Kennedy v. United States of America Veterans Administration et al
Filing
38
ORDER granting 15 Defendant's Motion to Dismiss. Signed by Judge Gregory L Frost on 12/16/11. (sem1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT KENNEDY,
Plaintiff,
Case No. 2:11-cv-150
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel
v.
UNITED STATES OF AMERICA
VETERANS ADMINISTRATION, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court for consideration of a motion to dismiss (ECF No. 15)
field by Defendant the United States of America, a memorandum in opposition (ECF No. 25)
filed by Plaintiff, a reply memorandum (ECF No. 27) filed by Defendant, a notice of
supplemental authority (ECF No. 29) filed by Defendant, a response to the supplemental
authority (ECF No. 31) filed by Plaintiff, and a reply to the response (ECF No. 32) filed by
Defendant. For the reasons that follow, this Court must find the motion well taken.
I. Background
Plaintiff, Robert Kennedy, is a resident of the State of Ohio who was receiving medical
care in 2006 at the Veterans Administration Medical Center in Cincinnati, Ohio. On November
21, 2006, Plaintiff received an endoscopic sphenopalative artery ligation. Plaintiff alleges that
he was never advised of the possible adverse consequences of this surgery, that he failed to give
his informed consent to the procedure, and that as a result of negligence, he sustained damage to
all three branches of his trigentital nerve.
Plaintiff unsuccessfully sought to obtain relief via an administrative claim that was
denied in August 2010. Plaintiff then filed the instant action on February 18, 2011, asserting a
medical malpractice claim under the Federal Tort Claims Act (“FTCA”). Defendant the United
States of America has filed a motion to dismiss on behalf of all named defendants.1 The parties
have completed briefing on the motion to dismiss, which is ripe for disposition.
II. Discussion
Defendant moves for dismissal under Federal Rules of Civil Procedure 12(b)(1), which
provides that an action may be dismissed for lack of subject matter jurisdiction. Under the
Federal Rules of Civil Procedure, “[p]laintiffs have the burden of proving jurisdiction in order to
survive a Rule 12(b)(1) motion . . . .” Weaver v. Univ. of Cincinnati, 758 F. Supp. 446, 448
(S.D. Ohio 1991) (citing Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th
Cir. 1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197 F. Supp. 2d 1008, 1012 (S.D.
Ohio 2002) (citing McNutt v. General Motors Acceptance Corp. of Indiana, Inc., 298 U.S. 178,
189 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)) (“The plaintiff
bears the burden of establishing, by a preponderance of the evidence, the existence of federal
subject matter jurisdiction”).
Rule 12(b)(1) motions to dismiss based upon a lack of subject matter jurisdiction
generally come in two varieties, either facial or factual attacks on the complaint. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 2004). A facial attack on the subject matter jurisdiction
alleged by a complaint merely questions the sufficiency of the pleading. Id. In reviewing such a
1
Originally, the Complaint named as defendants the United States of America Veterans
Administration and doctors Matthew Hearst, Christopher Savage, and Lee Zimmer. The United
States of America subsequently filed a notice substituting itself for Hearst and Savage. (ECF
No. 22.) Plaintiff has to date failed to serve Zimmer, and the Magistrate Judge set an extended
deadline for service. (ECF No. 23, at 2.)
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facial attack, a trial court takes the allegations in the complaint as true, a similar safeguard
employed under Rule 12(b)(6) motions to dismiss. Id. On the other hand, when a court reviews
a complaint under a factual attack, no presumptive truthfulness applies to the factual allegations.
Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). See also Nat’l Ass’n
of Minority Contractors v. Martinez, 248 F. Supp. 2d 679, 681 (S.D. Ohio 2002). As a result,
this Court may weigh the evidence and resolve any factual disputes when adjudicating such a
jurisdictional challenge. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 2004) (citing Moir,
895 F.2d at 269.
Defendant alternately moves for dismissal under Federal Rule of Civil Procedure
12(b)(6), which requires an assessment of whether Plaintiff has set forth a claim upon which this
Court can grant relief. The Court must construe the Complaint in favor of Plaintiff, accept the
factual allegations contained in that pleading as true, and determine whether the factual
allegations presents a plausible FTCA claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 554,
570 (2007). The Supreme Court has explained, however, that “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. Consequently,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 1950.
