Fonseca v. United States of America et al

Filing 14

Memorandum Opinion and Order granting 13 Motion to dismiss case filed by United States of America. Judge Christopher A. Boyko on 10/29/2015. (R,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CARLOS FONSECA.

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Plaintiff,
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Vs.
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UNITED STATES OF AMERICA, et al., )
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Defendants.
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CASE NO.1:15CV159
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendant United States of America’s
Motion to Dismiss (ECF # 13). Plaintiff did not file a response. For the following
reasons, the Court grants Defendant’s Motion.
This case is a refiling of a Complaint that was dismissed previously by the
Court. Plaintiff filed a Complaint under the Federal Tort Claims Act, 28 U.S.C. §§
2671-2680, alleging medical malpractice by the Department of Veterans Affairs.
(See Fonseca v. United States, No. 1:13-CV-01710 (N.D. Ohio filed Aug. 7, 2013)).
However, Plaintiff did not include an Affidavit of Merit with the Complaint as required
by Ohio R. Civ. P. 10(D)(2). Accordingly, the United States moved to dismiss the
case. After full briefing by the parties, the Court granted the United States’ Motion to
Dismiss, in part, on December 23, 2013, and ordered the Plaintiff to file an Affidavit of
Merit within thirty days of the Court’s Order. The Court informed Plaintiff that failure
to file the Affidavit of Merit would result in dismissal. Plaintiff never filed an Affidavit

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of Merit, and, as a result, the Court dismissed his case without prejudice on January
24, 2014.
On January 26, 2015, Plaintiff re-filed his Complaint against the United States.
This Complaint is identical to the previous Complaint dismissed by the Court. Again,
Plaintiff failed to attach an Affidavit of Merit as required by Rule 10(D)(2).
STANDARD OF REVIEW
In deciding a motion to dismiss under Fed.R.Civ.P.12(b)(6), the court must
accept as true all of the factual allegations contained in the complaint. Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007). The court need not, however, accept
conclusions of law as true:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain
a “short and plain statement of the claim showing that the pleader is
entitled to relief.” As the Court held in [Bell Atlantic v.] Twombly, 550
U.S. 544, 127 S. Ct. 1955 [(2007)], the pleading standard Rule 8
announces does not require “detailed factual allegations,” but it
demands more than an unadorned, the-Defendant-unlawfully-harmedme accusation. Id. at 555... A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of
action will not do.” Id. at 555. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of “further factual enhancement.” Id. at
557.
To survive a 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.” Id. at 570. A claim has facial plausibility when the Plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
Defendant is liable for the misconduct alleged. Id. at 556. The plausibility
standard is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a Defendant has acted unlawfully. Ibid. Where a
complaint pleads facts that are “merely consistent with” a Defendant’s liability,
it “stops short of the line between possibility and plausibility of ‘entitlement to
relief.’” Id. at 557.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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According to the Sixth Circuit, the standard described in Twombly and Iqbal
“obliges a pleader to amplify a claim with some factual allegations in those contexts
where such amplification is needed to render the claim plausible.” Weisbarth v.
Geauga Park Dist., 499 F.3d 538, 541 (6th Cir.2007) (quoting Iqbal v. Hasty, 490
F.3d 143, 157-58 (2nd Cir. 2007)). That is, “Iqbal interpreted Twombly to require
more concrete allegations only in those instances in which the complaint, on its face,
does not otherwise set forth a plausible claim for relief.” Weisbarth, 499 F.3d at 542.
A complaint should be dismissed when it fails to allege “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
ANALYSIS
Once again, Plaintiff has failed to file an Affidavit of Merit as required by Ohio
R. Civ. P. 10(D)(2).
Ohio R. Civ. P. 10(D)(2)(a) provides, in relevant part:
Except as provided in division (D)(2)(b) of this rule, a complaint that contains a
medical claim, dental claim, optometric claim, or chiropractic claim,…shall
include one or more affidavits of merit relative to each defendant named in the
complaint for whom expert testimony is necessary to establish liability.
Affidavits of merit shall be provided by an expert witness pursuant to Rules
601(D) and 702 of the Ohio Rules of Evidence.
Ohio R. Civ. P. 10(D)(2)(a).
This Court held previously that Rule 10(D)(2) is a substantive requirement for
purposes of FTCA medical malpractice claims and dismissed Plaintiff’s first
Complaint. However, even if Plaintiff could provide an Affidavit of Merit, his
Complaint is still subject to dismissal because it was filed beyond the statute of
limitations set forth in the FTCA. Specifically, a plaintiff asserting a claim under the
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FTCA must follow an administrative claims process and adhere to the statute of
limitations under 28 U.S.C. § 2401(b), which 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.
28 U.S.C. § 2401(b).
In the instant case, Plaintiff’s Complaint is barred pursuant to 28 U.S.C. §
2401(b) because it was filed beyond the six-month statute of limitations under the
FTCA. A final decision was rendered on Plaintiff’s administrative claim on February
7, 2013. The instant Complaint was filed January 26, 2015, which is more than
twenty-three months after the final administrative decision and more than
seventeen months late. The Sixth Circuit has held that a complaint dismissed without
prejudice does not toll the statute of limitations. See Holland v. United States, No.
3:11-CV-387, 2012 WL 4442755, at *2 (S.D. Ohio Sept. 25, 2012) (citing Wilson v.
Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir. 1987)).
Plaintiff has failed to comply with the statute of limitations set forth in 28
U.S.C. § 2401(b) because this Complaint was filed more than six months after the
final administrative decision. Additionally, Plaintiff has once again failed to attach an
Affidavit of Merit to this second Complaint. Therefore, the Complaint is barred and
Defendant’s Motion to Dismiss is granted for failure to state a claim and/or for
untimeliness.

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IT IS SO ORDERED.

s/ Christopher A.Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: October 29, 2015

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