Abila v. United States of America, No. 2:2009cv01345 - Document 74 (D. Nev. 2012)
Court Description: ORDER Denying 65 Government's Motion to Dismiss. IT IS FURTHER ORDERED that 68 Plaintiff's Countermotion for Sanctions is Denied. Signed by Judge Kent J. Dawson on 10/3/2012. (Copies have been distributed pursuant to the NEF - SLD)
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Abila v. United States of America Doc. 74 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 13 DONNA ABILA, 14 Plaintiff, 15 v. 16 Case No. 2:09-CV-01345-KJD-VCF UNITED STATES OF AMERICA, 17 ORDER Defendant. 18 19 Before the Court is the Government’s Motion to Dismiss (#65) . Plaintiff has filed an 20 opposition and countermotion for sanctions (##66, 68). The Government has filed a reply (#71) and 21 Plaintiff has filed a response to the reply (#73). 22 Background 23 On June 2, 2005, Plaintiff was treated by a physician at the Mike O’Callaghan Federal 24 Hospital on Nellis Air Force Base. Plaintiff alleges serious injuries arising from the treatment she 25 received. On May 9, 2006, Plaintiff submitted to the Government form SF-95, initiating an 26 administrative claim as required by the Federal Tort Claims Act 28 U.S.C. § 2674 (the “FTCA”). Dockets.Justia.com 1 Over the next two and one-half years, Plaintiff and the Government worked to resolve the matter. 2 Eventually the parties reached an impasse. On February 12, 2009, almost four years after the injury 3 and almost three years after Plaintiff filed her administrative claim, the Government finally denied 4 Plaintiff’s claim in writing. The denial letter stated that if Plaintiff was unsatisfied with the 5 Government’s response, she could “file suit in an appropriate United States District Court not later 6 than six months after the date of mailing this letter.” (#33 Exh. 2). Plaintiff filed her Complaint on 7 July 24, 2009. 8 9 On February 17, 2011, the Government moved to dismiss the case for lack of subject matter jurisdiction, arguing that the action was barred because it was filed beyond the three-year limitations 10 period in N.R.S. 41A.097(2). On August 8, 2011, the Court issued an Order (#49) denying the 11 motion to dismiss and concluding that the FTCA preempted Nevada’s limitations period. The 12 Government now argues that the law on which the Court relied in its prior order has changed and that 13 this action should be dismissed. 14 I. Discussion 15 A. Legal Standard 16 The Government’s motion is presented as a motion to dismiss for lack of subject matter 17 jurisdiction. However, because it asserts the same grounds for dismissal as the prior motion, it is 18 construed as a motion for reconsideration. A motion to reconsider must provide the court with valid 19 grounds for reconsideration by: (1) showing some valid reason why the court should reconsider its 20 prior decision, and (2) setting forth facts or law of a strongly convincing nature to persuade the court 21 to reverse its prior decision. Frasure v. United States, 256 F. Supp. 2d 1180, 1183 (D. Nev. 2003). 22 “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, 23 (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening 24 change in controlling law.” School Dist. No. IJ, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 25 1263 (9th Cir.1993). 26 2 1 B. N.R.S. 41A.097(2) 2 Nevada law includes the following provision addressing when actions must be 3 initiated against health care providers: 4 [A]n action for injury or death against a provider of health care may not be commenced more than 3 years after the date of injury or 1 year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first... 5 6 7 N.R.S. 41A.097(2).1 8 C. Previous Order 9 The Court determined in its prior Order that “the Ninth Circuit has unambiguously held that 10 the FTCA’s statute of limitations, 28 U.S.C. § 2401 preempts any ‘state period of limitation.’” (Dkt 11 #49) (citing Poindexter v. U.S., 647 F.2d 34, 36 (9th Cir. 1981)). The Order stated that: 12 13 14 “a court must look to state law for the purpose of defining the actionable wrong for which the United States shall be liable, but to federal law for the limitations of time within which the action must be brought.”’ Poindexter v. U.S., 647 F.2d at 36. (emphasis added). While a statute of repose may be different than a statute of limitations, it certainly is a “limitation of time within which an action must be brought.” 