Moore et al vs USA

Filing 164

ORDERED that United States' motion to strike class action allegations (# 10 ) is reinstated and GRANTED. FURTHER ORDERED that Ps' motion for class certification (# 68 ) is DENIED. FURTHER ORDERED that Ps' motion for leave to amend the complaint to name new plaintiffs or, in the alternative, motion to intervene (# 138 ) is DENIED. Signed by Judge Lloyd D. George on 6/9/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BILL ADAMSON, et al.,
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3:08-cv-0621-LDG-RAM
Plaintiffs,

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v.
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UNITED STATES OF AMERICA,
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Defendant.
______________________________________

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LARRY J. MOORE, et al.,

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Plaintiffs,

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v.

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UNITED STATES OF AMERICA,

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3:09-cv-0167-LDG-RAM

Defendant.
______________________________________

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BILL ADAMSON, et al.,
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Plaintiffs,
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v.
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UNITED STATES OF AMERICA,
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Defendant.
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3:09-cv-0715-LDG-RAM

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On March 24, 2011, the court conducted a hearing on the following matters:
Adamson v. United States (Adamson I), 3:08-cv-621-LDG-RAM
United States’ motion to strike class allegations (#26) (denied without prejudice to
subsequent reinstatement)

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Moore v. United States, 3:09-cv-167-LDG-RAM
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United States’ motion to strike class action allegations (#10) (denied without
prejudice to reconsideration in ruling on the motion for class certification)

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Plaintiffs’ motion for class certification (#68)

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Adamson v. United States (Adamson II), 3:09-cv-715-LDG-RAM
United States’ motion to strike class action allegations (#22) (denied for case
management purposes without prejudice to reinstatement)

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The parties in the Adamson cases have stipulated to the granting of the United States’
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motions to strike. During the hearing, the court advised the parties in Moore that it was
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preliminarily inclined to grant the United States’ motion to strike and deny plaintiffs’ motion for
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class certification. Based on that position, the Moore plaintiffs requested leave to file a motion for
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leave to amend the complaint to add four previously unnamed plaintiffs, Jennifer Tapia, Daniel
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Tapia, James Pringle and Richard Penn (the “unnamed plaintiffs”).
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To prosecute a suit as a class action, plaintiffs must establish that the court has jurisdiction
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over the claims upon which the class action is premised, and that both the four prerequisites
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prescribed in Fed. R. Civ. P. 23(a) and the standards for at least one of the three types of class
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action enumerated in Fed. R. Civ. P. 23(b) are satisfied. In focusing on the jurisdictional element,
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the court determines that plaintiffs’ proposed class would include the unnamed plaintiffs and
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others similarly situated who have not met the sovereign immunity waiver requirements of 28
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U.S.C. § 2675(a) and accompanying regulations. That law requires that a claim for damages to
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property must be presented to the administrative agency by the owner of the property or by the
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owner’s duly authorized agent or legal representative. While plaintiffs’ motion for class
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certification and motion to amend the complaint seek to salvage the claims of the unnamed
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plaintiffs and others who failed to comply with § 2675, the claim requirement of § 2675 is

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jurisdictional in nature and may not be waived. Blain v. United States, 552 F.2d 289, 291 (9th Cir.

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1975). Plaintiffs have shown neither that the members of the proposed class complied with the

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presentment requirement, nor that the members of the proposed class authorized plaintiffs to

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present their claims to the agency. Plaintiffs, therefore, have failed to establish that a class claim

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was properly submitted on behalf of the proposed class, and class certification will be denied.

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In a further effort to save the unnamed plaintiffs’ claims, plaintiffs have filed a motion for

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leave to amend the complaint to name new plaintiffs or, in the alternative, a motion to intervene by

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the unnamed plaintiffs. The United States denied the unnamed plaintiffs’ administrative claims on

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May 15, 2009, and the unnamed plaintiffs did not file suit within the six-month limitation period

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after the denial. See 28 U.S.C. § 2401(b). Plaintiffs argue that the pendency of the class

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certification effectively tolls the running of the six-month period in which the unnamed plaintiffs

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may become parties in the action–thus avoiding their preclusion for not having filed an action

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within the uninterrupted limitations period.

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Generally, equitable doctrines of tolling may excuse a claimant’s tardiness. However, “[i]f

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a statute of limitations aims not so much to protect a defendant’s case-specific interest in

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timeliness as to achieve a broader system-related goal, such as facilitating the administration of

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claims, limiting the scope of a governmental waiver of sovereign immunity, or promoting judicial

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efficiency, a court’s flexibility in using equitable doctrines to extend deadlines is limited.” Marley

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v. United States, 567 F.3d 1030, 1035 (9th Cir. 2009) (citations internal marks omitted). Such

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statutes of limitations are referred to as “jurisdictional.” Id. The Ninth Circuit has held that the

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requirements of § 2401(b) are “jurisdictional” in the sense that “[t]he FTCA includes a detailed

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administrative process for handling tort claims against agencies. The statutory filing deadline is a

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key part of that process and plainly facilitates the administration of claims.” Id. at 1036.

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Therefore, in a case that does not meet the deadlines of § 2401(b), the court does not have

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jurisdiction and cannot apply the doctrines of equitable tolling that may otherwise allow the case

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to proceed.

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Plaintiffs attempt to distinguish Marley, upon which the United States relies, on the ground

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that the plaintiff in that case did not rely upon a pending class action to toll the statute of

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limitations, but rather re-filed an individual FTCA case after the limitations period had run. While

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that is a distinction, plaintiffs do not explain, and the court does not perceive, why the separate

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contexts would make a difference to the characterization and application of § 2401(b). Indeed, the

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case by which plaintiffs urge the court be guided, Crown, Cork & Seal Co. v. Parker, 462 U.S. 345

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(1983), is a Title VII case, and does not even address FTCA tolling. In any event, post-Parker

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cases have distinguished FTCA and Title VII limitations requirements on the ground that the

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administrative agency in FTCA cases is given broad authority to settle cases, where the EEOC has

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only authority to conciliate, not settle claims. See Arctic Slope Native Assoc. v. Sebelius, 583

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F.3d 785, 795 (Fed. Cir. 2009).

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Finally, given the acknowledgment by plaintiffs that their intent in filing a class action was

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to save the claims of the unnamed plaintiffs and similarly situated individuals, the court finds that

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the unnamed plaintiffs are not entitled to the equitable tolling principles articulated in American

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Pipe & Const. Co. v. Utah, 441 U.S. 538 (1976). As American Pipe’s concurring opinion

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cautions, class actions should not be framed by counsel in an effort to take advantage of equitable

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tolling principles “to attract and save members of the purported class who have slept on their

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rights.” Id. at 561 (J. Blackmun, concurring). Accordingly, based on futility, the court will deny

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plaintiffs’ motion for leave to amend to name new plaintiffs or, in the alternative, motion to

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intervene.

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THE COURT HEREBY ORDERS that United States’ motion to strike class action
allegations (#10) is reinstated and GRANTED.

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THE COURT FURTHER ORDERS that plaintiffs’ motion for class certification (#68) is
DENIED.
THE COURT FURTHER ORDERS that plaintiffs’ motion for leave to amend the
complaint to name new plaintiffs or, in the alternative, motion to intervene (#138) is DENIED.

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Dated this ____ day of June, 2011.

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________________________
Lloyd D. George
United States District Judge

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