Opinion
Case No. 3:16-cv-00654-YY
04-05-2017
KYLE THOMPSON (Personal Representative of the Estate of Michael Eugene McGinness), Plaintiff, v. UNITED STATES OF AMERICA, Defendant(s).
FINDINGS AND RECOMMENDATION
YOU, Magistrate Judge :
INTRODUCTION
Acting as Personal Representative of the Estate of Michael Eugene McGinness ("McGinness"), plaintiff Kyle Thompson ("Thompson") has brought a claim against defendant United States of America ("Government") alleging wrongful death and seeking damages under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The Government has filed a Motion to Dismiss the Complaint pursuant to FRCP 12(b)(1) for lack of subject matter jurisdiction. (ECF #8). Specifically, the Government asserts that (1) the claim is unexhausted, and (2) it was filed outside the two-year statute of limitations. The court converted the portion of the Government's motion to dismiss on statute of limitations grounds to a motion for summary judgment under FRCP 12(d), and allowed limited discovery and additional briefing. (ECF #22). For the reasons that follow, the Government's motion should be DENIED in its entirety.
FACTS AND PROCEDURAL HISTORY
McGinness passed away on April 17, 2013. Compl. ¶ 6, ECF #1. Thompson alleges that McGinness's "cause of death was a duodenal ulcer due to nonsteroidal anti-inflammatory drugs (NSAIDS)." Id.
In April 2015, the Veterans Administration ("VA") received Standard Form 95 ("SF95") claim forms from Andrea Pike ("Pike"), Terry Davey ("Davey"), and Melissa Thompson. Decl. of Joseph M. Bartley ("Bartley Decl.") 4, ECF #13 ¶ 4. These forms are dated April 16, 2015, but there is a dispute whether the VA first received them on April 17, 2015 or April 20, 2015. See Bartley Decl. ¶ 4; R. Grant Cook Suppl. Decl. ("Cook Suppl. Decl.") 2, ECF #18. Thompson claims they were faxed on April 17, 2015, and has produced a facsimile report reflecting that seven pages (i.e., the cover sheet and three two-page claim forms) were faxed on that date at 4:32 pm. Cook Suppl. Decl. 2. The VA claims it did not receive the forms until April 20, 2015. Bartley Decl. ¶ 4. In support, the Government has produced a declaration by a paralegal, Joseph Bartley, who states that on April 20, 2015, the VA received three claim forms dated April 16, 2015. Id.
Each SF95 lists Pike, Davey, and Melissa Thompson's names and addresses as claimants, and the words "on behalf of Michael McGinness, deceased." Def.'s. Ex. 1, at 1-6, ECF #9-1. The forms also list the name and address of plaintiff's attorney's firm, "Lafky & Lafky, Attorneys at Law, 429 Court Street NE, Salem, OR 97301." Id. In the box provided for the basis of the claim, each form states: "Claimant, on behalf of decedent Michael McGinness, makes a wrongful death claim based on the negligence of VA doctors and medical staff who treated the decedent prior to his death, which occurred on April 17, 2013." Id. Each form alleges an identical cause of death and provides identical allegations related to the VA's purported negligence. Id. Melissa Thompson is listed as the witness for each form, including her own. Id. In the box provided for the claimant's signature, all three forms were initially signed "/s/ Melissa Thompson." Id. All three forms seek $2,000,000 in damages for wrongful death. Id.
On May 8, 2015, the VA sent a letter to R. Grant Cook ("Cook"), plaintiff's counsel. Def.'s. Ex. 2, ECF #9-2. The VA stated it had received the SF95s submitted by Pike, Davey, and Melissa Thompson, but indicated that the claims were not perfected and could not be investigated because they did not contain handwritten signatures. Decl. of Alison Richards ("Richards Decl.") ¶ 10, ECF #9. The VA asked Cook to have the forms signed, dated, and returned as soon as possible to prevent the statute of limitations from barring the claims. Id. On July 20, 2015, the VA received SF95 forms with Pike, Davey, and Melissa Thompson's respective handwritten signatures. Id. ¶¶ 11-12. The signatures were not dated. Id.
On August 3, 2015, Alison Richards ("Richards"), a VA staff attorney, sent a letter to Cook seeking a variety of information, including the relationship between the claimants and the decedent, the "claimant's legal authority to act as personal representative," and documentation establishing Cook's authority to act as legal representative. Id. ¶ 14; Pl.'s Ex. 1, at 1-2, ECF #10-2. Richards did not receive a response. Richards Decl. ¶ 14.
