Stout et al v. Long et al

Filing 89

MEMORANDUM OPINION AND ORDER granting 98 Defendant City of Oklahoma City's Partial Motion to Dismiss. Signed by Honorable William P Johnson on 8/1/16. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

LANCE STOUT, et al.,
Plaintiffs,
v.

Case No. 15-cv-379-WPJ

UNITED STATES OF AMERICA, et al.
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT CITY’S PARTIAL MOTION TO DISMISS
THIS MATTER comes before the Court upon Defendant City of Oklahoma City’s
(“Defendant” or “City”) Partial Motion to Dismiss (Doc. 47), filed November 25, 2015. Having
reviewed the parties’ briefs and applicable law, the Court finds that Defendant’s motion is welltaken and therefore GRANTED as herein described.
FACTUAL BACKGROUND
Given the filings to date, the Court assumes the reader’s familiarity with the factual
allegations underlying this action. However, the Court highlights relevant procedural
developments. The City filed a Partial Motion to Dismiss (Doc. 47) on November 25, 2015.
Plaintiffs Lance and Barbre Stout (“Plaintiffs”) filed a Response (Doc. 53) on December 14,
2015. The City filed a Reply (Doc. 55) on December 21, 2015.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a case
for failure to state a claim upon which relief can be granted. Rule 8(a)(2), in turn, requires a
complaint to contain “a short and plain statement of the claim showing that the pleader is entitled

to relief.” Thus, “[t]o 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.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although a court must accept all the complaint’s factual allegations as true, the same is not true
of legal conclusions. See id. Mere “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Thus, in ruling on a
motion to dismiss, a court should disregard all conclusory statements of law and consider
whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the
defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
DISCUSSION
The City’s Motion to Dismiss raises two arguments: first, that Plaintiffs have failed to
comply with the Oklahoma Governmental Tort Claims Act (“OGTCA”), and second, that
Plaintiffs have failed to state a negligence claim against the City. The Court addresses each
argument in turn.
A.

Compliance with the Oklahoma Governmental Tort Claims Act
The City argues that Plaintiffs’ Second Amended Complaint has failed to plead

compliance with the OGTCA’s notice provisions, a jurisdictional requirement, and moreover,
Plaintiffs have failed to actually comply with the notice provision mandated by the OGTCA.
Therefore, their state law claims against the City are barred. The notice provision states that a
person may not maintain an action against the City unless they have filed a tort claim notice and
that claim is denied or deemed denied upon the expiration of the 90-day review period. A person
then has 180 days to file a lawsuit from the date of denial. In this case, Plaintiffs’ former counsel
filed a lawsuit and on the same day sent a tort claim notice to the City, which was received on

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July 22, 2013. This failed to comply with the OGTCA 90-day review period. The 90-day review
period expired on October 17, 2013. The City was ultimately dismissed from Stout I, docketed as
13-cv-753. Thus, Plaintiffs then had until April 15, 2014 in which to file their lawsuit. Plaintiffs’
current counsel filed their lawsuit on April 8, 2015, well after the 180-day period. The Oklahoma
Supreme Court has explained that a claimant whose action has been previously dismissed may
re-file the action after the 90-day period but before expiration of the 180-day limitation. See
Hathway v. State ex rel., Medical Research and Technical Auth., 49 P.3d 740, 744 (Okla. 2002).
Therefore, the City argues that Plaintiffs have failed to plead compliance with the OGTCA and
failed to actually comply with the notice provisions. As compliance is jurisdictional in nature,
Plaintiffs’ state law claims against the City must be dismissed.
Plaintiffs argue that only substantial compliance with the requirements of the OGTCA is
required and the City has failed to state how this delay prejudiced their defense. See Lopez v.
City of Tulsa, OK, No. 09-cv-757-TCK-FHM, 2012 WL 3825395, *3 (N.D. Okla. Sept. 27,
2010) (“Rather ‘[s]ubstantial compliance with the notice provision of the GTCA is sufficient
when the political subdivision is not prejudiced, and the provided information satisfies the
purposes of the statutory notice requirement.’”) (citations omitted). Further, Plaintiffs argue that
the federal court system is not required to adhere to additional state court procedural
prerequisites before bringing suit if they are in violation of Federal Rule of Civil Procedure 8.
Additionally, Plaintiffs argue that the City’s reliance on Hathway is misplaced because that case
examined a claim filed too early rather than too late.
The Court finds, as the City argues in its Reply, that timely notice of the tort claim is a
jurisdictional prerequisite to bringing suit, which the Oklahoma Supreme Court has explained
prevents a court from exercising subject matter jurisdiction to extend the 180-day time period

