Opinion
Case No. 19-24743-Civ-COOKE/GOODMAN
2021-03-17
Mary Conyers REEVES, individually as the surviving spouse, and as the Personal Representative of the Estate of Cornel Alexander Reeves, Plaintiff, v. UNITED STATES of America, Defendant.
Mariano Ariel Corcilli, The Corcilli Law Firm, Roy D. Wasson, Courthouse Plaza, Miami, FL, for Plaintiff. Wendy A. Jacobus, Zakarij Neil Laux, United States Attorney's Office, Miami, FL, for Defendant.
Mariano Ariel Corcilli, The Corcilli Law Firm, Roy D. Wasson, Courthouse Plaza, Miami, FL, for Plaintiff.
Wendy A. Jacobus, Zakarij Neil Laux, United States Attorney's Office, Miami, FL, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS OR, ALTERNATIVELY, FOR JUDGMENT ON THE PLEADINGS
MARCIA G. COOKE, United States District Judge THIS MATTER is before the Court upon Defendant United States of America's Motion to Dismiss or, Alternatively, for Judgment on the Pleadings (the "Motion") (ECF No. 22), filed June 23, 2020. Plaintiff Mary Conyers Reeves, individually as the surviving spouse, and as the Personal Representative of the Estate of Cornel Alexander Reeves ("Plaintiff") filed her response in opposition to the Motion on July 13, 2020. ECF No. 25. And Defendant United States of America ("Defendant") filed its reply brief in support of the Motion on July 20, 2020. ECF No. 27. The Court having reviewed the Motion, the briefing, the record, and the relevant legal authorities finds that the Motion should be granted.
Background
This action stems from the tragic death of Cornel Reeves – a disabled veteran. Mr. Reeves suffered from, inter alia, peripheral neuropathy, which resulted in being confined to a wheelchair. ECF No. 1, Compl. at ¶ 14. Mr. Reeves was provided a wheelchair by the Veterans Administration (the "VA"). Id. at ¶ 15. Mr. Reeves, due to his disabilities, qualified for the VA's Home Improvements and Structural Alterations ("HISA") grant. Id. at ¶ 16. HISA is a grant which provides medically necessary improvements and structural alterations to Veterans/Servicemembers’ primary residence for the following purposes: (1) allowing entrance to or exit from their homes, (2) use of essential lavatory and sanitary facilities (e.g., roll in showers), (3) allowing accessibility to kitchen or bathroom sinks or counters (e.g., lowering counters/sinks), (4) improving entrance paths or driveways in immediate area of the home to facilitate access to the home through construction of permanent ramping, and (5) improving plumbing or electrical systems made necessary due to installation of home medical equipment. Id. at ¶ 19. HISA provides eligible beneficiaries monetary benefits for improvements and structural alterations to their homes when such improvements and structural alterations are necessary for the continuation of the provision of home health treatment of the beneficiary's disability. Id. at ¶ 20.
On or about January 2013, the VA installed wheelchair ramps (hereinafter the "Ramps" or "Ramp") in the front door and back door of Mr. Reeves’ home in order to allow Mr. Reeves to enter and exit his home. Id. at ¶ 21. The Ramps were installed in connection with the HISA grant. Id. at ¶ 22. Unfortunately, the Ramp the VA installed in the back door: a. Pointed directly at Mr. Reeves’ pool; and b. Was approximately four (4) feet away from the pool. Id. at ¶ 22. On multiple occasions, the Reeves informed the VA that the back door Ramp was too close to the pool, and that if safety railings were not installed to prevent Mr. Reeves’ wheelchair from rolling into the pool, Mr. Reeves would be in danger of rolling into the pool. Id. at ¶ 27. In order to prevent himself from rolling down the Ramp and into the pool, Mr. Reeves requested, on two different occasions, that the VA install safety railings. Id. at ¶ 28. On or about September 24, 2014, Dr. Mazzarella, Mr. Reeves’ primary care provider at the VA hospital, contacted the VA to request that safety railings be installed for "aqua therapy." Id. at ¶ 29. Dr. Mazzarella's request or safety railings to be installed for "aqua therapy" was incorrect as Mr. Reeves needed safety railings to prevent him from rolling/falling into the pool. Id. at ¶ 30. On or about November 18, 2014, the request for safety railings was closed by the VA as it was "not within the scope of HISA." Id. at ¶ 31. On or about May 21, 2015, Dr. Mazzarella requested the safety railings for the second time. Id. at ¶ 33. On or about May 28, 2015, a VA inspector by the name of Vicki Ribera (hereinafter "VA Inspector Ribera") acknowledged the request. Id. at ¶ 34.