On August 19, 2015, Michael Hughes, Regional Counsel for the VA, sent another letter to Cook. Richards Decl. ¶ 15; Def.'s Ex. 4, at 1-2, ECF #9-4. Hughes stated that, under the Federal Tort Claims Act, a wrongful death claim had to be filed by a duly authorized agent or other legal representative, and asked for a copy of the court order appointing a personal representative of the estate. Def.'s Ex. 4, at 1. The letter advised Cook that lack of proof of appointment of a personal representative could affect the claimants' ability to establish jurisdiction in federal court. Id. The VA did not receive a response. Richards Decl. ¶ 15.
Richards sent another letter to Cook on November 18, 2015. Id.; Def.'s Ex. 5, at 1, ECF #9-5. Once again, the VA sought information regarding the claimants' relationship to the decedent, information regarding who had been appointed personal representative, proof of the personal representative's appointment, and proof that Cook was acting as the legal representative. Def.'s Ex. 5, at 1-2. The VA also requested an autopsy report and a "customary interview with the claimants in order to obtain a clear understanding of concerns, including a full evaluation of non-economic damages." Id. Richards did not receive a response. Richards Decl. ¶ 16.
On December 9, 2015, the VA received a facsimile from Cook. Richards Decl. ¶ 17. The facsimile contained copies of court documents appointing Thompson as the acting personal representative of McGinness's estate effective November 30, 2015. Def.'s Ex. 6, at 2, ECF #9-6. Cook claims that "at or about" December 9, 2015, he also sent the VA a facsimile establishing that he was Thompson's legal representative. Decl. of R. Grant Cook ("Cook Decl.") ¶ 7. It is unclear whether the VA received that facsimile.
In a letter dated January 8, 2016, the VA denied Pike, Davey, and Melissa Thompson's claims on the ground they were not filed until July 2015, "approximately two years and three months after [McGinness's] passing." Def.'s Ex. 7, at 1, ECF #9-7. The VA also noted that although Thompson had been appointed as the personal representative of McGinness's estate, the VA had not received an SF95 claim from Thompson or any information regarding the relationship of the other claimants to the decedent. Id. The VA further concluded that there was no negligent or wrongful act on the part of one of its employees acting within the scope of employment that caused McGinness harm. Id.
On March 25, 2016, Cook faxed the VA a letter seeking reconsideration of the January 8, 2016 denial letter. Richards Decl. ¶ 21; Def.'s Ex. 8, at 1, ECF #9-8. Cook requested reconsideration of only Pike and Davey's claims, and withdrew Melissa Thompson's claim. Def.'s Ex. 8, at 1, ECF #9-8. The VA responded with a letter stating that it would reconsider the claims. Cook Decl. ¶ 11; Pl.'s Ex. 3.
Thompson filed the complaint in the present case on April 15, 2016, because he was "[u]ncertain of whether the United States Department of Veterans Affairs would reconsider the claims of Ms. Andrea Pike, Ms. Terry Davey and Ms. Melissa Thompson as imputed onto plaintiff . . . ." Cook Decl. ¶ 12. The complaint seeks "noneconomic damages in the sum of $2,000,000." Compl. ¶ 10.
On December 23, 2016, the VA received an SF95 form from Thompson as Personal Representative of the Estate of Michael McGinness." ECF # 25, at 5. The form contains identical language to the other SF95 forms filed by Pike, Davey, and Melissa Thompson. Id. The VA denied the claim on February 28, 2017, because it was filed "greater than two years after [McGinness's] passing." ECF #26-1.
FINDINGS
I. Rule 12(b)(1) Motion to Dismiss—Jurisdiction/Exhaustion
A. Standard of Review
Pursuant to FRCP 12(b)(1), dismissal is appropriate when the court lacks subject matter jurisdiction over a claim. "[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a defendant challenges the plaintiff's factual allegations with proof outside the pleadings, "the plaintiff must support her jurisdictional allegations with 'competent proof' under the same evidentiary standard that governs in the summary judgment context." Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citation omitted) (quoting Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010)). "The plaintiff bears the burden of proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction has been met." Id. The district court may resolve disputed factual issues unless "the issue of subject matter jurisdiction is intertwined with an element of the merits of the plaintiff's claim." Id. at 1122 n.3.