To be considered plausible, a claim must be more than merely conceivable. Bell Atlantic
Corp., 550 U.S. at 556; Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d
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545, 548 (6th Cir. 2007). What this means is that “[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.” Iqbal, 129 S. Ct. at 1949. The factual
allegations of a pleading “must be enough to raise a right to relief above the speculative level . . .
.” Twombly, 550 U.S. at 555. See also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291,
295 (6th Cir. 2008).
B. Analysis
The United States Supreme Court has explained that “[t]he Federal Tort Claims Act is a
limited waiver of sovereign immunity, making the Federal Government liable to the same extent
as a private party for certain torts of federal employees acting within the scope of their
employment.” United States v. Orleans, 425 U.S. 807, 813 (1976). Under federal law,
Defendant is liable for a tort “in the same manner and to the same extent as a private individual
under like circumstances.” 28 U.S.C. § 2674. See also 28 U.S.C.A. § 1346(b)(1) (providing
jurisdictional grant for claims against the Government “under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred”). The statute of limitations for an FTCA claim is two years
from accrual or six months after denial of a claim by the appropriate federal agency to which the
claim was presented. 28 U.S.C. § 2401(b). Under Ohio law, however, the statute of repose for a
medical malpractice claim is four years. Ohio Rev. Code § 2305.113(C)(1). Defendant initially
asks for dismissal on the grounds that the state statute of repose for medical malpractice applies
to and bars Plaintiff’s FTCA claim.
It is well settled that “[t]he liability of the United States in actions under the Federal Tort
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Claims Act is governed by the law of the place where the alleged tort occurred.” Ward v. United
States, 838 F.2d 182, 184 (6th Cir. 1988). Notably less settled is whether the applicable state
law includes a state statute of repose. The parties disagree over whether Ohio’s statute of repose
applies to Plaintiff’s FTCA claim and direct this Court to various non-binding cases intended to
support their respective positions.
There is indeed no controlling authority on the FTCA-repose issue. Some judicial
officers have found that state statutes of repose do not apply to FTCA actions. See, e.g., Jones v.
United States, 789 F. Supp. 2d 883 (M.D. Tenn. 2011). Other judicial officers have applied state
statutes of repose in FTCA cases. See Huddleston v. United States, No. 3-11-0223, 2011 WL
2489995, at *2-3 (M.D. Tenn. June 22, 2011);2 West v. United States, No. 08-646-GPM, 2010
WL 4781146, at *4-5 (S.D. Ill. Oct. 25, 2010); Anderson v. United States, No. CCB–08–3, 2010
WL 1346409, at *3–4 (D. Md. Mar. 30, 2010); Vega v. United States, 512 F.Supp.2d 853,
859–61 (W.D. Tex. 2007); Manion v. United States, No. CV–06–739–HU, 2006 WL 2990381, at
*2–9 (D. Or. Oct. 18, 2006).
This Court agrees with the holding of the latter cases. Defendant correctly notes that
“Congress included only a statute of limitations in the FTCA and no statute of repose” and that
“there is no evidence that Congress wished to occupy the field or impliedly preempt state law
regarding statutes of repose.” (ECF No. 27, at 3.) Aware that state law applied to FTCA claims
under the statutory scheme it enacted, Congress elected to provide a statute of limitations for
2
This Court finds it of no consequence that the Huddleston court distinguished the
contrary Jones on the grounds that the plaintiff in Jones filed her administrative claim within the
repose period while the plaintiff in Huddleston did not. Huddleston, 2011 WL 2489995, at *2
n.4. The key fact is whether the FTCA claim was filed within the repose period, and in the case
sub judice it was not.
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such claims, distinguishing FTCA claims from federal claims such as those asserted under 42
U.S.C. § 1983 in which state law provides a statute of limitations. The purposeful enactment of
an applicable FTCA statute of limitations that rejected application of state limitations periods
without similar explicit rejection of state law providing a statute of repose weighs against
Plaintiff’s argument that the federal statute of limitation preempts the state statute of repose.
