Butler v. U.S.

Full title: OPAL BUTLER, INDIVIDUALLY, AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF…

Court: United States District Court, E.D. Arkansas, Western Division

Date published: Jan 28, 2008

4:07CV00519 JMM (E.D. Ark. Jan. 28, 2008)

Opinion

4:07CV00519 JMM.

January 28, 2008

ORDER

JAMES MOODY, District Judge

Pending are Plaintiffs' motions to continue, to amend/correct the Complaint, and motion to extend time under Rule 56(f). The Government has responded to these motions. Also pending are the Government's motions for summary judgment and to stay discovery. Plaintiffs have responded to the motion to stay discovery.

Plaintiffs ask the Court for leave to amend their Complaint to add a claim for failure to provide informed consent. After review of the proposed Amended Complaint, it also appears that the Plaintiffs have added elements of their negligence claim from Count 2 of the original Complaint which the Court dismissed for lack of jurisdiction on September 14, 2007. As the Court explained in the Order of September 14, 2007, Plaintiffs merely presented a medical negligence claim to the Veterans Administration in June 2002. Plaintiffs did not include a claim for failure to provide informed consent or a claim for negligent hiring, training, staffing, assessing, evaluating or supervising employees. Therefore, the Court does not have jurisdiction of these claims because (1) they were not presented to the Veterans Administration as required by the Federal Torts Claim Act, 28 U.S.C. § 2675(a), and/or (2) the discretionary function applies because the conduct at issue involves elements of judgment or choice which the discretionary function exception was designed to shield. Thus, Court finds that amendment of the Complaint would be futile and Plaintiffs' Motion to Amend is DENIED. See Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 871 (8^th Cir. 2002).

As for Plaintiffs' Rule 56(f) Motion to Extend Time, the Court will grant Plaintiffs an additional sixty (60) days to conduct discovery and respond to the Government's Motion for Summary Judgment. Plaintiffs must file their response on or before April 7, 2008.

In conclusion, Plaintiffs' Motion to Amend (Docket # 15) is DENIED. Plaintiffs' Motion to Extend (Docket # 18) is GRANTED. The Government's Motion to Stay Discovery (Docket # 29) is DENIED. Plaintiffs' Motion to Continue (Docket # 14) is also GRANTED. An updated scheduling order will be provided forthwith.

IT IS SO ORDERED.