WOOD v. USA
Filing
11
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 2/23/2017; that the United States' motion to dismiss (Doc. 5 ) is GRANTED and the complaint (Doc. 1 ) is DISMISSED WITH PREJUDICE. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ETHEL THOMAS WOOD, as Executor
of the Estate of JAMES WAVERLY
WOOD, Deceased,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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1:16CV1033
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff Ethel Wood seeks to reprise her lawsuit on behalf
of her deceased husband against the Department of Veterans Affairs
(“VA”) pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346,
2671 et seq. (“FTCA”).
(Doc. 1 at 7-9.)
Wood’s
which
prior
lawsuit,
alleged
The court dismissed
general
negligence
in
connection with her husband’s heart surgery, on the grounds that
it could only proceed, if at all, as a medical malpractice claim.
See Wood v. United States (hereinafter Wood I), No. 1:14CV1004,
2016 WL 3962618 (M.D.N.C. July 21, 2016).
Wood’s present action
alleges medical malpractice, but the United States moves to dismiss
it on the ground that it is facially barred by the statute of
limitations.
(Doc. 5.)
For the reasons set forth below, the
United States’ motion will be granted, and the complaint will be
dismissed with prejudice.
I.
BACKGROUND
Wood’s husband died on August 23, 2012, following heart
surgery at the VA on August 9, 2012.
(Doc. 1 at 1, ¶ 2.)
On
December 12, 2013, Wood submitted a Claim for Damage, Injury, or
Death, which the VA denied on June 6, 2014.
(Id. at 2, ¶ 7.)
On
December 1, 2014, she brought FTCA claims in this court for
premises liability and for medical malpractice.
Doc. 1 at 5–6, ¶¶ 33-38.)
(No. 1:14cv1004
Over one year later, on December 11,
2015, she voluntarily amended her complaint to replace her medical
malpractice claim with a claim for ordinary negligence because she
asserted that the allegedly deficient conduct (transferring Wood’s
husband from the operating table to the transfer bed) “involved
predominantly
physical
and
manual
conduct,
which
constitutes
ordinary negligence, and not the rendition of professional medical
services, which constitutes medical malpractice.”
(No. 1:14cv1004
Doc. 23 at 2.)
In due course, the United States moved for summary judgment
as to Wood’s premises liability and negligence claims, and on July
21, 2016, this court granted the motion.
45.)
(No. 1:14cv1004 Doc.
Noting that “the FTCA claim can only proceed, if at all, as
a medical malpractice claim,” which Wood had earlier pleaded but
voluntarily
dismissed
and
which
would
require
an
expert
certification under North Carolina Rule of Civil Procedure 9(j),
the court dismissed the negligence claim without prejudice “in the
2
event it [was] susceptible to being refiled as a properly pleaded
medical malpractice claim.”
added sua
sponte:
2016 WL 3962618, at *8.
“Pursuant
to
North
Carolina
Rule
The court
of
Civil
Procedure 41(b), a new action in compliance with North Carolina
Rule of Civil Procedure 9(j) based on the medical malpractice claim
may be commenced within one year or less of this dismissal.”
Id.
On August 8, 2016, Wood filed the present action, restating
her medical malpractice claim as to the VA’s care of her husband.
The United States now moves to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), arguing that the claim
is facially barred by the FTCA’s six-month statute of limitations.
(Doc. 15.)
Civil
Wood, though conceding that North Carolina Rule of
Procedure
41(b)
is
inapplicable
to
her
FTCA
claim,
nevertheless argues that the court’s statement as to Rule 41(b)’s
saving provision saves her from the application of the FTCA’s
statute of limitations.
The motion is fully briefed and is ready for decision.
II.
ANALYSIS
A.
Procedural Posture and Law of the Case
At the outset, Wood argues that the United States cannot
proceed
by
way
of
a
motion
to
dismiss
because
it
seeks
to
collaterally attack the judgment in Wood I, which she says gave
her leave to refile her claim.
the
case”
doctrine,
the
She argues that under the “law of
United
3
States
is
bound
by
that
determination, which she characterizes as “borrowing and applying”
Rule 41(b)’s savings provision.
(Doc. 8 at 3, 5-7.)
Had the
United States been concerned about the court’s statement as to
North Carolina Rule of Civil Procedure 41(b), she concludes, it
should have appealed Wood I or moved to amend the judgment under
Federal Rule of Civil Procedure 59(e) and has now forfeited any
objection to it.