Congress can and has spoken to an issue when it desires preemption. It has not spoken to the
repose issue here.
Also unpersuasive is Plaintiff’s argument that estoppel precludes Defendant from
asserting the repose statute. Plaintiff posits the Defendant misled him into believing that he had
until six months after the denial of his administrative claim to file his FTCA claim in this Court.
Defendant complied with 28 C.F.R. § 14.9(a) in informing Plaintiff in its notification of final
denial that he could file an action within six months of the mailing of the notification. This is
hardly affirmative misconduct. Moreover, as Defendant notes, the notification statement “did
not relieve or purport to relieve Plaintiff of his responsibility to satisfy other substantive state
law requirements in order to maintain a cause of action pursuant to the FTCA.” (ECF No. 27, at
7-8.)
This Court is cognizant that the result of this analysis appears to be harsh. The Court also
recognizes that, in theory, a federal agency could wait until an applicable state statute of repose
has expired before denying an administrative claim and then argue that a plaintiff’s FTCA claim
was barred even though still within the post-denial, six-month federal statute of limitations. But
assuming arguendo that equitable considerations could create estoppel, such demonstrated
behavior may even still not constitute affirmative misconduct of the sort Defendant suggests
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would preclude reliance on a statute of repose.3 Such conduct might also raise questions
regarding whether application of the particular state statute of repose would be constitutional
under an as-applied challenge in particular circumstances, see, e.g., Ruther v. Kaiser, No.
CA2010-07-066, 2011 WL 1346836 (Ohio 12th Dist. Ct. App. Apr. 11, 2011), but that scenario
does not inform whether a state statute of repose applies in the first place under the federal-state
statutory scheme. In any event, Plaintiff has not asserted a constitutional challenge under either
the federal or state constitutions in this case.
Plaintiff’s argument that application of the state statute of repose places Defendant in a
better position than a private individual under like circumstances is incorrect. A private
individual can invoke the statute of repose. The FTCA statutory scheme provides Defendant
with the same right to extinguish a claim. A contrary conclusion would mean that Defendant can
be held liable where a private individual has evaded a claim, disturbing the expressed intent of
the statutory scheme. Congress can waive sovereign immunity as it sees fit.
The consequence of adopting by reference the better-reasoned cases finding state statutes
of repose applicable to FTCA claims proves dispositive of Plaintiff’s claim against Defendant.
The allegedly negligent act or acts involved in this lawsuit occurred in November 2006. Plaintiff
did not file this action until February 2011. Because Plaintiff did not file within the applicable
four-year statute of repose and because Ohio law would not permit such a claim to proceed
against a private individual under like circumstances, the Court must dismiss Plaintiff’s claim
3
A plaintiff could avoid such governmental conduct by taking advantage of 28 U.S.C.A.
§ 2675, which provides that “[t]he failure of an agency to make final disposition of a claim
within six months after it is filed shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim for purposes of this section.”
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against Defendant as barred. See Smith v. United States, 430 F. App’x 246, 247 (5th Cir. 2011)
(applying state statute of repose to bar FTCA claim filed beyond the period of repose). Having
reached this conclusion, the Court need not and does not reach Defendant’s alternative grounds
for dismissal.
III. Conclusion
The Court GRANTS Defendant’s motion to dismiss. (ECF No. 15.) This leaves for
discussion only the claim against Defendant Zimmer. If Zimmer is Defendant’s employee as
Plaintiff suggests, the claim falls under today’s rationale and the issue of lack of service is
irrelevant. If Zimmer is an independent contractor as Defendant suggests, then there is no action
because the FTCA does not provide a mechanism for such a claim. Thus, Plaintiff’s request for
discovery is not well taken and, because either factual possibility presents a scenario in which
Plaintiff cannot proceed, the Court lacks jurisdiction regardless of service and the fact that
Zimmer did not join the motion to dismiss. The Court sua sponte dismisses that component of
the action, if necessary. See Fed. R. Civ. P. 12(h)(3). The Clerk shall enter judgment
accordingly and terminate this case upon the docket records of the United States District Court
for the Southern District of Ohio, Eastern Division, at Columbus.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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