On or about August 4, 2015, VA Inspector Ribera went to the Plaintiff's home and inspected the Ramp in question. Id. at ¶ 35. VA Inspector Ribera stated in her inspection that there was "no problem" with the railings. Id. VA Inspector Ribera's statement that there was "no problem" with the safety railings was demonstrably incorrect as there were no safety railings on the Ramp. Id. at ¶ 36.
On or about March 26, 2016, as a result of safety railings not being installed in order to prevent Mr. Reeves from rolling into the pool, Mr. Reeves exited the backdoor in his wheelchair, went down the declining Ramp which was provided for by the VA, and rolled into the pool. Id. at ¶ 37. Upon rolling into the pool, Mr. Reeves was unable to safely exit the pool. Id. at ¶ 38. Later that day, Mrs. Reeves found Mr. Reeves and his wheelchair floating in the pool; Mr. Reeves was unconscious and unresponsive. Id. at ¶ 39. Mr. Reeves remained unresponsive and unconscious for four (4) weeks. Id. at ¶ 40. Mr. Reeves died on April 23, 2016, as a result of the anoxic brain injury that he suffered due to drowning on March 26, 2016. Id. at ¶ 41.
Based upon the above allegations, Plaintiff asserts a claim for wrongful death based upon Defendant's alleged failure to: a) remedy a dangerous condition; b) install safety railings for the Ramp; c) conduct a reasonable inspection; and d) provide a ramp that would allow Mr. Reeves to safely egress into and out of his home.
Procedural History
This case has a nuanced procedural background. Plaintiff filed a Complaint raising the same claims and allegations as those presented here on June 26, 2019 ("Reeves I"). That case was assigned Case No. 19-cv-22674-Williams/Torres and was pending before Judge Williams. That action, however, was dismissed without prejudice on November 4, 2019 due to the Parties’ failure to file a joint scheduling report. See Case No. 19-cv-22674-Williams/Torres, ECF No. 14. On November 12, 2019, Plaintiff filed an unopposed motion to re-open that case; however, Judge Williams denied that motion on November 14, 2019. Id. , ECF Nos. 16 and 17. Then, on November 15, 2019, Plaintiff filed this action (which is identical to Reeves I) and this new action was assigned to the undersigned. ECF No. 1. For purposes of clarity, this Order shall refer to the present action as Reeves II.
Legal Standard
A. Motion to Dismiss Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint "contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While this standard "does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The standard requires the complaint to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). To provide the "grounds" for "entitle[ment] to relief," the complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When considering a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Duty Free Ams., Inc. v. Estee Lauder Cos. , 797 F. 3d 1248, 1262 (11th Cir. 2015) (citing Murphy v. F.D.I.C. , 208 F.3d 959, 962 (11th Cir. 2000) ). However, this tenet is inapplicable to legal conclusions. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
B. Motion for Judgment on the Pleadings Standard.
In ConSeal Int'l Inc. v. Neogen Corp. , 19-CV-61242, 2020 WL 4736203, at *2–3 (S.D. Fla. Aug. 14, 2020), Judge Bloom issued an order that thoroughly and succinctly laid out the legal standard for a motion for judgment on the pleadings. Following Judge Bloom's lead, the applicable legal standard here is as follows:
Federal Rule of Civil Procedure 12(c) states that: "After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law." Cannon v. City of W. Palm Beach , 250 F.3d 1299, 1301 (11th Cir. 2001) ; see also Perez v. Wells Fargo N.A. , 774 F.3d 1329, 1335 (11th Cir. 2014) ; Palmer & Cay, Inc. v. Marsh & McLennan Cos. , 404 F.3d 1297, 1303 (11th Cir. 2005) ; Riccard v. Prudential Ins. Co. , 307 F.3d 1277, 1291 (11th Cir. 2002). "A motion for judgment on the pleadings admits the plaintiff's factual allegations and impels the district court to reach a legal conclusion based on those facts." Gachette v. Axis Surplus Ins. Co. , No. 19-cv-23680, 2020 WL 2850587, at *1 (S.D. Fla. Apr. 1, 2020) (quoting Dozier v. Prof'l Found. for Heath [Health] Care, Inc. , 944 F.2d 814, 816 (11th Cir. 1991) ).
