Alexander v. United States of America et al, No. 3:2014cv00137 - Document 14 (S.D. Cal. 2014)
Court Description: ORDER Granting Defendant's Motion to Dismiss Without Leave to Amend 6 . In light of this order, Plaintiff's motion for leave to amend 12 is terminated. Signed by Judge Thomas J. Whelan on 5/5/2014. (vam)(jrd)
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Alexander v. United States of America et al Doc. 14 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 DAYNE ALEXANDER, 14 15 16 17 18 v. CASE NO: 14-CV-0137 W (KSC) Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WITHOUT LEAVE TO AMEND [DOC. 6] UNITED STATES OF AMERICA, et al., Defendant. 19 20 Pending before the Court is Defendant United States of America’s motion to 21 dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff Dayne 22 Alexander opposes. 23 The Court decides the matters on the papers submitted and without oral 24 argument. See Civ. L. R. 7.1(d.1). For the reasons discussed below, the Court 25 GRANTS the motion to dismiss [Doc. 6] and ORDERS the case DISMISSED 26 WITHOUT LEAVE TO AMEND. 27 28 -1- 14-cv-0137W Dockets.Justia.com 1 I. BACKGROUND 2 This lawsuit arises from an injury suffered by Plaintiff Dayne Alexander while 3 working out at the Olde Gym at the Naval Base San Diego. (Compl. [Doc. 1], ¶11.) 4 Alexander contends that while using the Maxicam Squat Rack Stairstep 2020, the 5 machine collapsed on him resulting in a fracture of the left femur, and later requiring 6 several surgeries. (Id., ¶ 12.) 7 On March 7, 2012, Alexander submitted a claim with Defendant United States 8 for $850,000 under the Federal Tort Claims Act (“FTCA”). (Opp. [Doc. 7], 5:14–15.) 9 On November 12, 2012, Defendant denied the claim, and on March 8, 2013, 10 Alexander filed a lawsuit in the Southern District of California entitled, Alexander v. 11 United States of America, Civil Case No. 13cv545 (the “Alexander I”). 12 Shortly after the lawsuit was filed, on July 3, 2013, Alexander filed a motion 13 seeking “leave to file a First Amended Claim Form, or in the alternative, to dismiss 14 [the] complaint and then file a new claim form followed by refilling [sic] of complaint. 15 . . .” (See Notice of Mt. [Doc 7 in Alexander I], 1:22–25.) According to the motion, 16 after the government claim was submitted, Alexander learned that he would require 17 more medical care and periods of recovery during which he would not be able to work. 18 (Memo of P&A [Doc. 7-1 in Alexander I], 3:8–10, 6:22–23.) As a result, Alexander 19 sought to amend his FTCA claim to increase the damages sought from $850,000 to $6 20 million. (Id., 6:1–2.) 21 On December 28, 2013, this Court issued an Order Granting In Part and 22 Denying In Part Plaintiff’s Motion to Amend or Dismiss Without Prejudice. (See Order 23 [Doc. 24 in Alexander I].) With respect to Alexander’s request to amend his FTCA 24 claim, Alexander failed to identify any authority allowing a claimant to file a motion to 25 amend an FTCA claim in district court. (Id., 3:9–11, 3:20–26.) 26 The Order explained, however, that notwithstanding the lack of authority to 27 move to amend a claim in district court, 28 U.S.C. § 2675(b) allowed Alexander to 28 seek damages in excess of $850,000 in Alexander I if he could demonstrate that “the -2- 14-cv-0137W 1 increased amount is based upon newly discovered evidence not reasonably discoverable 2 at the time of presenting the claim to the federal agency, or upon allegation and proof 3 of intervening facts, relating to the mount of the claim.” (Order, 3:28–4:3.) But the 4 Order further explained that the cases allowing claimants to pursue larger damage 5 claims made the determination that the increased damages were based on newly 6 discovered evidence “at trial, not at the start of the litigation before discovery has been 7 conducted.” (Id., 4:4–6.) Because Alexander I was still in the early stages of discovery, 8 the Court found that evaluating whether “Alexander’s increased damages are based on 9 newly discovered evidence at this stage in the litigation would be prejudicial to 10 Defendant,” particularly given that Alexander’s motion was based on evidence in his 11 possession. (Id., 4:23–5:3.) The Order, therefore, notified Alexander that as an 12 alternative to dismissing the case, he could “proceed with this litigation and seek a 13 determination about whether his increased damage claim is based on newly discovered 14 evidence at the appropriate time.” (Id., 6:3–5.) Instead, on December 26, 2013, 15 Alexander filed a request for dismissal without prejudice, which was granted on 16 December 30, 2013. 