Opinion
2:22-cv-1004-JAD-DJA
12-07-2022
Deandre Michael Howard, Plaintiff v. United States of America; Jimmy McKinny; Mark Neira, Defendants
ORDER GRANTING MOTION TO DISMISS, DENYING MOTION FOR LEAVE TO AMEND, AND GRANTING MOTION TO STAY DISCOVERY
[ECF NOS. 8, 11, 13]
JENNIFER A. DORSEY, U.S. DISTRICT JUDGE.
This Federal Tort Claims Act (FTCA) case arises out of a June 29, 2020, car accident between Plaintiff Deandre Michael Howard and Federal Bureau of Investigation (FBI) employee Mark Neira. The government moves to dismiss this action as time-barred because Howard filed it more than six months after the agency denied his claim via letter on June 17, 2021, rendering it forever time-barred under 28 U.S.C. 2401. Howard contends that the FBI's failure to include statutorily required notice-of-the-deadline language in that letter renders it a non-final decision incapable of triggering the six-month deadline, and he asks for leave to file an amended complaint to add this theory.
ECF No. 8.
ECF No. 11.
The defendants have established that Howard, by the express allegations in this complaint, has pled himself out of a timely FTCA claim. 28 U.S.C. § 2401(b) states that “[a] tort claim against the United States shall be forever barred unless it is . . . begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” Howard alleges in paragraph 5 of his complaint that the government “denied [his] claim on June 17, 2021, and thus deemed [sic] a final denial of the claim under 28 U.S.C. § 2675(a).” Because his June 24, 2022, inception of this case was far outside this six-month deadline, his claims, as pled, are plainly time-barred. So I grant the motion to dismiss them.
ECF No. 1 at 2 (cleaned up).
But Howard contends in his countermotion for leave to file an amended complaint that the June 17, 2021, letter wasn't a final denial, and he asks for permission to amend his complaint to show that. I deny Howard's motion because his failure to attach a proposed amended complaint as required by this district's local rule 15-1(a) leaves me unable to determine whether Howard can overcome this time bar with new facts. But I do so without prejudice to his ability to file a new motion to amend by December 19, 2022, that explains how and why new allegations can do so and attaches the required proposed draft. And because the question of whether this case will ultimately move forward or be forever time-barred remains unresolved, I grant the defendants' motion to stay discovery. Discovery is stayed unless and until Howard files a proper motion for-and this court grants-leave to amend.
ECF No. 11.
ECF No. 13.
IT IS THEREFORE ORDERED that the motion to dismiss [ECF No. 8] is GRANTED. This case is dismissed without prejudice.
IT IS FURTHER ORDERED that the plaintiff's motion for leave to amend [ECF No. 11] is DENIED without prejudice to his ability to file a new, proper motion for leave to amend by December 19, 2022. If the plaintiff fails to do so, this court will deem that failure his concession that he cannot plead facts to overcome the lateness of his claims and will enter another order dismissing this case with prejudice as time-barred.
Finally, IT IS FURTHER ORDERED that the defendants' motion to stay discovery [ECF No. 13] is GRANTED. Discovery is stayed unless and until Howard files a proper motion for-and this court grants-leave to amend.