United States District Court, E.D. Michigan, Southern Division
DEBRA A. BOND, personal representative for the estate of JESSICA M. BOND, deceased, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
Patricia T. Morris, Mag. Judge
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
DISMISS (ECF NO. 21)
V. PARKER, U.S. DISTRICT JUDGE
October 4, 2018, Plaintiff initiated this action alleging
medical malpractice against the United States under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b)(1), 2671 et seq., when a physician at a
federally-funded clinic allegedly failed to properly treat
Jessica M. Bond. (Compl., ECF No. 1, Pg. ID 3, 5.) Presently
before the Court is the Defendant's Motion to Dismiss,
arguing Plaintiff's claims are time-barred by the
FTCA's statute of limitations. (Dismiss Mot., ECF No. 21,
Pg. ID 82-83.) The Motion has been fully briefed. (ECF Nos.
21, 22, 23.) Finding the facts and legal arguments
sufficiently presented in the parties' briefs, the Court
is dispensing with oral argument pursuant to Local Rule
7.1(f). For the reasons that follow, the Court grants
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). 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.” To survive a motion to dismiss, a complaint
need not contain “detailed factual allegations, ”
but it must contain more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action . . ..” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint
does not “suffice if it tenders ‘naked
assertions' devoid of ‘further factual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
As the Supreme Court provided in Iqbal and
Twombly, “[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.'” Id. (quoting Twombly,
550 U.S. 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. (citing
Twombly, 550 U.S. at 556). The plausibility standard
“does not impose a probability requirement at the
pleading stage; it simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of
illegal [conduct].” Twombly, 550 U.S. at 556.
In deciding whether the plaintiff has set forth a
“plausible” claim, the court must accept the
factual allegations in the complaint as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). This presumption is not
applicable to legal conclusions, however. Iqbal, 556
U.S. at 668. Therefore, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555).
LAW & ANALYSIS
the FTCA waives immunity and allows a plaintiff to sue the
federal government for personal injury or damage caused by
the negligent or wrongful acts or omissions of government
employees, a plaintiff must file suit against the United
States in federal court within six months of the date on
which the agency mails its final denial of Plaintiff's
administrative tort claim. 28 U.S.C. § 2401(b); see
Zappone v. United States, 870 F.3d 551 (6th Cir. 2017),
cert. denied, 138 S.Ct. 1303 (2018). When a
plaintiff fails to file suit within that time, her claim is
“forever barred” by the statute. Id.
§ 2401(b); Zappone, 870 F.3d at 555.
alleges as follows. On July 2, 2012, Plaintiff was improperly
treated by a physician at Health Delivery, Inc.'s
(“Health Delivery”) federally-funded HDI Express
Clinic. (Compl. at 5-7, Pg. ID 5-7.) The next day, after
being sent home by a physician at Health Delivery, Plaintiff
died from an undiagnosed, untreated pulmonary embolism.
October 2014, Plaintiff initiated a lawsuit in state court.
(Pl. Resp., ECF No. 22, Pg. ID 131.) Plaintiff's state
court suit came about three months after the expiration of
the FTCA's two-year deadline to submit an administrative
tort claim to a federal agency-expiring on or about July 3,
2014. See 28 U.S.C. § 2401(b). On March 17,
2016, Plaintiff presented an administrative tort claim to the
U.S. Department of Health and Human Services
(“HHS”)-about two years after the deadline.
(Id.; Admin. Tort Claim, ECF No. 21-2, Pg. ID 109,
111.) On December 12, 2016, HHS denied Plaintiff's
administrative claim. (Admin. Denial, ECF No. 21-3, Pg. ID
124; Compl. ECF No. 1, Pg. ID 3.) On May 12, 2017, six months
later, the FTCA's deadline for filing suit in federal
court expired. 28 U.S.C. § 2401(b). Plaintiff filed this
suit on October 4, 2018, about 16 months after the FTCA's
deadline. (Id.; see also Compl., ECF No.
FTCA requires a plaintiff to meet two statute of limitation
deadlines: (1) an administrative claim must be presented in
writing to the appropriate Federal agency within two years
after such claim accrues; and (2) a claim must be filed in
federal court within six months after the date of mailing of
notice of final denial of the claim by the agency to which is
was presented. 28 U.S.C. § 2401(b). Failure to meet
either of these time constraints time-bars the claims.
injury occurred in July 2012, but she did not submit her
administrative tort claim until March 2016-almost two years
after the FTCA's first statute of limitations expired.
Also, Plaintiff filed this suit in federal court on October
4, 2018-almost 16 months after the FTCA's second statute
of limitations expired. Consequently, under the plain
language of the FTCA, Plaintiff's claims are
“forever barred, ” including Plaintiff's loss
of consortium claim. 28 U.S.C. § 2401(b); see
Krueger v. United States, No. 16-13493, 2017 WL 512793
at *3 (E.D. Mich. Feb. 8, 2017) (dismissing loss of
consortium claim brought under the FTCA as time-barred where
the plaintiff “did not file a law suit within six
months of the final denial of his administrative
requests this Court find equitable tolling for each of the
FTCA's limitation periods. (Pl. Resp., ECF No. 22, Pg. ID
133-34.) The Sixth Circuit has held that equitable tolling is
available “when a litigant's failure to meet a
legally-mandated deadline unavoidably arose from
circumstances beyond that litigant's control.”
Jackson v. United States, 751 F.3d 712, 718 (6th
Cir. 2014) (citation omitted). While equitable tolling may be
applied in suits against the government, Zappone,
870 F.3d at 556, Plaintiff has not offered any circumstance
beyond her control for the Court to consider. Plaintiff
contends that, since 2014, “new information was
discovered and unexpected hurdles were presented” but
“Plaintiff has been diligently pursuing her rights
within the legal system since [then].” (Pl. Resp. at 9,
Pg. ID 134.)
Court finds Plaintiff's argument for equitable tolling
factually and legally insufficient. See Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)
(“the principles of equitable tolling . . . do not
extend to what is at best a garden variety claim of excusable
neglect.”). Therefore, the Court concludes that
Plaintiff's claims are ...