United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO
AMEND, GRANTING DEFENDANT'S MOTION TO DISMISS, AND
DISMISSING THE COMPLAINT WITH PREJUDICE
H. CLELAND, UNITED STATES DISTRICT JUDGE
before the court is a Motion to Dismiss filed by Defendant
United States and a Motion to Amend filed by Plaintiff Bryan
Florian. Plaintiff asserts that amendment will cure the
filing defect raised in Defendant's Motion to Dismiss.
Defendant asserts that amendment of the complaint is futile
because the statute of limitations on Plaintiff's claims
has run. These motions have been fully briefed, and the court
concludes that a hearing is not necessary. See E.D.
Mich. 7.1(f)(2). For the reasons stated below, the court will
deny Plaintiff's Motion to Amend and grant
Defendant's Motion to Dismiss.
brings claim under the Federal Tort Claims Act
(“FTCA”) for negligence and medical malpractice
stemming from the care he received at the Ann Arbor Veterans
Affairs Medical Center beginning in April 2014. Plaintiff
received notice of final administrative denial of his claims
on April 26, 2018. (ECF No. 1-3), and he filed his complaint
on October 26, 2018-the last day of his six-month filing
window pursuant to 28 U.S.C. § 2401(b). Defendant moves
to dismiss the complaint with prejudice because it does not
contain an affidavit of merit as required by Michigan's
malpractice statute, M.C.L. § 600.2912. Additionally,
Defendant asserts that amendment would be futile because the
statute of limitations on Plaintiff's claims has run and
Plaintiff is not eligible for equitable tolling under
Michigan law. (ECF No. 8, PageID 43.) In his Motion to Amend,
Plaintiff asserts that amendment to include a recently
obtained affidavit of merit will cure his filing defect.
12(b)(6) motion to dismiss tests the sufficiency of a
complaint. Riverview Health Inst. LLC v. Med. Mut. of
Ohio, 601 F.3d 505, 512 (6th Cir. 2010). A court may
dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
“To survive a motion to dismiss, a litigant must allege
enough facts to make it plausible that the defendant bears
legal liability.” Agema v. City of Allegan,
826 F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of the cause of action will not do.” Smith v.
Tipton Cty. Bd. of Educ., 916 F.3d 548, 551-52 (6th Cir.
2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “Like other Rule 12(b)(6) motions to
dismiss, a motion to dismiss on statute of limitations
grounds should be granted ‘when the statement of the
claim affirmatively shows that the plaintiff can prove no set
of facts that would entitle him to relief.'”
New Eng. Health Care Employees Pension Fund v. Ernst
& Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003)
(quoting Ott v. Midland-Ross Corp., 523 F.2d 1367,
1369 (6th Cir. 1975)).
determining whether to grant a Rule 12(b)(6) motion, the
court “must construe the complaint in the light most
favorable to the plaintiff, accept all factual allegations as
true, and determine whether the complaint contains
‘enough facts to state a claim to relief that is
plausible on its face.'” United States v.
Brookdale Senior Living Cmtys., Inc., 892 F.3d 822, 830
(6th Cir. 2018) (quoting Twombly, 550 U.S. at 570).
The court does not, however, “accept as true . . .
‘legal conclusions or unwarranted factual
inferences.'” Theile v. Michigan, 891 F.3d
240, 243 (6th Cir. 2018) (quoting Mixon v. Ohio, 193
F.3d 389, 400 (6th Cir. 1999)).
Rule of Civil Procedure 15(a)(1) authorizes amendment of
pleadings as a matter of right within 21 days of service.
When, as here, a party seeks to amend a pleading outside of
the time to amend as a matter of right, “the court
should freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). Factors that may affect this
determination include undue delay in filing, bad faith or
dilatory motive, undue prejudice, repeated failure to cure
deficiencies by previous amendment, or futility of amendment
by the moving party. See Head v. Jellico Hous.
Auth., 870 F.2d 1117, 1123 (6th Cir. 1989) (citation
omitted). The ultimate decision to grant or deny leave to
amend a pleading is left to the sound discretion of the
district court. See Robinson v. Michigan Consol. Gas Co.,
Inc., 918 F.2d 579, 591 (6th Cir. 1990).
claims arise under the FTCA. Under the FTCA, “liability
on the part of the federal government . . . is determined in
accordance with the law of the state where the event giving
rise to liability occurred.” Young v. United
States, 71 F.3d 1238, 1242 (6th Cir. 1995) (citing 28
U.S.C. §§ 1346(b), 2674). This means that
“liability of the federal government is determined by
the law of the State in which the incident occurred.”
Whittington v. United States, 99 Fed.Appx. 56, 58
(6th Cir. 2004). Plaintiff's claims arose in Michigan, so
the court applies Michigan substantive law but the federal
statute of limitations established by 28 U.S.C. § 2401.
See Kimbrell v. United States, 306 F.2d 98, 99 (6th
Cir. 1962) (quoting Md. ex rel. Burkhardt v. United
States, 165 F.2d 869, 871 (4th Cir. 1947) (“[T]he
purpose and effect of the language of the [FTCA] is that we
shall look to the law of the state for the purpose of
defining the actionable wrong for which liability shall exist
on the part of the United States, but to the act itself for
the limitations of time within which action shall be
instituted to enforce the liability.”)).
medical malpractice law requires a plaintiff to submit an
affidavit of merit with the complaint. See M.C.L.
§ 600.2912d (1). A complaint filed without an affidavit
of merit does not toll the statute of limitations for a
plaintiff's claims. See Scarsella v.
Pollak, 607 N.W.2d 711, 713 (Mich. 2000). Here,
Plaintiff filed his complaint on the last day of his
six-month statute of limitations under 28 U.S.C. §
2401(b). Michigan law plainly states that in such
circumstances, a plaintiff cannot escape dismissal with
prejudice by amending a complaint to include an affidavit of
merit after the statute of limitations has run:
[F]or statute of limitations purposes in a medical
malpractice case, the mere tendering of a complaint without
the required affidavit of merit is insufficient to commence
the lawsuit. . . . Furthermore, because the complaint without
an affidavit was insufficient to commence plaintiff's
malpractice action, it did not toll the period of limitation.
Plaintiff contends that he should have been allowed to amend
his . . . complaint by appending the untimely affidavit of
merit. He reasons that such an amendment would relate back,
see M.C.R. 2.118(D), making timely the newly completed
complaint. We reject this argument for the reason that it
effectively repeals the statutory affidavit of merit
Scarsella, 607 N.W.2d at 713 (internal citations
omitted); see also Tolbert v. UnitedStates, No. 17-10273, 2017 WL 6539254 at *8-10 (E.D.
Mich. Dec. 21, 2017) (Tarnow, J.) (dismissing with prejudice
a Michigan medical malpractice claim under the FTCA where the
plaintiff failed to submit an affidavit of merit ...