Royster v. The United States of America

Filing 12

ORDER granting Defendant's Motion to Dismiss for Failure to State a Claim, or, in the Alternative, for Summary Judgment 6 ; and this case is DISMISSED WITH PREJUDICE. Signed on 1/18/18 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

WILLIAM ROYSTER,

Plaintiff,
CASE NO.: 17-0767-CV-W-FJG

v.

UNITED STATES OF AMERICA,

Defendant.

Pending before the Court is Defendant’s Motion to Dismiss for Failure to State a
Claim, or, in the Alternative, for Summary Judgment (Doc. No. 6). Defendant argues
that plaintiff has failed to file this complaint within the applicable statute of limitations.
I.

Facts
On February 19, 2015, Plaintiff William Royster (“Royster”), a Navy veteran pilot,

submitted to the United States Department of Veterans Affairs (“DVA”) an administrative
tort claim alleging that health care providers at the Kansas City VA Medical Center
(“KCVA”) had negligently diagnosed him as having Bipolar Disorder (which he alleged
permanently grounded him from flying as a commercial pilot for major airlines). On
August 4, 2015, the DVA denied Royster’s administrative claim by letter to his attorney
mailed by certified mail. On October 2, 2015, Royster filed an action in this Court, styled
William Royster v. United States, Case No. 4:15-cv-00768-FJG (the “2015 action”).

In his Complaint in that action (the “2015 Complaint’) Royster alleged that on
April 28, 2004, a KCVA psychiatrist negligently misdiagnosed him as having Bipolar
Disorder, that between then and November 17, 2014, various KCVA psychiatrists and
other physicians negligently reaffirmed that diagnosis, and that by letter dated
November 18, 2014, a KCVA psychiatrist stated an opinion that Royster had not met the
criteria for the diagnosis of Bipolar Disorder. On September 26, 2016, the 2015 action
was dismissed without prejudice, following the filing of a stipulation of dismissal without
prejudice on September 22, 2016. See Doc. No. 26 in 2015 action.
The current action was filed September 13, 2017. It is for the same alleged acts
or omissions as the 2015 action, and the 2017 Complaint is essentially identical to the
2015 Complaint. The United States asserts that, under 28 U.S.C. § 2401(b) of the
Federal Tort Claims Act (“FTCA”), the 2017 Complaint is untimely.

II.

Standard
A.

Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (citations and
quotations omitted). A claim is plausible on its face when, drawing all reasonable
inferences in the plaintiff’s favor, the plaintiff “pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. “While a complaint need not contain detailed factual allegations . . . a
plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than
labels and conclusions [and] . . . [f]actual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.
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Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal quotation marks and citations omitted); see
also Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)
(“Threadbare recitals of a cause of action, supported by mere conclusory statements,
do not suffice.”).
B.

Summary Judgment

Summary judgment is appropriate if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct.
2548, 2552-53 (1986). The facts and inferences are viewed in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88, 106 S. Ct. 1348, 1356 (1986). However, the non-movant must do more
than simply show that there is some metaphysical doubt as to the material facts, and
must come forward with specific facts showing that there is a genuine issue for trial.
Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356. Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).

III.

Analysis
Plaintiff does not dispute the facts as set out by defendant. Specifically, the

timeline of this matter is as follows:

2-19-15: Royster’s administrative claim
8-4-15: The DVA’s denial of the administrative claim
10-2-15: The filing of Royster’s 2015 Complaint
9-26-16: Dismissal without prejudice of the 2015 action
9-13-17: The filing of Royster’s 2017 Complaint

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As noted by defendant, the Federal Tort Claims Act 28 U.S.C. § 1346(b) and §§
2671-2680 (“FTCA”) includes a statute of limitation. That statute of limitation, 28 U.S.C.
§ 2401(b), 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.
Both elements of this statute must be met in order for the action to be timely. Haceesa
v. United States, 309 F.3d 722, 733 (10th Cir. 2002); Schuler v. United States, 628 F.2d
199, 201 (D.C. Cir. 1980); Seiss v. United States, 792 F. Supp.2d 729, 731 (D.N.J.
2011). Thus, even though it appears Royster presented his claim in writing to the DVA
in February 2015, within two years after accrual, Royster must also have brought suit in
court within six months after the notice of denial of the administrative claim. Although
plaintiff’s initial complaint, filed in October 2015, was timely under this statute, defendant
argues that the 2017 complaint has been filed out of time.
Defendant argues, in particular, that (1) the current action was filed more than 25
months after the denial of the administrative claim, well beyond the six-month limitations
period stated in 28 U.S.C. § 2401(b), arguing that the pendency of the 2015 action from
October 2015 through September 2016 did not toll the running of the FTCA statute of
limitations; (2) even if the statute of limitations was considered tolled from October 2015
through September 2016, the statute of limitations would still have long run by the time
that the 2017 action was filed; and (3) Missouri’s one-year savings statute does not
operate to save plaintiff’s claim, as it does not apply to cases where a federal statute of
limitations exists.

The Court finds the second and third of these arguments to be

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persuasive; even if the six-month statute of limitations was tolled throughout the
pendency of the 2015 suit, plaintiff’s lawsuit is still late.
It appears that plaintiff attempted to file this lawsuit within the time frame of the
Missouri one-year savings statute, which provides:
If any action shall have been commenced within the times respectively
prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a
nonsuit, or, after a verdict for him, the judgment be arrested, or, after a
judgment for him, the same be reversed on appeal or error, such plaintiff
may commence a new action from time to time, within one year after such
nonsuit suffered or such judgment arrested or reversed; and if the cause
of action survive or descend to his heirs, or survive to his executors or
administrators, they may, in like manner, commence a new action within
the time herein allowed to such plaintiff, or, if no executor or administrator
be qualified, then within one year after letters testamentary or of
administration shall have been granted to him.
R.S. Mo. 516.230. However, state savings statutes do not apply in FTCA actions. See
In re Franklin Savings Corp., 385 F.3d 1279, 1288 (10th Cir. 2004); Victor Foods, Inc. v.
Crossroads Economic Development of St. Charles County, Inc., 977 F.2d 1224, 1227
(8th Cir. 1992) (“[T]he Missouri savings statute is irrelevant because state tolling and
savings provisions do not apply when Congress has provided a statute of limitations for
a federal claim.”); Garfield v. J.C. Nichols Real Estate, 57 F.3d 662, 665–66 (8th Cir.
1995) (same). This Court, therefore, also finds that the Missouri savings statute should
not apply. Thus, even if the Court somehow allowed equitable tolling for the amount of
time this action was pending in 2015-16, by the time plaintiff re-filed the action in 2017,
plaintiff’s second suit was approximately eight months too late.
Plaintiff makes much of the fact that his previous suit was dismissed “without
prejudice,” and that courts prefer to dismiss cases on the merits rather than on
procedural grounds.

However, nothing cited by plaintiff alters the state of the law

regarding the statute of limitations. Plaintiff had six months from the date of mailing of

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notice of final denial of the claim in which to file his suit. The current suit was not filed
within this limitations period, whether one allows equitable tolling for the period of time
in which the prior suit was pending or not.

Defendant’s motion to dismiss or for

summary judgment must be granted.
IV.

Conclusion
Therefore, for the foregoing reasons, Defendant’s Motion to Dismiss for Failure to

State a Claim, or, in the Alternative, for Summary Judgment (Doc. No. 6) is GRANTED,
and this case is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

Date: January 18, 2018
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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