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Hall v. United States

United States District Court, Tenth Circuit

August 9, 2013



KATHRYN H. VRATIL, District Judge.

Plaintiff brings suit against the United States of America and the U.S. Army Corps of Engineers, alleging negligence for injuries that she sustained while camping at a park under defendants' maintenance and control. This matter is before the Court on defendants' Motion To Dismiss For Lack Of Subject Matter Jurisdiction (Doc. #3) filed April 1, 2013. For reasons stated below, the Court grants defendants' motion.

Legal Standard

Federal courts are courts of limited jurisdiction and, as such, must have a statutory or constitutional basis to exercise jurisdiction. Devon Energy Prod. Co., L.P. v. Mosaic Potash , 693 F.3d 1195, 1201 (10th Cir. 2012). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. Id . Mere conclusory allegations of jurisdiction are not enough. United States ex rel. Hafter, D.O. v. Spectrum Emergency Care, Inc. , 190 F.3d 1156, 1160 (10th Cir. 1999).

Generally, a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes one of two forms: a facial attack or a factual attack. "First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true." Holt v. United States , 46 F.3d 1000, 1002 (10th Cir. 1995) (internal citation omitted). "Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. at 1003 (internal citations omitted). Here, defendant makes a facial attack by alleging that the statute of limitations bars plaintiff's claim.

Factual Background

The complaint alleges the following facts: On May 23, 2009, plaintiff and her family were camping at Big Hill Lake in Cherryvale, Kansas, a park under the maintenance and control of the U.S. Army Corps of Engineers. At the campsite, several anchor bolts that had secured an old fire pit stuck out of the ground near a new fire pit. The bolts protruded several inches from the ground but vegetation obscured them. Plaintiff tripped on the old anchor bolts and fell directly onto the fire. She sustained burns to her left arm and left leg, and she required skin grafting on her left arm.

On May 23, 2011, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), plaintiff filed an Administrative Tort Claim with the U.S. Army Corps of Engineers. On April 5, 2012, the U.S. Army Claims Service mailed plaintiff's attorney a certified letter which denied plaintiff's claim. On April 9, 2012, Julia Thompson at the office of plaintiff's attorney signed the return receipt for the denial letter. Plaintiff filed her complaint on October 17, 2012.


I. Statute of Limitations

The FTCA provides that a "tort claim against the United States shall be forever barred... 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). Because the FTCA constitutes a waiver of the sovereign immunity of the United States, the Court must strictly construe it in order to prevent expanding the waiver beyond what Congress intended. Pipkin v. U.S. Postal Serv. , 951 F.2d 272, 275 (10th Cir. 1991); see United States v. Kubrick , 444 U.S. 111, 117-18 (1979). The statute of limitations is jurisdictional in nature so that if the action is barred, the Court lacks subject matter jurisdiction over plaintiff's claim. See Vaupel v. United States, 491 Fed.App'x 869, 873 (10th Cir. 2012) (citing Bradley v. United States , 951 F.2d 268, 270 (10th Cir. 1991)).

Here, plaintiff does not dispute that she filed her complaint 12 days after the six-month limitations period expired. She alleges that her late filing was due to counsel's miscalculation of the filing deadline upon receiving the denial letter. Plaintiff asserts that the Court should equitably toll the limitations period for 12 days because (1) the late filing does not prejudice defendant; (2) plaintiff's claim is not stale; and (3) the oversight was by plaintiff's counsel and not by plaintiff.

II. Equitable Tolling

The doctrine of equitable tolling operates to temporarily suspend the running of the statute of limitations under limited circumstances. See Benge v. United States , 17 F.3d 1286, 1288 (10th Cir. 1994). Equitable tolling is an "exception, not the rule, " and should be applied only in limited circumstances. Rotella v. Wood , 528 U.S. 549, 561 (2000); Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 96 (1990). Although the deadlines in Section 2401(b) are jurisdictional, courts have applied the doctrine of equitable tolling to FTCA claims. See Motley v. United States , 295 F.3d 820, 824 (8th Cir. 2002); Glarner v. United States , 30 F.3d 697, 701 (6th Cir. 1994); see also Irwin , 498 U.S. at 95-96 (equitable tolling doctrine may be applied to federal claims); Pipkin v. U.S. Postal Serv. , 951 F.2d 272, 275 (10th Cir. 1991) (equitable considerations may permit extension of time limits on federal claims). But see In re FEMA Trailer Formaldehyde Prods. Liab. Litig. , 646 F.3d 185, 189 (5th Cir. 2011) (equitable tolling doctrine does not apply to FTCA cases); Marley v. United States , 567 F.3d 1030, 1032 (9th Cir. 2008) (same); Wukawitz v. United States , 170 F.Supp.2d 1165, 1168-70 (D. Utah 2001) (same); Laroque v. United States , 750 F.Supp. 181, 184 (E.D. N.C. 1989) ...

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