"Judgment on the pleadings is appropriate only when a party ‘fails to offer any pertinent defense,’ not when one defense out of many is challenged." Pete Vicari Gen. Contractor LLC v. Ohio Cas. Ins. Co. , No. 17-23733-CIV, 2018 WL 6308695, at *1 (S.D. Fla. Sept. 27, 2018) (quoting Vann v. Inst. of Nuclear Power Operations, Inc. , No. 1:09-cv-1169-CC-LTW, 2010 WL 11601718, at *2 (N.D. Ga. July 15, 2010) ). Indeed, "federal courts are unwilling to grant a judgment under Rule 12(c) unless it is clear that the merits of the controversy can be fairly and fully decided in this summary manner." Id. (internal quotation marks omitted). However, "[i]f it is clear from the pleadings that the plaintiff is not entitled to relief under any set of facts consistent with the complaint, the district court should dismiss the complaint." King v. Akima Glob. Servs., LLC , 775 F. App'x 617, 620 (11th Cir. 2019) (citing Horsley v. Rivera , 292 F.3d 695, 700 (11th Cir. 2002) ); cf.
United States v. Khan , No. 3:17-cv-965-J-PDB, 2018 WL 6308678, at *1 (M.D. Fla. Sept. 26, 2018) ("A court must deny a motion for judgment on the pleadings if a ‘comparison of the averments in the competing pleadings reveals a material dispute of fact.’ " (quoting Perez , 774 F.3d at 1335 )).
In rendering judgment, a court may consider the substance of the pleadings and any judicially noticed facts. Cunningham v. Dist. Attorney's Office for Escambia Cty. , 592 F.3d 1237, 1255 (11th Cir. 2010) ; see also Melendez v. Bank of Am. Corp. , No. 17-cv-60542, 2018 WL 1092546, at *1 (S.D. Fla. Feb. 2, 2018) ("The Court may consider all of the pleadings, including the complaint, answer, counterclaim, and answer to the counterclaim." (citing Fla. Evergreen Foliage v. E.I. DuPont de Nemours & Co. , 165 F. Supp. 2d 1345, 1350 (S.D. Fla. 2001) )). "Pleadings include the complaint and answer. Written instruments that are exhibits to a pleading are considered a part of the pleading." Pyure Brands, LLC v. Nascent Health Sci. LLC , No. 1:18-cv-23357, 2019 WL 7945226, at *2 (S.D. Fla. Mar. 4, 2019) (citing Fed. R. Civ. P. 7(a) ; Fed. R. Civ. P. 10(c) ). "A court may consider documents attached to the complaint or incorporated by reference without converting the motion into a motion for summary judgment if the documents are: (1) central to the complaint, and (2) the documents’ authenticity is not in dispute." Eisenberg v. City of Miami Beach , 54 F. Supp. 3d 1312, 1319 (S.D. Fla. 2014) (citing Day v. Taylor , 400 F.3d 1272, 1275-76 (11th Cir. 2005) ). "In particular, the Court may ‘take judicial notice of and consider documents which are public records.’ " Id. (citing Day , 400 F.3d at 1275-76 ). Moreover, where a movant relies on or sets forth allegations [that] "were not presented or contained in the pleadings, including new exhibits, the Court cannot consider them without converting the motion into a motion for summary judgment." Bernath v. Seavey , No. 2:15-cv-358-FtM-99CM, 2015 WL 13805064, at *1 (M.D. Fla. Sept. 29, 2015).
"A motion for judgment on the pleadings is governed by the same standard as a Rule 12(b)(6) motion to dismiss." Guarino v. Wyeth LLC , 823 F. Supp. 2d 1289, 1291 (M.D. Fla. 2011). "In determining whether a party is entitled to judgment on the pleadings, [courts] Perez , 774 F.3d at 1335 (citing Hawthorne v. Mac Adjustment, Inc. , 140 F.3d 1367, 1370 (11th Cir. 1998) ). A complaint must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 [127 S.Ct. 1955, 167 L.Ed.2d 929] (2007) ; see Ashcroft v. Iqbal , 556 U.S. 662, 678 [129 S.Ct. 1937, 173 L.Ed.2d 868] (2009) (explaining that Rule 8(a)(2) "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). Nor can a complaint rest on " ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 557 ). "To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570 ).
