Peters v. Department of the Army

Filing 46

ORDER denying 38 Defendant's motion to dismiss. Signed on 1/26/16 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
MARCUS PETERS, by and through his
mother and next friend, GWEN PETERS,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

No. 15-CV-3017-S-DGK

ORDER DENYING MOTION TO DISMISS
Plaintiff Marcus Peters (“Peters”) is a child that was delivered with serious brain injuries.
Defendant (“the Government”) runs the hospital where he was born. His mother sued the
Government for negligence on his behalf.
Now before the Court is the Government’s Motion to Dismiss (Doc. 38), which argues
that Peters missed the limitations period to file this lawsuit.

Because that defense is not

established on the face of the Complaint, the motion is DENIED.
Background
The Complaint alleges as follows. When she was pregnant with him, Peters’s mother fell
ill and sought admission to one of the Government’s hospitals. The staff induced labor and
delivered Peters on July 26, 2010. He was immediately transferred to another hospital’s neonatal
intensive care unit, where he was assessed with serious injuries. However, the Government told
his mother that those injuries were normal. He alleges that he and his mother were not aware
that he “had an injury connected with his delivery” until December 11, 2010, when he was
diagnosed with hydrocephalus (Doc. 1 at ¶ 5).

His mother filed an administrative claim with the Government for his injuries on
November 6, 2012. She then sued the Government on her son’s behalf for one count of
negligence.
Discussion
Because Peters is suing the United States for negligence, his claim is governed by the
Federal Tort Claims Act, 28 U.S.C. §§ 2401–2416. Under that act, “[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. § 2401(b). A medical malpractice claim
accrues when the plaintiff becomes aware of his injury and its probable cause. United States v.
Kubrick, 444 U.S. 111, 122 (1979).
The Government alleges that by filing his claim more than two years after his birth,
Peters has missed the limitations period and so is “forever barred” from pursuing this tort claim.
Peters responds that he was not aware that Government personnel were the cause of his injuries
until December 2010, thus making this claim timely.
Each party supports its claim by attaching exhibits to its briefs. Peters accuses the
Government of “cherry-pick[ing] its facts.”

The Government enumerates “instance after

instance” when Peters should have been aware who caused his injuries, and argues about how
much weight the Court should give particular pieces of evidence, such as a letter Peters’s mother
wrote on U.S. Army letterhead. This raises the question: which of these materials may the Court
view to decide this fact-bound motion, and how should it resolve disputes among those
materials?
The Government predicates its motion on two alternate grounds. First, it argues that the
Complaint is subject to dismissal for lack of subject-matter jurisdiction under Federal Rule of

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Civil Procedure 12(b)(1). Under that Rule, a court may in certain circumstances consider matters
outside the pleadings, such as testimony and affidavits. The Branson Label, Inc. v. City of
Branson, 793 F.3d 910, 914–15 (8th Cir. 2015). Second, the Government urges dismissal under
Rule 12(b)(6) because even if it committed negligence, Peters’s claim is barred as untimely, so
the Complaint does not state a claim upon which relief can be granted. Unlike with Rule
12(b)(1), a Rule 12(b)(6) court generally restricts its inquiry to the complaint and takes as true all
of its factual allegations. Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (en banc).
Determining the governing Rule will thus inform the Court how to view the parties’ new
exhibits.
The key to picking a Rule lies in whether the § 2401(b) deadline buttresses federal
jurisdiction or composes an element of a party’s case. See T.L. ex rel. Ingram v. United States,
443 F.3d 956, 960 (8th Cir. 2006) (using this binary), abrogated in other part by United States v.
Wong, 135 S. Ct. 1625 (2015). Because “§ 2401(b)’s test speaks only to a claim’s timeliness, not
to a court’s power[,] . . . Section 2401(b) is not a jurisdictional requirement.” Wong, 135 S. Ct.
at 1632, 1633. Thus, it functions more as an affirmative defense, which the Government must
plead and prove. Schmidt v. United States, 933 F.2d 639, 640 (8th Cir. 1991).
“Although affirmative defenses may be raised on a motion to dismiss, the proper method
for raising a defense of limitation is a motion under Rule 12(b)(6), not a motion under Rule
12(b)(1).”

Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982).

Therefore, the Government’s motion is appropriate under only Rule 12(b)(6). See id.; Wong, 135
S. Ct. at 1633.
With this guidance, the Court can now properly view the facts. On a Rule 12(b)(6)
motion, the court takes all facts in the complaint as true and draws all reasonable inferences in

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favor of the non-moving party.

Zink, 783 F.3d at 1098. “[T]he court generally must ignore

materials outside the pleadings.” Smithrud v. City of St. Paul, 746 F.3d 391, 395 (8th Cir. 2014).
The court first assesses whether the complaint pleads sufficient facts to state a claim to
relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Legal conclusions in the complaint merit no
deference. Id. The court then determines whether the complaint states a claim for relief that is
plausible. Id. A claim is plausible when “the court may draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “[T]he possible existence of a statute of
limitations defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless the complaint
itself establishes the defense.” Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir. 2008).
Under this light, the motion is easily denied. The Court ignores the exhibits attached to
the parties’ briefs, and looks only at the Complaint. See Smithrud, 746 F.3d at 395. The
Complaint specifically alleges, “On December 11, 2010, Marcus was diagnosed with
hydrocephal[u]s which was the first indication to Gwen Peters that Marcus had an injury
connected with his delivery.” (Doc. 1 at ¶ 5). Until that day, Peters’s mother believed that her
son’s injuries had occurred naturally because the Government had so insisted. The Complaint
contains no facts that suggest Peters should have known about the extent of the Government’s
alleged fault before the hydrocephalus diagnosis. On this basis, Peters’s claim accrued in
December 2010, not in July 2010 when he was born. See Kubrick, 444 U.S. at 122. Peters
having filed an administrative claim in November 2012, his negligence lawsuit is not barred by
the two-year time limitation in the Federal Tort Claims Act. See 28 U.S.C. § 2401(b).
Because the Complaint itself does not show that Peters’s claim is untimely, the
Government is not entitled to dismissal on the basis of that affirmative defense. See Jessie, 516
F.3d at 713 n.2. The Court must therefore deny its motion to dismiss.

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The Court realizes that instead of ignoring the parties’ exhibits, it could instead consider
them and thereby convert the Government’s motion to one for summary judgment. See Fed. R.
Civ. P. 12(d).

Because discovery is open for several more months, the Court sees no rush to

adjudicate this important and fact-sensitive issue. Therefore, the Court confines its inquiry to the
Complaint and decides this motion on that document alone.
Conclusion
For the foregoing reasons, the Government’s Motion to Dismiss (Doc. 39) is DENIED.
IT IS SO ORDERED.
Date: January 26, 2016

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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