bound to accept as true a
legal conclusion couched as a factual allegation.”
In ruling on a motion to dismiss, the Court may consider the complaint as well as
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(1) documents referenced in the pleadings and central to plaintiff's claims, (2) matters of
which a court may properly take notice, (3) public documents, and (4) letter decisions of
government agencies may be appended to a motion to dismiss. Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 2509 (2007).
IV. Discussion
A.
“The United States, as sovereign, is immune from suit save as it consents to be
sued[.]” United States v. Sherwood, 312 U.S. 584, 586 (1941). The FTCA provides a
limited waiver of the national government's immunity from suit for torts committed by
federal employees and places several conditions on the waiver. Ellison v. United
States, 531 F.3d 359, 361 (6th Cir. 2008). Two such conditions are the two separate
limitations periods set forth in Section 2401(b) of the FTCA, the latter of which is at
issue in the instant motion:
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.
28 U.S.C. § 2401(b). The Sixth Circuit has held that a plaintiff must meet both of these
limitations periods in order to have plead a viable FTCA suit. Ellison, 531 U.S. at 361.
B.
The government says that although Marvin Krueger met 28 U.S.C. § 2401(b)’s
first limitations period when he filed his administrative claim within two years of its
accrual, he did not meet the second limitations period because he did not file suit within
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six-months of the final denial of his administrative claim. The Court agrees.

The

Postal Service denied Marvin Krueger’s administrative claim on December 14, 2015.
Plaintiffs then waited more than 10 months before filing suit. As such, his claim is
clearly untimely.
Plaintiffs, however, say that (1) Marvin Krueger’s claim was derivative of Norma
Krueger’s timely claim and therefore should be deemed timely. This argument does not
carry the day. Michigan law is clear that a claim for loss of consortium is an
independent action. See Eide v. Kelsey-Hayes Co., 431 Mich. 26, 29, 427 N.W.2d 488,
489 (1988) (“Thus, [Michigan] courts have consistently treated loss of consortium not as
an item of damages, but as a separate cause of action.”).
The Sixth Circuit rejected a similar argument in Rucker v. U.S. Dep’t of Labor,
798 F.2d 891 (6th Cir. 1986). In Rucker, the plaintiff argued that a husband and wife
had exhausted their administrative remedies when the husband filed an administrative
claim and listed his wife on his claim but his wife did not submit her own administrative
claim. The Sixth Circuit disagreed and “conclude[d],as have other courts that have
addressed precisely this issue, that identifying a claimant’s wife on a Standard Form 95,
without more, is not sufficient to fulfill the jurisdictional requirement of 28 U.S.C. §
2675(a).” Rucker, 798 F.3d at 893. See also Withrow v. United
States, 2005 WL 2403730, at *7 (E.D. Ky. Sept. 28, 2005) (“The Sixth Circuit has held
that merely identifying a spouse on a claim form does not satisfy the section 2675(a)
requirement of filing an administrative claim with the appropriate agency for loss of
spousal consortium, thus not providing adequate notice of a claim.”)
Here, Marvin Krueger properly filed his own administrative claim. His claim
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covers any and all damages that he sustained in the auto accident. However, as in
Rucker, he cannot rely on Norma Krueger’s timely claim to render his separate claim
timely.
Plaintiffs also argue that they are entitled to equitable tolling to excuse the
untimely filing. In United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015), the
Supreme Court held that “the FTCA's time bars are nonjurisdictional and [are] subject to
equitable tolling.” However, courts apply equitable tolling “sparingly” in the FTCA
context and do not equitably toll the FTCA's limitations period “when there has only
been a garden variety claim of excusable neglect.” Bazzo v. United States, 494
F. App’x 545, 547 (6th Cir. 2012) (quoting Chomic v. United States, 377 F.3d 607,
615 (6th Cir. 2004)). The party seeking equitable tolling “bears the burden of proving
entitlement to it.” Bazzo, 494 F. App’x at 547 (quoting Robertson v. Simpson, 624 F.3d
781, 784 (6th Cir. 2010)).
The Sixth Circuit considers the following five factors when determining whether
equitable tolling is available to a plaintiff under the FTCA:
(1) the plaintiff's lack of notice of the filing requirement;
(2) the plaintiff's lack of constructive knowledge of the
filing requirement; (3) the plaintiff's diligence in pursuing
her rights; (4) an absence of prejudice to the defendant;
and (5) the plaintiff's reasonableness in remaining ignorant
of the particular legal requirement.
Jackson v. United States, 751 F.3d 712, 719 (6th Cir. 2014).
Plaintiffs have failed to show that they are entitled to equitable tolling under the
five factors listed above. Marvin Krueger had actual notice in the denial letter of
December 14, 2015, that he had six months within which to act. He did not act within
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that time. Moreover, plaintiffs had no trouble meeting the deadlines for pursuing Norma
Krueger’s claim. At best, Marvin Krueger’s failure to timely file suit is a “garden variety
claim of excusable neglect” to which equitable tolling does not apply. Irwin v. Dep’t of
Veterans Affairs, 489 U.S. 89, 96 (1990).
V. Conclusion
Because Marvin Krueger did not file a law suit within six months of the final denial
of his administrative claim, his claim is untimely. Accordingly, the government’s motion
to dismiss is GRANTED. Count II is DISMISSED.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: February 8, 2017
Detroit, Michigan

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