(Id. at 12-13.)
But Wood concedes that North Carolina Rule of Civil Procedure
41(b) “would not normally apply” to toll the statute of limitations
for an FTCA claim.
(Doc. 8 at 3-4.)
Consequently, had she sought
to avoid the application of the federal statute of limitations, it
was incumbent upon her to seek leave to amend her complaint before
entry of judgment, to seek to amend the judgment pursuant to Rule
59(e), or to appeal the judgment.
She never asked for leave to
amend, but she did file her current complaint eighteen days after
Wood I’s dismissal.
At that point she still had time to seek an
amended judgment or to take an appeal.
See Fed. R. Civ. P. 59(e)
(providing twenty-eight days in which to move to alter or amend a
judgment); Fed. R. App. P. 4(a)(1)(B) (providing sixty days in
which to appeal a judgment when one of the parties is the United
States).
She did neither.
At no time has she claimed that she
forewent any option because she relied on the court’s citation to
North Carolina Rule of Civil Procedure 41(b).
Wood argues nevertheless that the law-of-the-case doctrine
4
precludes the United States from asserting a statute of limitations
defense.
decide
This is incorrect.
the
issue
the
United
Most importantly, Wood I did not
States
now
raises:
whether
the
applicable statute of limitations for the FTCA bars her medical
malpractice (or negligence) claim.
The only timing issue raised
in Wood I was whether Wood had administratively presented her
claims, and the court found that she had.
4.
2016 WL 3962618 at *3-
Furthermore, courts have consistently held that the doctrine
applies only when an issue is actually litigated by the parties.
See Dorocon, Inc. v. Burke, No. CIV.A. 02-2556, 2005 WL 3454338,
at *13 (D.D.C. Dec. 16, 2005) (“[T]he ‘law-of-the-case doctrine’
requires that an issue is (1) litigated and then (2) decided.”);
id. (holding the doctrine inapplicable in part because the parties
did not litigate the relevant issue); see also United States v.
U.S. Smelting Ref. & Min. Co., 339 U.S. 186, 198 (1950) (“The rule
of the law of the case is a rule of practice, based upon sound
policy that when an issue is once litigated and decided, that
should be the end of the matter.” (emphasis added)).
In Wood I,
neither party briefed, nor did the court address, the statute of
limitations question. 1
1
Moreover, the law-of-the-case doctrine applies only to decisions in
the same case. Arizona v. California, 460 U.S. 605, 618 (1983), decision
supplemented, 466 U.S. 144 (1984); see also TFWS, Inc. v. Franchot, 572
F.3d 186, 191 (4th Cir. 2009) (“The law of the case doctrine ‘posits
that when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same
case.’” (quoting United States v. Aramony, 166 F.3d 655, 661 (4th Cir.
5
B.
Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) is a proper vehicle
for the
United
States’
challenge.
A
statute
of
limitations
“constitutes an affirmative defense and may be raised by motion
pursuant to [Rule 12(b)(6)] if the time bar is apparent on the
face of the complaint.”
Dean v. Pilgrim’s Pride Corp., 395 F.3d
471, 474 (4th Cir. 2005) (citations omitted); see also Semenova v.
Md. Transit Admin., __ F.3d __, No. 15-2125, 2017 WL 89019, at *2
(4th Cir. Jan. 10, 2017) (same (citing Dean, 395 F.3d at 474)).
The complaint alleges that the VA denied Wood’s claim on June 6,
2014.
(Doc. 1 at 2, ¶ 7.)
(id. at 10).
The complaint is dated August 8, 2016
The United States’ motion challenges Wood’s claim
solely on the ground that the statute of limitations bars it, which
tests only the legal sufficiency of Wood’s claim based on the facts
1999)) (emphasis added)). Unless the court were to construe its decision
in Wood I as granting leave to amend Wood’s already-amended complaint
(No. 1:14cv1004 Doc. 27) – a remedy she did not request, neither party
briefed, and to which neither the order nor judgment in Wood I refers –
it is unclear whether this is the same case.
Even if it is, however, the law-of-the-case doctrine always allows
a court to revisit decisions that are clearly erroneous.