17 Meanwhile, on December 23, 2013, Alexander filed a second or amended 18 government claim form, which was rejected on January 16, 2014. On January 17, 2014, 19 Alexander filed this lawsuit, and Defendant’s motion to dismiss followed. 20 21 II. DISCUSSION 22 The FTCA provides, in part, that “a tort claim against the United States shall 23 forever be barred . . . unless action is begun within six months after the date of mailing, 24 by certified or registered mail, notice of final decision of the claim by the agency to 25 which it was presented.” 28 U.S.C. § 2401(b). Thus, a claimant “must file suit within 26 six months of administrative denial of the claim.” Dyniewicz v. United States, 742 F.2d 27 484, 485 (9th Cir. 1984). “Failure to satisfy this requirement deprives a court of subject 28 matter jurisdiction.” Galvan v. United States, 957 F.Supp.2d 1182 (E.D. Cal. 2013). -3- 14-cv-0137W 1 Here, the United States denied Alexander’s claim on November 12, 2012. Based 2 on this date, the limitations period expired on May 12, 2013. Because Alexander I was 3 filed on March 8, 2013, that lawsuit was timely. This case, however, was filed on 4 January 17, 2014, well beyond the 6-month FTCA limitations period. Accordingly, the 5 lawsuit is time barred as to the United States. 6 Alexander, nevertheless, argues that equitable tolling should apply to save his 7 case. However, Alexander’s argument is not supported by any authority and is contrary 8 to the Ninth Circuit’s decision in Lehman v. United States, 154 F.3d 1010 (9th Cir. 9 1998).1 10 In Lehman, plaintiffs filed an FTCA claim after being struck and injured by a 11 U.S. Postal Service truck. The claim was rejected and plaintiffs filed a timely lawsuit. 12 Plaintiffs later voluntary dismissed the lawsuit without prejudice, relying on an 13 agreement with the government’s attorney that the action “‘would be voluntarily 14 dismissed until Ms. Lehman’s medical condition had stabilized, at which point 15 settlement negotiations’ would resume.” Id. at 1012. According to plaintiffs, defense 16 counsel later repudiated the agreement and refused to settle. Plaintiffs then filed a new 17 lawsuit, more than a year after the Postal Service denied plaintiffs’ FTCA claim, and 18 the government moved to dismiss the new case as time barred. The district court 19 granted defendant’s motion. 20 On appeal, plaintiffs argued that the statute of limitations should be equitably 21 tolled based on the government’s agreement to allow plaintiff to voluntarily dismiss the 22 original lawsuit in order to engage in settlement negotiations. Lehman, 154 F.3d at 23 1015. Plaintiffs also argued that equitable tolling was justified because defense counsel 24 25 26 27 28 1 Alexander’s primary argument in opposition is that equitable tolling should apply. He also suggests that the Court should deem his December 23, 2013 FTCA claim as the operative claim for evaluating the 6-month FTCA limitations period, but he provides no supporting authority. (Opp., 10:2–4.) Moreover, Alexander’s argument is unpersuasive because it would create a large loophole in the 6-month limitations period by allowing a claimant to restart that period by simply filing a second claim within two years after the original claim accrued. -4- 14-cv-0137W 1 never advised plaintiffs’ counsel that the lawsuit would need to be re-filed within 6 2 months of the denial of the original FTCA claim. Id. 3 The Ninth Circuit explained that equitable tolling is applied sparingly, for 4 example, “when the statutes of limitations was not complied with because of defective 5 pleadings, when a claimant was tricked by an adversary into letting a deadline expire, 6 and when the agency’s written notice of the statutory period was clearly inadequate.” 