Neogen Corp. , 2020 WL 4736203, at *2–3.
Discussion
In its Motion, Defendant asserts two interrelated arguments. More specifically, Defendant argues that Plaintiff's Complaint is barred by the Federal Tort Claims Act's statute of limitations, and Plaintiff's previously-dismissed, timely-filed suit does not change the fact that Plaintiff's Complaint in this action is untimely. In response, Plaintiff contends that Defendant waived its statute of limitations defense; however, the Court finds Plaintiff's arguments to be unpersuasive.
A. Defendant Did Not Waive the Statute of Limitations Defense When It Did Not Oppose Plaintiff's Effort to Reinstate Reeves I After Judge Williams's Dismissal Without Prejudice.
Defendant contends that Plaintiff's Complaint is barred because the Complaint was filed more than six months after the date that the VA mailed its final denial of Plaintiff's claim. ECF No. 22, ¶ 12, p. 4. In relevant part, the Federal Tort Claims Act (the "FTCA"), 28 USC § 2401(b), provides:
(b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action 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.
28 U.S.C. § 2401(b) (emphasis added). Here, with respect to her administrative claim filed with the VA, Plaintiff alleges as follows:
On April 17, 2018, Plaintiff sent a demand letter to the VA, attached as Exhibit ‘A.’ ... On January 2, 2019, the VA sent a denial of claims to the Plaintiff, attached as Exhibit ‘B.’
ECE No. 1, Compl. ¶ 4. Sure enough, Exhibit B to the Complaint is a denial of claim letter, dated January 2, 2019, from the VA addressed to Plaintiff. ECF No. 1-2.
As an initial matter, the Court notes that it can consider the January 2, 2019 denial of claim letter for all purposes without converting Defendant's Motion into a motion for summary judgment. "A district court can generally consider documents ‘attached to a complaint or incorporated in the complaint by reference ... on a motion to dismiss under Rule 12(b)(b).’ " Zurich Am. Ins. Co. v. Amerisure Ins. Co. , 9:16-CV-81393, 2017 WL 366232, at *6 (S.D. Fla. Jan. 20, 2017) (quoting Saunders v. Duke , 766 F.3d 1262, 1270 (11th Cir. 2014)) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ). Rule 10(c) provides that a " ‘copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.’ " Id. (quoting Fed. R. Civ. P. 10(c) and citing Solis-Ramirez v. United States Dep't of Justice , 758 F.2d 1426, 1430 (11th Cir. 1985) (holding that Rule 10(c) assures court's consideration of document attached to complaint does not convert motion to dismiss into motion for summary judgment)). "Admittedly, courts must conduct an inquiry into the nature of the document, its reliability, and the purpose for which it is attached before assuming that it stands for the truth of the content facially represented therein." Id. (citing Goines v. Valley Cmty. Serv. Bd. , 822 F.3d 159, 167 (4th Cir. 2016) ; Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1133-34 (D.C. Cir. 2015) ; N. Ind. Gun & Outdoor Shows, Inc. City of S. Bend , 163 F.3d 449, 455 (7th Cir. 1998) ; Gant v. Wallingford Bd. of Educ. , 69 F.3d 669, 674-75 (2d Cir. 1995) ). "However, if it is clear that the document ‘is what the complaint say[s] it is’ and that the attaching party endorsed its representations, then it ‘will be read to evidence what it incontestably shows.’ " Id. (quoting Gant , 69 F.3d at 674 ). This is the scenario presented here; as previously mentioned, Plaintiff referenced the January 2, 2019 VA denial of claim letter in her Complaint. ECE No. 1, Compl. ¶ 4. Further, she did not dispute the veracity or authenticity of that denial of claim letter or its contents. Indeed, Plaintiff endorsed the contents of the denial of claim letter and attached it to her Complaint as Exhibit B. As a consequence, the Court will read Exhibit B to evidence what it contestably shows – that the VA issued a denial of claim letter to Plaintiff on January 2, 2019. Thus, in accordance with the FTCA, 28 USC § 2401(b), to be timely this action had to be filed on or before July 2, 2019.