See
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)
(“[T]he law-of-the-case doctrine ‘merely expresses the practice of
courts generally to refuse to reopen what has been decided, not a limit
to their power.’” (quoting Messinger v. Anderson, 225 U.S. 436, 444
(1912))); Arizona, 460 U.S. at 619 n.8 (“Under law of the case doctrine,
as now most commonly understood, it is not improper for a court to depart
from a prior holding if convinced that it is clearly erroneous and would
work a manifest injustice.” (citing White v. Murtha, 377 F.2d 428, 431–
32 (5th Cir. 1967))). For the reasons noted infra, Wood concedes that
North Carolina Rule of Civil Procedure 41(b) has no application to the
FTCA statute of limitations.
6
alleged.
See Dickinson v. Univ. of N.C., 91 F. Supp. 3d 755, 763
(M.D.N.C. 2015) (“To succeed on a statute-of-limitations defense
at this stage, all facts necessary to show the time bar must
clearly appear ‘on the face of the complaint.’” (quoting Goodman
v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007))).
The purpose of a Rule 12(b)(6) motion is to “test[] the
sufficiency
of
a
complaint”
and
not
to
“resolve
contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992).
In considering a Rule 12(b)(6) motion, a
court “must accept as true all of the factual allegations contained
in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam),
and
all
reasonable
inferences
must
be
drawn
in
the
plaintiff’s favor, Ibarra v. United States, 120 F.3d 472, 474 (4th
Cir. 1997).
To be facially plausible, a claim must “plead[]
factual content that allows the court to draw the reasonable
inference that the defendant is liable” and must demonstrate “more
than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556 (2007)).
including
all
reasonable
inferences
While “the complaint,
therefrom,
[is]
liberally
construed in the plaintiff’s favor,” Estate of Williams-Moore v.
Alliance One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646
(M.D.N.C. 2004) (citing McNair v. Lend Lease Trucks, Inc., 95 F.3d
7
325, 327 (4th Cir. 1996)), this “does not mean that the court can
ignore a clear failure in the pleadings to allege any facts [that]
set forth a claim.”
Id. at 646.
Mere legal conclusions are not
accepted as true, and “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”
Iqbal, 556 U.S. at 678.
1.
Wood I
This court’s Order in Wood I sua sponte invoked North Carolina
Rule of Civil Procedure 41(b). 2
Under that rule, a court that
dismisses a claim without prejudice “may . . . specify in its order
that a new action based on the same claim may be commenced within
one year or less after such dismissal.”
This savings provision
applies only when the dismissing court affirmatively states that
the claimant is entitled to refile her claim within a particular
time.
Williams v. Cathy, No. CIV. 3:08CV65, 2008 WL 2277544, at
*3 (W.D.N.C. June 2, 2008) (citing Harter v. Vernon, 139 N.C. App.
85, 89, 532 S.E.2d 836, 839 (2000)).
It is well-established that when sitting in diversity over a
North Carolina State-law claim, a federal court may apply Rule
2
The court did so unaware of whether it would affect the relevant statute
of limitations but out of an abundance of caution, aware that a plaintiff
who failed to invoke Rule 41(b) could not later seek to take advantage
of it. Williams v. Cathy, No. CIV. 3:08CV65, 2008 WL 2277544, at *3
(W.D.N.C. June 2, 2008) (holding that the plaintiff bears of the burden
of invoking Rule 41(b) (citing Clark v. Velsicol Chem. Corp., 110 N.C.
App. 803, 809, 431 S.E.2d 227, 230 (1993), aff’d, 336 N.C. 599, 444
S.E.2d 223 (1994))). The intent of the court was to grant Wood whatever
rights, if any, Rule 41(b) bestowed on her.
8
41(b).
See, e.g., Topshelf Mgmt., Inc. v. Campbell-Ewald Co., No.
1:15CV939,
2016
WL
4491650,
at
*2
Williams, 2008 WL 2277544, at *3.
(M.D.N.C.
Aug.
26,
2016);
However, it equally well-
established – and Wood concedes (Doc. 8 at 3-4) - that when a
federal court exercises jurisdiction based on a federal statute
that contains its own statute of limitations, such as the FTCA, a
State’s savings provisions will not apply.
See Miller v. United
States, 932 F.2d 301, 303 (4th Cir. 1991) (holding that “federal
law defines the limitations period” for FTCA claims); U.S. ex rel.
Martin Marietta Materials, Inc. v. DTC Engineers & Constructors,
LLC, No. 5:11-CV-111-F, 2012 WL 2311491, at *4 (E.D.N.C. June 18,
2012)
(“[C]ases
brought
before
the
district
court
in
which
jurisdiction is not based on diversity of citizenship need not
consider the applicability of a savings provision . . . .” (citing
inter alia In re Matthews, 395 F.3d 477, 480 (4th Cir. 2005))).