7 Lehman, 154 F.3d at1016 (quoting Scholar v. Pacific Bell, 963 F.2d 264, 267–268 (9th 8 Cir. 1992)). However, “the doctrine is not available to avoid the consequences of one’s 9 own negligence,” such as “when a late filing is due to claimant’s failure ‘to exercise due 10 diligence in preserving his legal rights.’” Id. (emphasis in original). Nor is opposing counsel 11 obligated to advise his or her adversary about the statute of limitations. Because 12 defense counsel did not make any misrepresentations regarding the statute of 13 limitations or the effect of plaintiffs’ voluntary dismissal, the Ninth Circuit found that 14 plaintiffs failed to demonstrate their “ignorance of the limitations period was excusable” 15 and affirmed the dismissal. Id. at 1016. 16 Here, the argument for equitable tolling is even less compelling than in Lehman. 17 Unlike Lehman, there is no question that Alexander’s decision to dismiss Alexander 18 I was solely the result of his or his attorney’s strategy. Alexander I was not dismissed 19 because of any agreement between the parties, but instead was the direct result of 20 Alexander’s motion requesting that the Court allow him to dismiss the case without 21 prejudice. In fact, Defendant opposed Alexander’s request, and this Court’s Order in 22 Alexander I provided him with an alternative to dismissing the case: 23 Alexander may proceed with this litigation and seek a determination about whether his increased damage claim is based on newly discovered 24 evidence at the appropriate time. 25 (Order, 6:3–5.) Thus, unlike Lehman, where plaintiff was arguably encouraged by 26 defense counsel to dismiss the case, Alexander’s decision to dismiss Alexander I was 27 28 -5- 14-cv-0137W 1 based on his or his counsel’s strategy. Accordingly, equitable tolling does not apply to 2 this case.2 3 4 III. CONCLUSION & ORDER 5 For the foregoing reasons, the Court GRANTS Defendant United States’ motion 6 to dismiss [Doc. 6], and ORDERS this case DISMISSED WITHOUT LEAVE TO 7 AMEND. In light of this order, Plaintiff’s motion for leave to amend [Doc. 12] is 8 TERMINATED. 9 IT IS SO ORDERED.3 10 11 DATED: May 5, 2014 Hon. Thomas J. Whelan United States District Judge 12 13 14 15 16 2 17 18 19 20 21 22 23 24 25 26 27 28 Alexander also appears to suggest that the delay in deciding his motion to amend in Alexander I somehow contributed to his procedural problems. But Alexander’s FTCA claim was denied on November 12, 2012, and Alexander I was filed on March 8, 2013. Thus, the 6-month FTCA limitations period expired well before the motion was even filed, and any “delay” in deciding the motion did not contribute to or cause his statute of limitations problem. Additionally, Alexander appears to assert that Defendant’s motion to dismiss should be denied because his dismissal of Alexander I and attempt to amend his claim form was approved or sanctioned by this Court: “Plaintiff requests this court recognize Plaintiff’s December 23, 2013 claim form as the ‘operative’ claim form filed consistent with and per this court’s December 18, 2013 order.” (Opp., 4:19–21.) This assertion lacks merit. The Court’s responsibility is to decide motions filed by the parties. Here, Alexander’s motion in Alexander I requested an order amending his claim form or, alternatively, allowing him to voluntarily dismiss the case without prejudice. Based on the applicable law, this Court determined that it could not grant a motion to amend, but Alexander was entitled to dismiss the case without prejudice. The Court was not asked, and did not determine, whether dismissal was wise or would create procedural problems for Alexander. 3 Alexander’s opposition also requests that the Court set aside his voluntary dismissal in Alexander I. Because Alexander’s request is more appropriately decided in Alexander I, the Court need not address that issue here. -6- 14-cv-0137W
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