15 (Dkt #49.) The Court ultimately held that the FTCA claim was timely. In coming to this conclusion, 16 the Court noted that: 17 18 19 Nevada courts have not specifically held that N.R.S. 41A.097(2) is a statute of repose or that it creates a substantive right. But even if it had, the Supreme Court has noted that state court determinations of those distinctions are “immaterial” to federal courts and stated “[p]lainly enough, a statute that would completely bar recovery in a suit if 20 1 21 22 23 24 25 26 At a June 15, 2010 deposition of the treating physician, the parties became aware of the existence of a multi-page post-operative report created by the physician immediately after the procedure at issue. This report had not been produced in previous discovery. Plaintiff contends that, if this statute applies, it is tolled pursuant to N.R.S. 41A.097(3) which provides: This time limitation is tolled for any period during which the provider of health care has concealed any act, error or omission upon which the action is based and which is known or through the use of reasonable diligence should have been known to the provider of health care. Because the Court affirms its previous determination that Nevada’s limitations period does not bar the claim, it need not decide whether omission of the report tolled the limitations period. 3 1 brought in a [s]tate court bears on a [s]tate created right vitally and not merely formally or negligibly.” Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99 (1945) (holding that a state statute of limitations is substantive state law in diversity actions under the Eire doctrine). Even though a statute of limitations is substantive law under Eire principles, the Court in Poindexter held that Congress’s intent was to allow FTCA suits otherwise barred by Arizona’s statue of limitations. The Government’s argument that the three-year limitation in N.R.S. 41A.097(2) bars this claim because it is substantive law is therefore unavailing. 2 3 4 5 (Id.) 6 In the Order, the Court noted two district court cases that dealt with similar questions: Zander 7 v. United States, 2011 WL 345884 (D.Md. 2011), and Jones v. U.S. 2011 WL 1565734 *9 8 (M.D.Tenn. 2011). In those cases, the plaintiffs timely filed administrative claims which were 9 ultimately denied after the state limitations periods had expired. The district courts in those cases 10 held that the FTCA preempted the state limitations periods. The Court examined these cases in its 11 prior order because they “comport with the holding in Poindexter.” 12 The Government now argues that the Fourth and Sixth Circuits have issued contrary opinions 13 “thereby overruling the cases on which this Court relied.” As previously indicated, the Court relied 14 upon Ninth Circuit law in reaching its decision, not Zander and Jones. Further, the cases cited by the 15 Government do not form a basis to set aside the prior Order. 16 D. Huddleston 17 The Tennessee Supreme Court has held that the three-year limitations period for medical 18 malpractice claims is a statute of repose. Mills v. Wong, 155 S.W.3d 916, 920 (Tenn. 2005). In 19 Huddleston v. United States, 2012 WL 1816261 (6th Cir. 2012), the court stated that in the case 20 before it, “applying Tennessee’s statute of repose to FTCA plaintiffs does not run afoul of the 21 Supremacy Clause.” However, the Sixth Circuit expressly stated: 22 We need not decide whether Huddleston could bring suit if he had filed his administrative claim with the VA within three years because Huddleston did not, in fact, file his claim with the VA until December 2009, two months after the statute of repose extinguished his claim. 23 24 25 Id. 26 4 1 The Government argues that Huddleston “effectively overrules Jones” because Jones states 2 that a plaintiff’s FTCA claim is extinguished “only if the claimant fails to meet the deadlines in [the 3 FTCA’s] § 2401(b), and a state’s statute of repose has no effect on the federal claim.” Jones, 2011 4 WL 1565734, at *9. The Government glosses over the very distinction between the cases that the 5 Sixth Circuit itself made: in Jones, the FTCA administrative claim was timely filed; in Huddleston it 6 was not. 7 Here, Plaintiff timely filed her administrative claim. The Court will not use Huddleston to 8 bar Plaintiff’s claim when the Sixth Circuit specifically declined to extend its opinion to these facts. 9 Additionally, unlike the Tennessee statute at issue in both Huddleston and Jones, N.R.S. 41A.097(2) 10 has not been held to be a statute of repose. Accordingly, Huddleston provides no basis for 11 reconsideration of the Court’s prior order. 12 E. Anderson 13 In Anderson v. U.S., the plaintiff timely filed her administrative claim, but after nearly four 14 years in the administrative process, it was finally denied. 