As previously discussed, this action was initially filed on June 26, 2019 and assigned Case No. 19-cv-22674-Williams/Torres in the Southern District of Florida (Reeves I); however, that case was dismissed without prejudice on November 4, 2019 due to the Parties’ failure to file a joint scheduling report. See Case No. 19-cv-22674-Williams/Torres, ECF No. 14. While Plaintiff moved to re-open that case, Judge Williams denied Plaintiff's motion on November 14, 2019. Id. , ECF Nos. 16 and 17. Critically, Plaintiff did not file the Complaint at issue in this case until November 15, 2019. ECF No. 1. Accordingly, the Complaint filed in this case was filed four months and thirteen days after July 2, 2019 – the deadline to timely file a Complaint in compliance with the FTCA. Thus, overall, Plaintiff filed the Complaint in this case (Reeves II) ten months and thirteen days after the VA issued a denial of Plaintiff's claim.
Unfortunately for Plaintiff, the FTCA's statute of limitations was not tolled when she filed her first complaint in Reeves I. "The Eleventh Circuit has unequivocally held in multiple contexts that the ‘dismissal of a complaint, without prejudice, does not allow a later complaint to be filed outside the statute of limitations.’ " Olagues v. Frost , 325 F. Supp. 3d 1315, 1319–20 (S.D. Fla. 2018) (citing Jackson v. Hall Cty. Gov't, Georgia , 568 F. App'x 676, 679 (11th Cir. 2014) ; Bost v. Fed. Express Corp. , 372 F.3d 1233, 1242 (11th Cir. 2004) ; Stein v. Reynolds Securities, Inc. , 667 F.2d 33 (11th Cir. 1982) ). In fact the Eleventh Circuit has recognized that "[t]he filing of a complaint does not toll a statute of limitations when that complaint is subsequently dismissed without prejudice because the dismissal ‘has the effect of placing the parties in a position as if the suit had never been filed.’ " Id. (quoting Dade County v. Rohr Indust., Inc. , 826 F.2d 983, 989 (11th Cir. 1987) ).
Seemingly in an effort to avoid the reality that Judge Williams's dismissal of Reeves I without prejudice did not toll the statute of limitations, Plaintiff argues that Defendant waived its statute of limitations defense when it did not oppose Plaintiff's effort to reinstate Reeves I. This argument lacks merit. And it is illogical because a dismissal without prejudice operates as though the complaint was never filed. Id. Accordingly, the fact that the initial complaint in Reeves I was filed within the statute of limitations is of no moment because the dismissal operates as though that action never existed.
Moreover, "[i]t is well established that the FTCA is a specific waiver of the sovereign immunity of the United States and must be strictly construed." Phillips v. United States , 260 F.3d 1316, 1318 (11th Cir. 2001) (citing United States v. Kubrick , 444 U.S. 111, 117–18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) ). "By enacting the FTCA time limitation period, 28 U.S.C. 2401(b), the United States has placed a condition on that waiver.... [l]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.’ " Id. (quoting Lehman v. Nakshian , 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) ). " ‘[S]ection 2401(b) ... is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims.’ " Id. (citing Kubrick , 444 U.S. at 117, 100 S.Ct. 352 ). Moreover, the Eleventh Circuit has cautioned that "in construing the FTCA's statute of limitations, ‘we should not take it upon ourselves to extend the waiver beyond that which Congress intended.’ " Id. (quoting Kubrick , 444 U.S. at 117, 100 S.Ct. 352 ).
Here, Plaintiff has not presented a single case or other authority to support her novel argument that Defendant waived the FTCA's statute of limitations defense in Reeves I when it did not oppose Plaintiff's filing of a motion for reinstatement of the case after Judge Williams dismissed Plaintiff's complaint in that action without prejudice. Nor has this Court located any authority to support such an argument. Plaintiff's argument is further belied by the Eleventh Circuit's warning that the Court cannot extend the FTCA's waiver provisions beyond that which Congress intended. Phillips , 260 F.3d at 1318 ; see also Dotson v. United States , 8:19-CV-2179-T-36JSS, 2020 WL 7229709, at *3 (M.D. Fla. Dec. 8, 2020) (dismissing an action as untimely because it was filed more than six month after a denial of claim letter was issued and recognizing that the "Eleventh Circuit has warned that ‘we should not take it upon ourselves to extend the waiver beyond that which Congress intended.’ ") (quoting Phillips , 260 F.3d at 1318 ). The Court, therefore, finds that there are no grounds for it to conclude that Defendant waived the FTCA's statute of limitations when Defendant purportedly agreed to or failed to oppose Plaintiff's efforts to reinstate Reeves I.