B. Federal Tort Claims Act—Jurisdictional Requirements
"The jurisdiction of federal courts to entertain actions for damages against the United States is limited by the Federal Tort Claims Act ("FTCA")." Warren v. U.S. Dept. of Interior Bureau of Land Mgmt., 724 F.2d 776, 777 (9th Cir. 1984) (en banc). "The Federal Tort Claims Act waives the United States' sovereign immunity for actions in tort," permitting claimants to sue the government in district court. See 28 U.S.C. § 2675(a); Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995). But, importantly, the FTCA sets up an administrative process that a claimant must adhere to before a district court may hear the claim. 28 U.S.C. § 2675(a). 28 U.S.C. § 2675(a) prevents a district court from hearing a case "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." Id. A claimant must begin the administrative process by filing a claim with the appropriate agency no more than two years from the date the claim accrues. 28 U.S.C. § 2401(b). Given that the FTCA waives the government's sovereign immunity, this "waiver must be strictly construed in favor of the United States." Cadwalder, 45 F.3d at 300 (quoting Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992)).
The Government's motion begins by discussing extensive instructions—many stemming from the Code of Federal Regulations—suggesting that one's failure to perfectly adhere to these filing instructions will result in a jurisdictional bar. See Mot. to Dismiss 3, 4, 12, ECF #8. For example, the Code of Federal Regulations states that "[o]nly a duly authorized agent or legal representative may submit a claim on behalf of a decedent." Reply in Supp. of Mot. to Dismiss 3, ECF #11 (citing 28 C.F.R. § 14.2). The Ninth Circuit has found that the regulations at issue are not "jurisdictional prerequisites under section 2675(a)." Warren, 724 F.2d at 778 (en banc) (finding that regulations passed pursuant to 28 U.S.C. § 2672 are not jurisdictional requirements under 28 U.S.C. § 2675(a)).
However, while a claimant need not strictly comply with the Code of Federal Regulations's filing requirements to exhaust their administrative remedies, the Ninth Circuit has held that "the plain language of section 2675(a) requires 'the claimant' to 'first present the claim to the appropriate Federal agency.'" Cadwalder, 45 F.3d at 301 (quoting 28 U.S.C. § 2675(a)). "[T]he purpose of the FTCA's administrative claim procedure [is] 'to encourage administrative settlement of claims against the United States and thereby to prevent an unnecessary burdening of the courts." Id. at 302 (quoting Jerves, 966 F.2d at 520). Claimants must "give agencies sufficient notice to enable them to begin their own investigations." Warren, 724 F.2d at 779. Thus, "section 2675(a) requires the claimant or his legal representative to file (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Id. at 780.
C. Sufficiency of Written Statement
1. Only minimal notice is required.
The Ninth Circuit has held that only minimal notice is required for a written statement to be sufficient under section 2675(a). Avery v. United States, 680 F.2d 608, 610 (9th Cir. 1982). "Legislative history indicates that a skeletal claim form, containing only the bare elements of notice of accident and injury and a sum certain representing damages, suffices to overcome an argument that jurisdiction is lacking." Id. "[I]f it were interpreted to require more than minimal notice, there would be, inevitably, hearings on ancillary matters of fact whenever the agency rejected a claim as incomplete." Id. at 611. Thus, where a claimant "gives notice of the manner and general circumstances of injury and the harm suffered," section 2675(a) has been satisfied. Id.
The court primarily relies on Ninth Circuit precedent, given that the circuits have taken idiosyncratic approaches to the minimal notice question before the court. See Kanar v. United States, 118 F.3d 527, 529 (7th Cir. 1997) (discussing circuit split).
2. The written statement in this case contained minimal notice.
The Government argues that the claim forms are deficient for a number of reasons. Specifically, the forms "failed to identify who the individuals were that were seeking claims." Reply in Supp. of Mot. to Dismiss 6. "It is unknown whether the non-party claimants are a minor child, a spouse, or a parent." Id. "In addition, none of the claimants indicated whether they are acting on behalf of the estate, nor provided any authority to do so if they were, nor indicated whether they are acting on their own behalf as individuals." Id. "Each of these individuals would have different claims and damages available to them and each would be evaluated differently as a claimant." Id.
