Opinion
Civil Action No. 3:99-CV-1989-M.
March 31, 2003
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The Court has under consideration the Findings and Recommendation of United States Magistrate Judge Irma Carrillo Ramirez on the Motion to Dismiss Defendant United States of America, filed April 26, 2002 (#145); the Motion to Dismiss Defendant Federal Bureau of Investigation, filed May 14, 2002 (#148); Defendant Edward Kraemer's Motion to Dismiss, filed May 15, 2002 (#154); and Defendants Richard A. Kamp, Pamela L. Dempsey, and Jack Hinton's Motion to Dismiss, filed May 15, 2002 (#152). Objections were filed, and the District Court has made a de novo review of those portions of the proposed Findings and Recommendation to which objection was made. The objections are overruled, and the Court accepts the Findings and Recommendation of the United States Magistrate Judge. However, the Court wishes to elaborate further on the issue of whether as to Defendants Kraemer, Hinton, Dempsey, and Kamp (the "Individual Defendants") the limitations period is tolled by Texas's fraudulent concealment doctrine.
Plaintiffs object that their claims do not accrue "under federal law[,] in a Bivens action[,] until the plaintiff acquires possession of two critical facts: (1) an injury has occurred; and (2) the identity of the person who inflicted the injury." Obj. at 9 (citing Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980)). Plaintiffs allege that because the identities of the Individual Defendants were "concealed" until November 2, 2002, the statute of limitations was tolled by Texas's fraudulent concealment doctrine. Id.
Two elements are necessary to show fraudulent concealment: (a) actual knowledge by the defendant that a wrong has occurred, and (2) a fixed purpose to conceal the facts necessary for the plaintiff to know that the plaintiff has a cause of action. See Heller Healthcare Finance, Inc. v. Boyes, 2002 WL 1558340, at *5 (N.D.Tex. July 15, 2002) (Fitzwater, J.) (citing Santanna Natural Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 890 (Tex.App.-Austin 1997, pet. denied)); Prieto v. John Hancock Mut. Life Ins. Co., 132 F. Supp.2d 506, 515-16 (N.D.Tex. Jan. 12, 2001) (Lindsay, J.) (citing Santanna, 954 S.W.2d 885). With regard to fraudulent concealment of a party's identity, the general rule in Texas was stated in the early case of Griffith v. Shannon, 284 S.W. 598, 600 (Tex.App.-Austin 1926, writ dism'd): "Fraud and concealment, in order to prevent the running of the statute, must relate to concealment of the cause of action and not to the concealment of the parties." Texas courts have consistently followed this rule. See also Vaughn v. Sturm-Hughes, 937 S.W.2d 106, 110 (Tex.App. — Ft. Worth 1997, writ denied) (finding that where the cause of action was not concealed, the alleged failure to disclose the identity of the driver at the time of the accident did not toll limitations); Burns v. Thomas, 790 S.W.2d 1, 2 (Tex.App.-Amarillo 1988) ("reiterat[ing] that fraud and concealment, in order to prevent the running of the statute, must relate to the concealment of the cause of action and not to the concealment of the parties."), rev'd on other grounds, 786 S.W.2d 266, 267 (Tex. 1990); Otis v. Scientific Atlanta, Inc., 612.W.2d 665, 666 (Tex.App. — Dallas 1981, writ ref' d.n.r.e) (finding no authority for the proposition that in Texas, concealment of one's identity tolls the running of the statute of limitations on a cause of action against that person).
However, courts have recognized an exception to the general rule where a party affirmatively conceals the responsible party's identity, if a duty to disclose exists. Barnhill v. Integrated Health Services, Inc., 21 S.W.3d 321 (Tex.App.-San Antonio 1999, no writ) (citing Cherry v. Victoria Equipment Supply, Inc., 645 S.W.2d 781, 782 (Tex. 1983)); Dougherty v. Gifford, 826 S.W.2d 668, 674 (Tex.App. — Texarkana 1992, no writ) (citing Cherry, 645 S.W.2d 781). In Barnhill, an employee sued his employer for negligence arising out of a workplace injury. 21 S.W.3d at 323. Texas law required the employer to post a notice in the workplace regarding the existence of workers' compensation insurance coverage and to identify itself in the notice. Id. at 324. The employer's notice misidentified the true employer. Id. Finding that Texas law imposed a duty to disclose the employer's identity, and that a genuine issue of material fact existed regarding whether the employer fraudulently concealed its identity to escape suit, the court reversed the trial court's entry of summary judgment for the employer. Id.