This is true even though, as the parties agree, North Carolina’s
Rule of Civil Procedure 9(j) does apply, as part of North Carolina
substantive law, to her FTCA claim for medical malpractice.
See
Boula v. United States, No. 1:11CV366, 2013 WL 5962935, at *2
(M.D.N.C. Nov. 7, 2013) (finding that Rule 9(j)’s certification
requirement applies to a medical malpractice action under the
FTCA).
Therefore, as Wood now readily concedes, citation to Rule
41(b) in Wood I had no legal effect in extending her federal
statute of limitation as to any FTCA claim.
9
Wood now argues, however, that the court must have intended
to “borrow” Rule 41(b)’s savings provision to allow her one year
to refile her case.
what this means.
(See, e.g., Doc. 8 at 11.)
It is not clear
Either Rule 41(b) applies or it does not.
In
any event, it was not the court’s intent to “borrow” the provision.
Indeed, Wood never requested leave to amend her complaint, and no
party briefed the application of Rule 41(b).
The court, sua
sponte, merely offered to make a Rule 41(b) finding if it applied.
As is now apparent, and as Wood concedes, it does not, and it does
not therefore help Wood as to the federal statute of limitations
applicable to her claim.
The only mechanisms by which a court may extend the FTCA’s
statute of limitations are equitable tolling and Federal Rule of
Civil Procedure 15.
Wood never sought, nor did Wood I mention,
either of these.
The FTCA’s statute of limitations is a condition of Congress’
waiver of sovereign immunity, and as such, the court must toll it
only “sparingly.”
89, 96 (1990).
Irwin v. Dep’t of Veterans Affairs, 498 U.S.
“Plaintiffs are entitled to equitable tolling only
if they show that they have pursued their rights diligently and
extraordinary circumstances prevented them from filing on time.”
Raplee v. United States, 842 F.3d 328, 333 (4th Cir. 2016) (citing
Holland v. Florida, 560 U.S. 631, 649 (2010)).
The Fourth Circuit
has explained that “equitable tolling is reserved for ‘those rare
10
instances where — due to circumstances external to the party’s own
conduct — it would be unconscionable to enforce the limitation
period against the party and gross injustice would result.’”
Id.
(quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)).
There were no such extraordinary circumstances here.
Wood
abandoned her claim for medical malpractice in Wood I after a year
of litigation in favor of a claim for ordinary negligence.
No
party briefed the issue of equitable tolling, and Wood vigorously
pursued her ordinary negligence claim throughout the lawsuit,
never seeking leave to amend her complaint to return to or add the
medical
malpractice
claim.
As
such,
her
claim
met
neither
condition of equitable tolling: she did not pursue her newly
asserted rights diligently – indeed, she chose to give up the legal
theory she now attempts to resurrect; and the circumstance that
prevented her timely refiling was not extraordinary but rather
deliberate and self-imposed, based on what appears to have been a
calculated strategic decision by able counsel.
See Nickelson v.
United States, No. CV14-3654 (AJW), 2016 WL 6495358, at *3 (C.D.
Calif. Nov. 2, 2016) (rejecting equitable tolling in FTCA action
for lawyer’s “garden variety” error in not obtaining certification
from medical provider for complaint required under State law).
Wood cites three cases for the proposition that in Wood I the
court had the power to grant her leave to refile her claim outside
the FTCA’s statute of limitations.
11
(See Doc. 8 at 8-10 (citing
Baxter v. United States, No. 115CV00633JCCIDD, 2016 WL 3618363
(E.D. Va. July 6, 2016); Bush v. United States, No. 1:14-CV-1057,
2014 WL 6836955, at *1 (M.D. Pa. Nov. 12, 2014), report and
recommendation adopted as modified, No. 1:14-CV-1057, 2014 WL
6836994 (M.D. Pa. Dec. 3, 2014); McRae v. Soc. Sec. Admin., No.
C06-01999MJJ, 2007 WL 687484 (N.D. Cal. Mar. 5, 2007)).)
As the
United States notes (Doc. 9 at 3), the courts in those cases
allowed claimants to file amended complaints in existing cases
before entry of final judgment.
(See Doc. 9-1 at 7 (showing an
amended complaint filed following the order in Baxter); Doc. 9-8
at 4-5 (consolidating the order granting leave to refile in Bush
with the case “created” by the plaintiff’s amended complaint);
Doc. 9-2 at 2 (construing the order in McRae as “grant[ing] [the
plaintiff] leave to amend certain of her claims” and dismissing
the case for the plaintiff’s failure to do so).)