Contrary to the Government's contention, the claim forms provided the minimal notice required under section 2765(a). The pertinent portion of the claim forms reads as follows:
Decedent's death was caused by a duodenal ulcer, the result of excessive and prolonged non-steroidal anti-inflammatory use by decedent, as negligently prescribed by VA employee(s).Def.'s Ex. 1, at 1, 3, 5, ECF #9-1. The forms provide "notice of the manner and general circumstances of injury," i.e., they contain specific theories of negligence against the VA. See Avery, 680 F.2d at 611. They also provide notice of the "harm suffered," i.e., McGinness's death. Id.
Additionally, VA employee(s) failed to employ the appropriate medical diagnostics on the decedent, which caused the death of decedent.
Additionally, decedent was prematurely and negligently discharged from the hospital by VA medical staff. The actions by VA employees caused the death of the decedent.
Moreover, contrary to the Government's assertion, there is no ambiguity about who was making the claim. The forms repeatedly indicate that the negligence claim was being made "on behalf of decedent Michael McGinness":
| CLAIM FOR DAMAGE,INJURY, OR DEATH | INSTRUCTIONS: Please read carefully the instructions on the reverse side andsupply information requested on both sides of the form. Use additional sheet(s) ifnecessary. See reverse side for additional instructions. | FORM APPROVEDOMB NO.1105-0008 | ||
|---|---|---|---|---|
| 1. Submit To Appropriate Federal Agency:Department of Veterans Affairs810 Vermont Avenue NWWashington, DC 20420 | 2. Name, Address of claimant and claimant's personal representative, if any.(See Instructions on reverse.) (Number, street, city, State and Zip Code)Melissa Thompson c/o Lafky & Lafky17366 Wall Ln SE Attorneys at LawJefferson, OR 97352 429 Court Street NE(on behalf of Michael McGinness, deceased) Salem, OR 97301 | |||
| 3. TYPE OF EMPLOYMENT[ ] MILITARY [×] CIVILIAN | 4. DATE OF BIRTH[Redacted] | 5. MARITAL STATUSSingle | 6. DATE AND DAY OF ACCIDENTApril 17, 2013 | 7. TIME (A.M. or P.M.) |
| 8. Basis of Claim (State in detail the known facts and circumstances attending the damage, injury, or death, identifying persons and propertyinvolved, the place of occurrence and the cause thereof) (Use additional pages if necessary.)Claimant, on behalf of decedent Michael McGinness, makes a wrongful death claim based on the negligence of VA doctors and medicalstaff who treated the decedent prior to his death, which occurred on April 17, 2013.Decedent's death was caused by a duodenal ulcer, the result of excessive and prolonged non-steroidal anti-inflammatory use by decedent,as negligently prescribed by VA employee(s).Additionally, VA employee(s) failed to employ the appropriate medical diagnostics on the decedent, which caused the death of decedent.Additionally, decedent was prematurely and negligently discharged from the hospital by VA medical staff. The actions by VA employeescaused the death of the decedent. |
Melissa Thompson's form is no longer discussed because she withdrew her claim on March 25, 2016. (ECF #9-8).
Although the VA made repeated requests for information about who was acting as personal representative and the relationship of the individuals to the deceased, this information was not necessary to satisfy the minimal notice requirement. It appears the VA sought this information pursuant to 28 C.F.R. § 14.3—the rule that sets forth the requirements for who may file an administrative claim—specifically section (c), which provides that "a claim based on death may be presented by the executor or administrator of the decendent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable State law." However, failure to provide this information is not a jurisdictional bar. In Warren, 724 F.2d at 776, the Ninth Circuit held that compliance with another section of 28 C.F.R. § 14.3—a provision requiring evidence of the authority of a legal representative to present a claim on behalf of a claimant—is not a jurisdictional prerequisite. Id. at 778-80. Interpreting section 14.3 as jurisdictional would "impose upon claimants an added burden which would inevitably result in barring otherwise meritorious claims." Id. at 779.
Additionally, while the purpose of the FTCA's administrative claim procedure is to encourage administrative settlement of claims, information about the relationship that McGinness had with Pike and Davey was not essential to settling the claim in this case. If these individuals were beneficiaries of McGinness's estate, their share of the settlement proceeds would be later resolved by a probate judge based upon the loss each had suffered pursuant to ORS 30.040, which provides:
Except when all beneficiaries otherwise agree, if settlement, with or without action, is effected and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS 30.020(2)(d) shall be apportioned by the probate court to each beneficiary in accordance with the beneficiary's loss.Thus, while the relationship of these individuals to McGinness would be relevant to the portion of the settlement proceeds they would ultimately receive, it was not crucial to settling the administrative claim, which was asserted on behalf of the estate as a whole.