In Dougherty, a patient was misdiagnosed with cancer and underwent chemotherapy and radiation treatments. 826 S.W.2d at 672. The jury found negligence as well as fraudulent concealment of the negligent pathologists' identity, and the defendant pathologists appealed. Id. In considering the defendants' challenge to the sufficiency of the evidence supporting fraudulent concealment, the Dougherty court expressly relied upon the Texas Supreme Court's decision in Cherry, 645 S.W.2d 781. In Cherry, the plaintiffs were injured when a gas holding tank on the well they were cleaning ignited. Id. At 782. During his deposition, which was taken prior to the expiration of limitations, a fifty-percent co-owner of an equipment and supply company repeatedly disavowed any involvement by his company with the well. Id. After the statute of limitations expired, the plaintiffs discovered that the company did in fact do work on the well in question. Id. The Texas Supreme Court held that the deposition testimony raised an issue of fact as to fraudulent concealment, which defeated the company's motion for summary judgment based upon limitations. Id.
The Dougherty court interpreted Cherry as "standing for the principle that the nature of the parties' relationship controls the duty of disclosure. Thus, a party responding under oath is under a higher duty to disclose than someone in a negotiation process." 826 S.W.2d at 674. The Dougherty court found that a higher duty to disclose likewise existed in a physician/patient relationship. Id. Finding that the defendant pathologists had a physician/patient relationship with the plaintiff patient, and that the pathologists' silence, in the face of a duty to disclose, was an act of concealment, the court held that the jury finding of fraudulent concealment was supported by legally and factually sufficient evidence. Id. at 674-676. Compare Vaughn, 937 S.W.2d at 110 (finding no evidence of a special relationship between plaintiff and defendant's insurer that would justify imposing a duty on the insurer to disclose the identity of its insured).
The foregoing cases demonstrate that absent concealment of a plaintiff's cause of action, concealment of the responsible party's identity does not toll limitations unless a party conceals the responsible party's identity where a duty to disclose is imposed by law or by virtue of a special relationship. In this case, at least as of the date of their acquittals on October 3, 1997, Plaintiffs knew they had a Bivens claims for the unlawful withholding of Brady material. They timely asserted these claims, which are the same claims they now assert against the Individual Defendants. (Third Am. Compl. At 3, 5, 7-9, 33, 52, 65-66, 69, 71, 74.) Thus, it is indisputable there was no concealment of the cause of action. Plaintiffs have not alleged that any party affirmatively acted to conceal the identity of the Individual Defendants. Plaintiffs have also not alleged that any party owed them a duty to disclose their identities; nor does it appear that the law or any special relationship imposes such a duty in this case. Accordingly, the fraudulent concealment doctrine does not save Plaintiffs' untimely claims.
In their Objections, Plaintiffs cite the Fifth Circuit opinion in Lavellee to argue that, "[u]ntil the plaintiff is in possession of the `critical facts that he has been hurt and who has inflicted the injury,' the statute of limitations does not commence to run." Lavellee, 611 F.2d 1131. However, Lavellee was a discovery rule case, not a fraudulent concealment case. Indeed, for that proposition, Lavellee quoted the Supreme Court's opinion in another discovery rule case. Id. (quoting United States v. Kubrick, 444 U.S. 111, 122 (1979)). Recently, the Supreme Court clarified that it was discussing the discovery rule in Kubrick, not the fraudulent concealment doctrine. See TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001) ("The only other cases in which we have recognized a prevailing discovery rule . . . were decided in two contexts, latent disease and medical malpractice, `where the cry for [such] rule is loudest,'" (citing Kubrick, 444 U.S. at 122)). "Unlike the discovery rule, which determines when the cause of action accrues for purposes of determining when limitations begin to run, the doctrine of fraudulent concealment tolls or suspends the running of the limitations after it has begun because the defendant concealed from the plaintiff facts necessary for the plaintiff to know that he or she had a cause of action." Achee v. Port Drum Co., 197 F. Supp.2d 723, 737 (E.D.Tex. 2002). While courts sometimes confuse the two rules, under the standard for fraudulent concealment, Plaintiffs' knowledge of their cause of action was enough to start the running of the statute of limitations, which would not be tolled absent affirmative acts to conceal the identities of the Individual Defendants, and a duty to disclose. Plaintiffs' reliance on Lavellee is thus misplaced.
The Fifth Circuit's opinion attributes the quote to Kubrick, 444 U.S. at 121 n. 8. Lavellee, 611 F.2d at 1131. The exact language quoted actually appears in the main text on page 122.
The Achee court remarked that conflating the two doctrines is common, and "that courts often confuse the application of fraudulent concealment with that of the discovery rule[.]" Achee, 197 F. Supp.2d at 737.
Despite their lack of knowledge of the identities of the Individual Defendants, Plaintiffs were indisputably aware of their cause of action by October 3, 1997. Because Plaintiffs do not allege any affirmative acts to conceal the identities of the Individual Defendants or a duty to disclose imposed by law or a special relationship, the doctrine of fraudulent concealment does not toll limitations.
The Motions to Dismiss Defendants United States of America, Federal Bureau of Investigation, Edward Kraemer, Richard A. Kamp, Pamela L. Dempsey, and Jack Hinton are GRANTED.