669 F.3d 161, (4 Cir. 2011). Plaintiff filed 15 suit and the district court held that the claim was barred because Maryland’s five-year limitations 16 period was a statute of repose. The Fourth Circuit Court of Appeals certified to the Maryland Court 17 of Appeals the question of whether a statute that provides a time frame for filing actions against 18 health care providers is one of repose or limitations. The Fourth Circuit stated that 19 20 21 22 23 24 the key inquiry in this case is whether Section 5-109(a)(1) is a substantive statute of repose or a procedural statute of limitations. If the former, then Anderson’s claim may be barred, because allowing it to proceed would potentially impose liability on the government in a different manner and to a greater extent than on a private individual under like circumstances. If the latter, however, the FTCA’s two-year statute of limitations preempts the state statute and Anderson’s claim survives because it was properly presented within that period. Id. at 164-65. (citations omitted). The Government is correct that Fourth Circuit suggests that it would reject Zander’s holding 25 that the FTCA preempts a statute of repose. However, the Maryland Supreme Court ultimately 26 determined that the five-year limitations period is not a statute of repose, which ensured the survival 5 1 of the claim. See Anderson v. United States, 2012 WL 2361489 (Maryland, 2012). The 2 Government asks the Court to predict that Nevada’s Supreme Court would come to the opposite 3 conclusion, and then apply the hypothetical ruling contemplated by the Fourth Circuit. 4 This speculative argument does not warrant setting aside the Court’s previous Order. The 5 Court’s prior Order relied upon Ninth Circuit precedent holding that courts should look to federal 6 law in determining “the limitations of time within which the action must be brought.” Poindexter v. 7 U.S., 647 F.2d at 36. Anderson does not compel a different result. 8 F. Mamea 9 Mamea v. United States, a recent case from the District of Hawaii, illustrates the application 10 of current Ninth Circuit law in this area.2 In that case, the court noted that Hawaii law does not 11 specify whether the six-year limitations period for medical malpractice claims is a statute of repose. 12 However, the Mamea court determined that the distinction was not relevant because state limitations 13 periods are preempted by the FTCA’s limitations period in 28 U.S.C. § 2401(b). Mamea v. United 14 States. 2011 WL 4371712, (D.Hawaii, 2011). The Mamea court examined Poindexter and 15 concluded that “[t]he potential conflict between the time requirement for the filing of a civil action 16 pursuant to [Hawaii’s limitation period] and the time requirement for the filing of an administrative 17 claim pursuant to§ 2401(b) indicates that Congress intended § 2401(b) to occupy the field of both 18 statutes of limitations and statutes of repose.” Id. at *10.3 19 Mamea’s consistent holding further demonstrates that reconsideration of the Court’s prior 20 order is unwarranted. 21 III. Countermotion for Sanctions 22 23 Plaintiff seeks sanctions in the amount of $10,000. According to Plaintiff, the Government “misrepresented and mischaracterized” Anderson and Huddleston and refused to withdraw its 24 2 25 The United States has appealed the ruling in Maema. 9th Cir. Docket #: 11-17714. 3 26 The Mamea court cited to this Court’s prior Order and noted that the cases were factually distinguishable since, the plaintiff in Mamea did not file the administrative claim within the six-year limitations period. 6 1 motion after Plaintiff provided it with Mamea and the Maryland Supreme Court’s decision on the 2 question certified in Anderson. Nothing suggests an improper motive on the part of the Government 3 and sanctions are unwarranted. Accordingly, the countermotion is denied. 4 IV. Conclusion 5 Plaintiff timely filed her administrative claim. After nearly three years, when the claim was 6 ultimately denied, the Government informed Plaintiff that she could file an FTCA case in district 7 court within six months. Plaintiff filed this case within six months. 8 9 The Fourth and Sixth Circuit cases cited by the Government are distinguishable and Nevada and Ninth Circuit law do not compel the Court to dismiss this action under these facts. Accordingly, 10 IT IS HEREBY ORDERED that the Government’s Motion to Dismiss (#65) is DENIED. 11 IT IS FURTHER ORDERED that Plaintiff’s Countermotion for Sanctions (#68) is 12 13 DENIED. DATED this 3rd day of October 2012. 14 15 16 17 _____________________________ Kent J. Dawson United States District Judge 18 19 20 21 22 23 24 25 26 7
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