Montenegro v. United States Border Patrol

Filing 11

ORDER ON MOTION TO DISMISS granting 10 Leave to File Amended Complaint, denying 9 MOTION to Dismiss Complaint ( Amended Complaint due by 1/22/2016.)(Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GEORGE MONTENEGRO,
Plaintiff,
VS.
DEPARTMENT OF HOMELAND
SECURITY, et al,
Defendants.

December 31, 2015
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:15-CV-320
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ORDER ON MOTION TO DISMISS
Plaintiff, George Montenegro, filed this action complaining of a dog bite from a
canine officer at a border patrol checkpoint against “the United States Department of
Homeland Security, US Customs and Border Protection.” D.E. 1. Before the Court is the
“Motion to Dismiss Complaint Against the United States Department of Homeland
Security” (D.E. 9). The United States claims that the case was improperly filed against a
federal agency rather than against the United States. It further claims that Plaintiff should
not be permitted to correct his mistake because it would be futile, given that the
complaint was filed one day past the statute of limitations.
Plaintiff agrees with the United States that a bare calculation of the Federal Tort
Claims Act (FTCA) statute of limitations, 28 U.S.C. § 2401(b), shows that it expired on
July 26, 2015. However, Plaintiff has pointed out correctly that July 26, 2015 fell on a
Sunday. Therefore, pursuant to Federal Rule of Civil Procedure 6(a)(1)(C), the time
period is extended to the next day, July 27, 2015—the date on which Plaintiff filed his
complaint. See generally, In re Gotham Provision Co., Inc., 669 F.2d 1000, 1014 (5th
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Cir. 1982) (applying Rule 6(a) weekend computation rules to federal statutes of
limitations, generally); Frey v. Woodard, 748 F.2d 173, 175 (3d Cir. 1984) (holding that
Rule 6 should be applied to the FTCA limitations provision).
Thus it would not be futile for Plaintiff to amend his complaint to bring this action
against the United States rather than against the relevant agency, as required. And
Plaintiff has requested leave to do so. Leave to amend should be freely granted absent
countervailing circumstances. Fed. R. Civ. P. 15(a)(2). This action is in its infancy and
the parties will not be prejudiced by the amended complaint.
For the reasons set out above, the Court DENIES the motion to dismiss (D.E. 9)
and GRANTS LEAVE to Plaintiff to file his amended complaint on or before January 22,
2016.
ORDERED this 31st day of December, 2015.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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