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governing the OGTCA. See Shanbour v. Hollingsworth, 918 P.2d 73, 75 (Okla. 1996) (affirming
the district court’s determination that it lacked jurisdiction to extend the time period, even when
the suit was commenced only two days outside of the 180-day time period due to the attorney’s
need to undergo non-elective surgery). The Court also agrees with the City that Lopez v. City of
Tulsa, OK, cited by Plaintiffs, addressed the OGTCA requirement that the claim notice
adequately describe the nature of the claim and did not address compliance with the time periods
for filing the claim. Additionally, the Court does not credit Plaintiffs’ argument that Federal Rule
of Civil Procedure 8 allows state tort claim notice requirements regarding a state law claim to be
ignored simply because the lawsuit is brought in federal court.
There is an issue pending before the Court in an Order to Show Cause (Doc. 70) on
whether Plaintiffs’ former counsel abandoned legal representation of Plaintiffs so that the Court
should apply the doctrine of equitable estoppel to toll the limitations period for Plaintiffs’ federal
claims. For purposes of analyzing and ruling on the instant motion, the Court assumes that
Plaintiffs’ former counsel abandoned their clients. Additionally, the Court notes that there is
considerable authority from multiple federal circuit courts allowing equitable tolling in civil
cases where a finding of abandonment has been made and the time limit to bring a claim is nonjurisdictional. However, in contrast to federal case precedent interpreting federal law, the
Oklahoma Supreme Court has found that the 180-day time period is jurisdictional in nature and
may not be extended, even for reasons of excusable neglect. Therefore, the Court agrees with the
City that Plaintiffs’ state law claims are barred.
B.

Negligence Claim Against the City
Plaintiffs’ Second Amended Complaint (Doc. 45), filed November 13, 2015, alleges

claims against the City under 42 U.S.C. § 1983 and a state law negligence/wrongful death claim.

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Plaintiffs have also alleged a negligence/wrongful death claim against the United States under
the Federal Tort Claims Act (“FTCA”), as well as Bivens and § 1983 claims against the
individual law enforcement officers. The individual defendants are all employees of local law
enforcement agencies, with the exception of Defendants Stephens and Groom, who were serving
as Special Deputy U.S. Marshals at the time of the incident.
Defendant argues that the FTCA provides that it is the exclusive remedy for torts
committed by a federal employee, including temporary agents. See Farag v. United States, 587
F. Supp. 2d 436, 471 (E.D.N.Y. 2008). The United States’ certification that an individual was
acting in a federal capacity automatically converts a tort-based claim against an individual to an
action against the United States. See Void-El v. O’Brien, 811 F. Supp. 2d 255, 259–60 (D.C. Cir.
2011). Defendant notes that this Court has already overruled Plaintiffs’ objections to the United
States’ certification and spoken unambiguously on the question of the United States’ Westfall
Act certification in Stout II. See 14-cv-427-WPJ, Doc. 68. Thus, Defendant argues that the
United States is the only proper defendant for the tort-based claims of negligence/wrongful death
based on state law. Because the individual local law enforcement officers were all acting as
federal employees at the time of the incident, any alleged negligent conduct is attributable to the
federal government, not the City. Thus, Defendant concludes that Plaintiffs’ Second Claim for
Relief should be dismissed.
Plaintiffs argue that the United States’ Westfall Act certification does not apply to the
City itself as the City is not and cannot be a federal employee. Additionally, the FTCA does not
shield the City from liability for their alleged failure to properly train their employees, and
municipalities may be considered persons under § 1983 and therefore liable for constitutional
violations. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). Additionally, Plaintiffs

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argue that Defendant Johnson was acting as an employee of the City and was still operating
pursuant to the scope of the City’s employment when the incident occurred. Under the loaned
servant doctrine, there is a factual question as to whether or not the City released full authority
and control of Officer Johnson to the United States Marshal’s Service. Plaintiffs argue that the
facts as presented show that the City had not surrendered full control of Officer Johnson to the
United States.
The City replies, and the Court agrees, that the majority of Plaintiffs’ Response Brief
responds to an argument that the City seeks dismissal of all claims against it on FTCA grounds.
However, the City only seeks dismissal of Plaintiffs’ state law negligence/wrongful death claim
against the City. The Court has already determined that the Attorney General certified that the
individuals defendants were federal employees acting within the scope of their employment, and
Plaintiffs failed to show facts rebutting the presumption that substitution under the Westfall Act
was proper. The Tenth Circuit has also recognized that the United States should be substituted as
the sole defendant when an action is brought under the FTCA. See Richman v. Straley, 48 F.3d
1139, 1145 (10th Cir. 1995). Further, a law enforcement officer’s conduct can be attributed to
the federal government despite the fact that the officer is employed by a municipality. See West
v. City of Mesa, No. CV-12-00657-PHX-DGC, 2015 WL 1959467, *9 (D. Ariz. April 29, 2015).
The Court agrees that because the individual local law enforcement officers were all acting as
federal employees at the time of the incident, any alleged negligent conduct is attributable to the
federal government, not the City. Plaintiffs argue that dismissal of the state law
negligence/wrongful death claim could impact the City’s liability as to Plaintiffs’ § 1983 claims.
While that may be the case, the United States’ Westfall Act certification and Plaintiffs’ failure to
rebut the presumption that certification was proper means that the state law negligence/wrongful

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death claims must be dismissed.
CONCLUSION
Thus, Plaintiffs’ Second Claim for Relief alleging negligence/wrongful death as to the
City is hereby dismissed. The Court makes clear that Plaintiffs’ First Claim for Relief, a 42
U.S.C. § 1983 claim against the City, remains in the litigation and therefore the City itself
remains as a Defendant.
Accordingly, the Court finds that Defendant’s Partial Motion to Dismiss is well-taken
and therefore GRANTED.
SO ORDERED

________________________________
UNITED STATES DISTRICT JUDGE

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