FRP v. Lear et al, No. 1:2021cv03064 - Document 6 (E.D. Wash. 2021)
Court Description: ORDER GRANTING 2 DEFENDANTS' MOTION TO DISMISS; Plaintiffs' claims are DISMISSED WITH PREJUDICE, ALL pending motions are DENIED AS MOOT; All hearings and other deadlines are STRICKEN. File Closed. Signed by Judge Salvador Mendoza, Jr. (MRJ, Case Administrator)
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FRP v. Lear et al Doc. 6 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Sep 24, 2021 2 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 5 FREDERICK W. PORTER, and HOLLY A. PORTER, as guardian ad litems for F.R.P., a minor child, 6 Plaintiffs, No. 1:21-cv-03064-SMJ ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 7 v. 8 9 10 BRIAN M. LEAR, M.D., and PATRICK D. VIGIL, M.D., Defendants. 11 Before the Court, without oral argument, is Defendants’ Motion and 12 Memorandum for Dismissal, ECF No. 2. Defendants Brian M. Lear, M.D. and 13 Patrick D. Vigil, M.D. seek dismissal of Plaintiffs’ complaint alleging medical 14 negligence, arguing that Plaintiffs’ claims are time barred for failure to comply with 15 the Federal Tort Claim Act’s applicable statute of limitations. Having reviewed the 16 relevant record, the Court is fully informed and grants Defendants’ motion. 17 BACKGROUND 18 On December 27, 2016, Defendant Lear, acting under the supervision of 19 Defendant Vigil, performed a routine circumcision procedure on F.R.P.—a minor 20 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS – 1 Dockets.Justia.com 1 child who was an infant at the time of the procedure. ECF No. 1-1 ¶ 3. Both 2 Defendants, at all relevant times, were licensed physicians acting within the scope 3 of their employment at a federal qualified public health care clinic. ECF No. 2 at 1. 4 On August 21, 2019, Plaintiffs Frederick Porter and Holly Porter, on behalf 5 of minor F.R.P., filed an administrative Federal Tort Claims Act (“FTCA”) claim 6 on Standard Form 95 (SF 95) with the Department of Health and Human Services, 7 alleging that F.R.P. sustained medical injury from a “[b]otched circumcision” 8 occurring on December 27, 2016. ECF 3-1. 9 Yet, despite filing a SF 95 with the appropriate federal agency, Plaintiffs also 10 filed a lawsuit in Yakima County Superior Court on October 9, 2020. ECF No. 1- 11 1. Plaintiffs’ complaint alleged medical negligence by Defendants and sought 12 money damages. Id. 13 Defendants’ employer—Community Health of Central Washington—is a 14 federally assisted public health clinic. ECF No. 2 at 3. As a result, Defendants 15 removed Plaintiffs’ medical negligence claim to this Court. ECF No. 1. Defendants 16 then filed a motion to dismiss, alleging noncompliance with the FTCA’s statute of 17 limitations. ECF No. 2. Plaintiffs filed a response, indicating they would not 18 substantively contest the motion. ECF No. 5. Indeed, Plaintiffs acknowledged “that 19 without a response the Court is very likely to grant the Defendants’ motion which 20 would result is [sic] dismissal of the case.” Id. a 2. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS – 2 1 LEGAL STANDARD 2 Under Federal Rule of Civil Procedure 12(b)(6), the Court must dismiss a 3 complaint if it “fail[s] to state a claim upon which relief can be granted,” including 4 when the plaintiff’s claims either fail to allege a cognizable legal theory or fail to 5 allege sufficient facts to support a cognizable legal theory. Kwan v. SanMedica Int’l, 6 854 F.3d 1088, 1093 (9th Cir. 2017). To survive a Rule 12(b)(6) motion, a 7 complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim 8 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 10 Ordinarily, a court may not consider material outside the pleadings when 11 ruling on a Rule 12(b)(6) motion. Fed. R. Civ. P. 12(b)(6). However, there are two 12 exceptions: (1) courts may rely on documents outside the pleadings if their 13 “authenticity . . . is not contested and the plaintiff’s complaint necessarily relies on 14 them;” and (2) “a court may take judicial notice of matters of public record.” Lee v. 15 City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). 16 Plaintiffs’ complaint did not reference their FTCA claim filed on August 21, 17 2019. Nonetheless, the Court finds Plaintiffs’ SF 95 claim, filed with the 18 Department of Health and Human Services, is a matter of public record and takes 19 judicial notice of it. Accordingly, the Court considers Plaintiffs’ FTCA claim—in 20 particular, the date it was filed—in ruling on Defendants’ motion to dismiss. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS – 3 DISCUSSION 1 2 “The United States, as sovereign, is immune from suit save as it consents to 3 be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941). In enacting the 4 FTCA, the United States has consented to certain suits by allowing individuals to 5 sue the government “for injury or loss of property, or personal injury or death 6 caused by the negligent or wrongful act or omission of any employee of the 7 Government while acting within the scope of his office or employment.” 28 U.S.C. 8 § 1346(b). 9 But this waiver of immunity is not unlimited. In such actions, a claimant must 10 first present their claim to the appropriate federal agency. 28 U.S.C. § 2675. And 11 such claims are “forever barred unless it is presented in writing to the appropriate 12 Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b) 13 (emphasis added). This limitation period is strictly construed. United States v. 14 Kubrick, 444 U.S. 111, 117–18, (1979) (“[I]n construing the statute of limitations, 15 which is a condition of that waiver, we should not take it upon ourselves to extend 16 the waiver beyond that which Congress intended.”). Failure to present a claim 17 within two years is a jurisdictional defect. Landreth By & Through Ore v. United 18 States, 850 F.2d 532, 533 (9th Cir. 1988). 19 In medical negligence cases under the FTCA, a claim accrues “when the 20 plaintiff discovers, or in the exercise of reasonable diligence should have ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS – 4 1 discovered, the injury and its cause.” Id. The fact that a claimant is a minor does not 2 toll the limitations period. Id. at 534. Rather, any knowledge the minor’s parents 3 had is imputed to the minor because “parents have a legal duty to take action on the 4 child’s behalf.” Id. 5 Plantiffs’ complaint shows they were aware of the injury and its cause on the 6 same date as the procedure—December 27, 2016, and Plaintiffs do not dispute this. 7 See ECF No. 1-1 at 14–18; ECF No. 5. Plaintiffs make no argument supporting any 8 basis for tolling. Thus, the statute of limitations began to run on December 27, 2016. 9 Plaintiffs did not present their claim to the appropriate federal agency—here, the 10 Department of Health and Human Services—until August 21, 2019, which is more 11 than two years after Plaintiffs’ claim accrued. ECF No. 3-1. Because Plaintiff’s 12 claim is time-barred, there is no cognizable claim for relief against the United 13 States, its agencies, or its employees. 14 15 Accordingly, IT IS HEREBY ORDERED: 1. Defendants’ Motion and Memorandum for Dismissal, ECF No. 2, is GRANTED. 16 17 2. Plaintiffs’ claims are DISMISSED WITH PREJUDICE. 18 3. All parties shall bear their own costs and attorney fees. 19 4. All pending motions are DENIED AS MOOT. 20 5. All hearings and other deadlines are STRICKEN. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS – 5 1 2 3 4 5 6. The Clerk’s Office is directed to ENTER JUDGMENT and CLOSE this file. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 24th day of September 2021. 6 7 _________________________ SALVADOR MENDOZA, JR. United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS – 6
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