In other words,
none of those courts allowed a plaintiff leave to file a new action
in a new case; they simply allowed the plaintiffs to file amended
complaints that would relate back to the original filing and thus
state otherwise-time-barred claims. 3
See Fed. R. Civ. P. 15(c);
cf. Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir. 1983) (applying
3
It is also notable that Wood construes the order in Wood I to give her
a much longer period in which to refile her claim than the plaintiffs
in Baxter, Bush, and McRae were given. (See Doc. 8 at 11 (asserting
that “this Court . . . permitted [Wood] a year” to refile her action
(emphasis added)).) See Baxter, 2016 WL 3618363, at *1 (providing the
plaintiff fourteen days to refile); Bush, 2014 WL 6836994, at *1 (twentyone days); McRae, 2007 WL 687484, at *6 (twenty days).
12
Rule 15(c) to bring an amended complaint within Title VII’s statute
of limitations), aff’d, 468 U.S. 42 (1984).
Rule 15 authorized those courts to amend existing actions so
that new claims would relate back for purposes of the FTCA’s
statute of limitations.
Here, a final judgment was issued in Wood
I, and Wood’s new claim cannot be construed as an amended complaint
to that earlier action. Consequently, the complaint in the present
case does not relate back to her first complaint because it was
not an amended pleading but rather a separate filing.
O’Donnell
v. Vencor, Inc., 466 F.3d 1104, 1111 (9th Cir. 2009) (noting that
the plaintiff's “second complaint does not ‘relate back’ to her
first
complaint
‘amendment’
to
because
her
her
separate
complaint,
but
complaint
rather
was
a
not
an
separate
filing”)(citing Fed. R. Civ. P. 15(c)(2)).
Wood argues that the court may dismiss an FTCA claim without
prejudice and give the plaintiff more time to file a claim “by
simply dismissing without prejudice and providing a stated amount
of time by which to file an entirely new action.”
(Doc. 8 at 10.)
But the case Wood cites in support of that proposition establishes
only that “a district court ordinarily has discretion to decide
whether to dismiss an action, including for failure to state a
claim, with or without prejudice.”
McLean v. United States, 566
F.3d 391, 407 (4th Cir. 2009) (citations omitted).
In any event, it was neither the intent nor the effect of
13
Wood I to grant Wood general leave to file a new case or to amend
her already-amended complaint.
As a result, the dismissal of Wood
I without prejudice left Wood in the same position as if the action
had never been filed, and any tolling effect the suit had on a
statute of limitations was “wiped out.”
Elmore v. Henderson, 227
F.3d 1009, 1011 (7th Cir. 2000).
2.
FTCA Statute of Limitations
Having concluded that the Wood I judgment did not authorize
Wood to amend or refile her medical malpractice claim, the court
turns to the question of whether the claim is barred by the FTCA’s
statute of limitations.
The FTCA provides that a tort claim against the United States
“shall be forever barred . . . unless action is begun within six
months after . . . the denial of the claim by the agency.”
U.S.C. § 2401(b).
6, 2014.
28
The VA denied Wood’s claim by letter dated June
(Doc. 1 at 2, ¶ 7.)
Wood brought the present action
over two years later, on August 8, 2016.
(Id. at 10.)
Her claim
is therefore barred unless it is eligible for equitable tolling.
But, as noted above, Wood I did not apply the doctrine of equitable
tolling, and for the reasons noted, Wood has not demonstrated that
she is entitled to it in the present case.
In sum, the circumstance that led to Wood’s loss of the
medical
malpractice
decision.
claim
was
her
own
deliberate
litigation
Facing a threatened dismissal in Wood I, she did not
14
ask for leave to amend, and upon the dismissal in Wood I, she did
not request amendment of the judgment to allow leave to amend even
though she acknowledges that North Carolina’s Rule 41(b) does not
save her claim. Consequently, the United States’ motion to dismiss
will be granted.
III. CONCLUSION
For the reasons stated, the complaint is barred by the FTCA’s
statute of limitations, 28 U.S.C. § 2401(b).
IT IS THEREFORE ORDERED that the United States’ motion to
dismiss (Doc. 5) is GRANTED and the complaint (Doc. 1) is DISMISSED
WITH PREJUDICE.
/s/ Thomas D. Schroeder
United States District Judge
February 23, 2017
15
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