Finally, and perhaps most importantly, the VA ultimately denied the claims on the merits. See Def.'s Ex. 7, at 1 ("Our review concluded that there was no negligent or wrongful act on the part of an employee of the Department of Veterans Affairs (VA) acting within the scope of employment that caused your clients' compensable harm."). "By denying [the] claims on the merits, the [agency] demonstrated that they had sufficient notice to initiate investigation." Warren, 724 F.2d at 779. "The agency's actions are persuasive evidence that the jurisdictional requirement of minimal notice was satisfied." Id.
Although Thompson does not make this argument, this court considers it because it pertains to a jurisdictional issue. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (2013) ("federal courts are under a continuing duty to confirm their jurisdictional power and are 'obliged to inquire sua sponte whenever a doubt arises as to [its] existence....'").
For all of these reasons, the claim forms provided the minimal notice required under section 2765(a).
D. Relation Back
The Government next argues that Thompson's claim is unexhausted because he did not file a timely claim with the VA. See Reply in Supp. of Mot. to Dismiss 2-3; Resp. to Mot. to Dismiss 2-5, ECF #10. Contrary to the Government's contention, Thompson's failure to submit a timely SF95 is not a jurisdictional bar because his claim relates back to the claim forms that were filed by Pike and Davey.
1. Third-party claims may relate back.
In Avila v. Immigration and Naturalization Service, the Ninth Circuit explained the standard for determining whether a claim relates back. 731 F.2d 616, 619-20 (9th Cir. 1984). There, a father filed an SF95 on behalf of his mentally impaired son after the Immigration and Naturalization Service ("INS") erroneously deported the son to Mexico. Id. at 618. The form claimed mental distress damages on behalf of the son and monetary damages incurred by the father for expenses related to locating the son in Mexico and providing him with medical treatment after he was found. Id. The form was filed in the name of the son as the claimant but was signed by the father. Id. At various places on the form, the father used the term "claimant's son" in referring to the son. Id. The father later amended the form to add himself as a claimant so he could be reimbursed for his financial expenses. Id. The INS denied the father's claim on the basis it was submitted outside the statute of limitations. Id.
On appeal, the Ninth Circuit held that "notice to the opposing party of the existence and involvement of the new plaintiff is the critical element" in deciding whether an amendment relates back to the original claim. Id. at 620. The court further considers whether prejudice would accrue to the government from allowing the amendment to relate back. Id. The court allowed the father's claim to relate back, holding that "[t]he nature of [the father's] damages was such that the government would reasonably expect to occur from its wrongful deportation of a mentally impaired citizen." Id.
In contrast, in Johnson v. United States, the court held that a wife's lack of consortium claim did not relate back to her husband's original claim of negligence. 704 F.2d 1431, 1433 (9th Cir. 1983). Freddie Johnson ("Johnson") filed a claim against the government stemming from injuries he suffered in a car accident that rendered him a paraplegic. Id. Johnson filed an SF95, which identified Clara Johnson as his wife; however the form included no mention of her claim for loss of consortium. Id. at 1442. Clara Johnson also did not sign the form as a claimant. Id. The court held that she had failed to exhaust her claim. Id. "The primary goal of the procedures established by the FTCA is to facilitate satisfactory administrative settlements. Clara Johnson's failure to file a claim for loss of consortium precluded the possibility of any such settlement." Id.
The Ninth Circuit also found no relation back in Cadwalder for the same lack of notice discussed above. In conjunction with the Cadwalder's purchase of a ranch, West One Bank ("West One") assigned to the Cadwalders the legal right to pursue a claim against the Forest Service for damage to the ranch caused by a forest fire. 45 F.3d at 298. The Cadwalders filed a claim with the Forest Service within the statute of limitations, but the Forest Service denied their claim because they did not own the property at the time the damage occurred. Id. at 298. In District Court, the Cadwalder's moved to join West One, the real party in interest, which the court allowed, and the Government appealed.