Moreover, Plaintiff has not argued nor has she demonstrated that equitable tolling would apply in this case. This is likely so because it seems quite clear that equitable tolling does not apply here. "Equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Woods v. United States , 700 F. App'x 982, 983–84 (11th Cir. 2017) (quoting Motta ex rel. A.M. v. United States , 717 F.3d 840, 846 (11th Cir. 2013) ). The Eleventh Circuit has stated that equitable tolling "is an ‘extraordinary remedy’ that should be used ‘sparingly.’ " Echemendia v. United States , 710 F. App'x 823, 827 (11th Cir. 2017) ( Arce v. Garcia , 434 F.3d 1254, 1261 (11th Cir. 2006) ). Here, no such extraordinary circumstances are present; therefore, the Court finds that even if Plaintiff had raised the argument – which she did not – equitable tolling is not warranted in this case.
B. Defendant Did Not Waive Its Statute of Limitations Defense Because It Asserted the Defense In Its Amended Answer.
Next, Plaintiff argues that Defendant waived its statute of limitations defense because it did not assert it in its initial answer. While it is true that Defendant did not assert a statute of limitations defense in its initial answer, see ECF No. 11, it is also true that Defendant asserted the defense in its Amended Answer. See ECF No. 21.
A defendant may cure a failure to raise a statute of limitations defense in a first responsive pleading by amending the pleading. 51 Am. Jur. 2d Limitation of Actions § 391 ("A defendant's failure to allege the statute of limitations as a defense in the answer or responsive pleading does not, in itself, prevent raising that defense through a motion for leave to amend the answer. The defendant may cure a failure to raise the defense in a first responsive pleading by amending the pleading. If the defendant's answer is thereafter properly amended, no waiver occurs as a result of the initial failure to plead it"). Moreover, " ‘an amended pleading supersedes the former pleading; the original pleading is abandoned by the amendment, and is no longer a part of the pleader's averments against his adversary." Mittenthal v. Florida Panthers Hockey Club, Ltd. , 472 F. Supp. 3d 1211, 1219 (S.D. Fla. 2020) (quoting Pintando v. Miami-Dade Hous. Agency , 501 F.3d 1241, 1243 (11th Cir. 2007) ). Thus, once Defendant filed its amended Answer, the Amended Answer became Defendant's responsive pleading in this action and Defendant's initial answer became a nullity. Koger v. Circuit County Court ex rel. Broward County Florida , 06-61655 CIV, 2007 WL 2460736, at *1 (S.D. Fla. Aug. 24, 2007) ("Ordinarily, an amended pleading supersedes the prior pleading and the prior pleading becomes a nullity.") (citing Nisbet v. Van Tuyl , 224 F.2d 66, 71 (7th Cir. 1955) ). And, by virtue of asserting the statute of limitations defense in its Amended Answer, Defendant cured its failure to raise the FTCA statute of limitations defense in its initial answer. Furthermore, Plaintiff has not presented any grounds for the Court to conclude otherwise. Nor has Plaintiff provided any caselaw or other authority that would permit the Court to find that Defendant was somehow foreclosed from asserting its FTCA statute of limitations defense in its Amended Answer.
Defendant filed its Amended Answer on June 23, 2020 – well before the July 17, 2020 deadline to file amended pleadings. See ECF No. 26. Thus, the Amended Answer was timely filed in accordance with this Court's Scheduling Order.
Accordingly, for the reasons asserted above, the Court holds that Defendant United States of America's Motion to Dismiss or, Alternatively, for Judgment on the Pleadings (ECF No. 22) is GRANTED . As such, this case is DISMISSED WITH PREJUDICE . The Clerk of Courts is directed to CLOSE this case. All pending motions are DENIED AS MOOT . And all pending hearings are CANCELED .
DONE and ORDERED in Chambers at Miami, Florida this 17th day of March 2021.