The Ninth Circuit held that West One could not be substituted in as a party because the Cadwalders' claim to the Forest Service never included West One and the Cadwalders did not have legal authority to act on behalf of West One. Id. at 300. The court also noted that government had been unaware of the existence of West One as a claimant. Id. at 302. /// /// ///
2. Thompson's claim relates back.
Here, when the relevant factors discussed above are applied, Thompson's claim relates back to the SF95 forms filed by Pike and Davey. The VA has always been on notice of the wrongful death claim asserted in Thompson's complaint. See Avila, 731 F.2d at 620 ("notice to the opposing party of the existence and involvement of the new plaintiff is the critical element"). Thompson has filed this claim as the personal representative of McGinness's estate. Compl. 1. Similarly, the claim forms filed by Pike and Davey were not filed in their individual capacities but rather "on behalf of Michael McGinness, deceased." Def.'s Ex. 1, at 1, 3, 5. There is no difference between their claims and Thompson's claim—all were filed "on behalf of Michael McGinness, deceased." For this reason as well, no prejudice would accrue to the Government by allowing Thompson's claim to relate back. See Avila, 731 F.2d at 620. The claim has remained the same, and likewise any investigation conducted by the VA would be the same.
This case is distinguishable from those cases in which the Ninth Circuit has held that claims do not relate back. In Johnson, the wife's claim of loss of consortium was distinguishable from her husband's claim of negligence. 704 F.2d at 1442. Here, the claims filed by Pike and Davey have consistently been on behalf of McGinness's estate for his wrongful death due to the VA's purported negligence. See Def.'s Ex. 1, at 1, 3, 5; Compl. 1. In Cadwalder, the original claimant and new claimant were completely different legal entities. 45 F.3d at 301. Here, the original claimant and the new claimant are both the same—McGinness's estate.
Finally, while the Government implies that the procedure employed in this case was somewhat haphazard and sloppy, it appears that Thompson and the original claimants had every reason to believe what they were doing was authorized under Oregon law. Under Oregon law, as personal representative, Thompson has authority to ratify and accept acts that were done by others on behalf of the estate, including the claims filed by the original claimants in this case:
The duties and powers of a personal representative commence upon the issuance of his letters. The powers of a personal representative relate back in time to give his acts occurring prior to appointment the same effect as those occurring thereafter. A personal representative may ratify and accept acts on behalf of the estate done by others where those acts would have been proper for a personal representative.ORS 114.255. "The evident purpose of [ORS 114.255]...is to facilitate and legitimate beneficial acts done on behalf of the estate which by their nature are necessary or expedient to do in the interim between the decedent's death and the appointment of a personal representative." Rennie v. Pozzi, 294 Or. 334, 340, 656 P.2d 934, 938 (1982).
Here, Pike and Davey filed SF95s on behalf of McGinness's estate during the interim period between McGinness's death and the appointment of Thompson as personal representative. In fact, Cook states in a declaration that "it was [his] intention that the claims of Ms. Andrea Pike [and] Ms. Terry Davey[,]...be imputed to Plaintiff and personal representative, Kyle Thompson." Cook Decl. ¶ 8. The filing of the original SF95s, which was "necessary" and "done on behalf of the estate," was legitimate and authorized under Oregon law.
For the reasons discussed above, the court should find that Thompson's claim relates back.
E. Sum Certain
The Government also argues that the original claim forms failed to present "a sum certain." See Warren, 724 F.2d at 779. More specifically, the Government contends that "[t]he VA could not determine whether these three claimants were seeking a total of $6,000,000 or $2,000,000 . . . ." Reply in Supp. of Mot. to Dismiss 6-7.
To the contrary, when the claim forms are viewed together, they indicate identical, albeit redundant, demands on behalf of the estate of Michael McGinness for $2,000,000. All of the forms contain exactly the same language, including the cause of injury and the harm suffered, i.e., McGinness's death. The Government is mistaken in its confusion about whether the original claimants filed individual claims on behalf of themselves. They did not file individual claims, but rather they all filed "on behalf of Michael McGinness, deceased," i.e., the estate. While multiple individuals can make separate claims for individual damages, an estate is but a single entity that can only make one claim, in this case a claim for wrongful death for $2,000,000.
Alternatively, even if the SF95s in this case could be viewed as alleging a range of damages from $2,000,000 to $6,000,000, it would not run afoul of the sum certain requirement. "This 'well-established rule,'..., serves an important purpose: 'to apprise the government of its possible liability and to provide the government with notice 'sufficient to allow it to investigate the alleged negligent episode to determine if settlement would be in the best interests of all.'" Ortiz-Lebron v. United States, No.10-1513 (SEC), 2012 WL 6552782, at *7 (D.P.R. Dec. 14, 2012) (citations omitted). Here, despite claiming that there was no sum certain, the VA was able to investigate the claim and conclude there was "no negligence or wrongful act on the part of an employee of the" VA. Def.'s Ex. 7, at 1.
Finally, the $6,000,000 figure is legally sufficient in that it was a ceiling on the damages that the claimants were seeking. Courts are split on whether the sum certain requirement is met where a claimant alleged only a floor amount. See, e.g., Bradley v. U.S. by Veterans Admin., 951 F.2d 268, 271 (10th Cir. 1991) (declining to hold that plaintiff's valuation of his claim as "in excess of $100,000.00" was sufficient to satisfy the sum certain requirement); Martinez v. United States, 728 F.2d 694, 697 (5th Cir. 1984) (presentation of an administrative claim "in excess of $100,000" is a reasonable compliance with the "sum certain" requirement). However, a cap or ceiling on the amount of damages asserted is certainly sufficient to apprise the government of its potential liability.
For all of the reasons set forth above, the sum certain requirement has been met in this case. II. Motion for Summary Judgment—Statute of Limitations
The Government contends that this court lacks subject matter jurisdiction because the claim was not submitted to the VA within two years after it accrued, as required by 28 U.S.C. §2401(b). Mot. to Dismiss, 2. The Government asserts this statute of limitations argument under Rule 12(b)(1) as a question of subject matter jurisdiction. Id.
On December 10, 2016, the court held a short telephone hearing on this specific issue, and the Government confirmed that it was making its motion under Rule 12(b)(1) and not Rule 12(b)(6). --------
However, the FTCA's two-year statute of limitations is not jurisdictional, as the Court recently held in United States v. Kwai Fun Wong, 575 U.S. ___, 135 S. Ct. 1625, 1633 (2015):
Section 2401(b) is not a jurisdictional requirement. The time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.Thus, it is not properly the subject of a Rule 12(b)(1) motion. Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 n.2 (9th Cir. 1995) (because the question whether Supermail's claim is barred by the statute of limitations is not a jurisdictional question, it was improperly raised in a Rule 12(b)(1) motion to dismiss for lack of jurisdiction).
After providing notice to the parties, this court converted the Government's Rule 12(b)(1) motion into a motion for summary judgment. See Ross v. United States, No. 2:15-CV-01090-BJR, 2016 WL 6037973, at *2 (W.D. Wash. Oct. 14, 2016) ("Because the time limit prescribed by § 2401(b) is nonjurisdictional, and because the Government has supported its motion with documents outside the pleadings, the Court will analyze the Government's motion to dismiss as a motion for summary judgment."); Oskar v. United States, No. 4:14-CV-04144-KES, 2016 WL 782025, at *4 (D.S.D. Feb. 26, 2016) (construing Government's motion to dismiss under Rule 12(b)(1) for failing to comply with the § 2401(b) time limit as a motion for summary judgment).
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FRCP 56(a). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court "draws all justifiable inferences in favor of the non-moving party." Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Here, McGinness passed away on April 17, 2013. The VA claims it did not receive the forms until April 20, 2015. Bartley Decl. ¶ 4. In support, the Government has produced a declaration by a paralegal, Joseph Bartley, who states that on April 20, 2015, the VA received three administrative claim forms dated April 16, 2015. Id. However, Thompson claims the forms were faxed to the VA on April 17, 2015, and has produced a facsimile report reflecting that seven pages (i.e., the cover sheet and three two-page claim forms) were faxed on that date at 4:32 pm. Cook Suppl. Decl. 2. When the evidence is viewed in the light most favorable to the plaintiff, there is a genuine issue of material fact as to whether the claim forms were submitted within the two-year statute of limitation. Therefore, the Government's motion for summary judgment should be denied.
RECOMMENDATION
The court should DENY the Government's motion to dismiss and motion for summary judgment (ECF #8).
SCHEDULING ORDER
These Findings and Recommendation will be referred to a district judge. Objections, if any, are due Wednesday, April 19, 2017. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
NOTICE
This Findings and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED April 5, 2017.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge