Surén-Millán v. United States

• Decision Date: 31 July 2013
• Docket Number: Civil No. 13–1282 DRD.
• Parties: William SURÉN–MILLÁN, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

38 F.Supp.3d 208

William SURÉN–MILLÁN, Plaintiff

v.UNITED STATES of America, et al., Defendants.

Civil No. 13–1282 DRD.

United States District Court, D. Puerto Rico.

Signed July 31, 2013.

Evelyn Aimee de Jesus–Rodriguez, Caguas, PR, for Plaintiff.

Rafael J. Lopez–Rivera, United States Attorneys Office, San Juan, PR, for Defendants.

OPINION AND ORDER

Federal Torts Claims Act

DANIEL R. DOMINGUEZ, District Judge.

Pending before this Court is a Motion to Dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, which was filed by the United States of America and the Department of Veteran's Affairs (“Defendants”). (Docket No. 35). Said motion was filed in response to the Second Amended Complaint, see Docket No. 29, which was submitted by William Surén–Millán (“Plaintiff”). The aforementioned complaint invokes inter alia medical malpractice claims by way of the Federal Torts Claims Act (“FTCA”), which is governed inter alia by 28 U.S.C. §§ 2401(b), and 2671 –2680 ; and Art. 1802 of the Puerto Rico Civil Code (“PRCC”). For the reasons elucidated below, the Motion to Dismiss is hereby GRANTED and all other pending case motions shall be terminated upon entry of this Judgment.

I. Procedural and Factual Background:

The instant complaint arises from medical services received at a VA Hospital in Puerto Rico (“VA Hospital”). Said services were provided approximately between April 2, 2010 until October 2, 2010. Initially, Plaintiff went to the VA Hospital on April 2, 2010 after suffering an abrasion on his right foot in conjunction with symptoms such as hypertension

, drowsiness, fever, and weakness. The VA Hospital's medical staff diagnosed Plaintiff with an infection of his right leg. Seven (7) days later, on April 9, 2010, the medical staff scraped the bone of Plaintiff's right limb in an effort to treat the infection. Subsequently, on June 1, 2010, the medical staff recommended that Plaintiff have a portion of his right leg amputated. Furthermore, Defendants allegedly went so far as to warn Plaintiff that said amputation “was inevitable” as Plaintiff “could die” if said procedure was not carried out.See Docket No. 29. Plaintiff's mental and emotional state deteriorated significantly. Consequently, Plaintiff was convinced by his daughter to seek a second opinion before having the procedure carried out. Thus, Plaintiff was taken to Professional Hospital in Guaynabo (“Professional Hospital”) where, on June 3, 2010, he received a radically different recommendation: the amputation of only two toes. After the election of this second less-severe procedure, the operation was executed and Plaintiff remained at Professional Hospital for about two (2) weeks. On July 3, 2010, Plaintiff returned to the VA Hospital in order to receive therapy to aid in his recovery from the operation, which was carried out in the Professional Hospital. Plaintiff was discharged from the VA Hospital on October 2, 2010. Plaintiff is suing for the emotional damages suffered as a result of the VA Hospital's alleged misdiagnosis.

Prior to concluding the discussion regarding the facts of the instant case, the Court emphasizes several dates of critical importance to the pending motion. On June 29, 2012, the daughter of Plaintiff presented a claim before the Department of Veteran's Affairs (“DVA”), filing form 95, regarding the alleged misdiagnosis and improper treatment of her father. On November 28, 2012, the claim was denied by the DVA on the grounds that it was time barred. Thereupon, Plaintiff filed the instant lawsuit on April 9, 2014.

The instant motion to dismiss has been subject to much debate between the parties. Defendants, on February 07, 2014, submitted a motion to dismiss under Rule 12(b)(1). See Fed.R.Civ.P. 12(b)(1). Then, on February 28, 2014, Plaintiff filed an opposition to the motion to dismiss. Moreover, after the Court granted leave to file, Defendants filed a reply to Plaintiff's opposition on March 10, 2014. Finally, on April 07, 2014, Plaintiff presented a sur-reply. Both parties discuss the same points of law but come to entirely different conclusions. Plaintiff avers that the claims accrued on July 3, 2010 while Defendants allege that the claims accrued at least a month earlier. Should the Court agree with Defendants' proposition, Plaintiff's claims would be time barred and ripe for dismissal. Should the Court agree with Plaintiff's proposition, the claims would survive and in-depth discovery will ensue. Having laid out all of the relevant factual and procedural history, the Court shall expound upon the legal analysis that grounds the instant determination.

II. Legal Analysis:

The resolution of the pending motion will be centered around the accrual date and statute of limitations under the FTCA. Before entering into the legal discussion, this Court shall briefly reference Fed.R.Civ.P. 12(b)(1), Fed.R.Civ.P. 12(b)(6), and 28 U.S.C. § 2401(b).

A. Federal Rule of Civil Procedure 12(b)(1)

A challenge under Rule 12(b)(1) constitutes a challenge to the federal court's subject-matter jurisdiction, which may include ripeness, mootness, and sovereign immunity. See Valentín v. Hospital Bella Vista, 254 F.3d 358, 362–63 (1st Cir.2001). Where subject-matter jurisdiction is challenged under 12(b)(1), the party asserting jurisdiction bears the burden of demonstrating the existence of federal subject-matter jurisdiction. See Skwira v. United States, 344 F.3d 64, 71 (1st Cir.2003). Moreover, “it is firmly settled that challenges to federal subject matter jurisdiction may be raised for the first time on appeal.” Am. Fiber & Finishing, Inc. v. Tyco Healthcare Grp., LP, 362 F.3d 136, 138–39 (1st Cir.2004) (reiterated by Merit Const. Alliance v. City of Quincy, 759 F.3d 122, 126-27, 2014 WL 3457605 *2 (1st Cir.2014) ). “Subject-matter jurisdiction can never be waived or forfeited.” Gonzalez v. Thaler, ––– U.S. ––––, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (emphasis provided).

The First Circuit has repeatedly described the FTCA statute of limitations, see 28 U.S.C. § 2401, as jurisdictional in nature. See e.g. Román–Cancel v. United States, 613 F.3d 37, 42 (1st Cir.2010). This interpretation invites a Rule 12(b)(1) dismissal when a plaintiff has not complied with the timelines of § 2401. See Fed.R.Civ.P. 12(b)(1) (“[A] party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction ....” (emphasis provided)). However, the First Circuit has recently recognized that, pursuant to recent Supreme Court guidance on the term, the FTCA statute of limitations may not be “jurisdictional.” See Sanchez v. U.S., 740 F.3d 47, 53–54 (1st Cir.2014) (referencing Gonzalez, 132 S.Ct. at 648 ). Despite the concern expressed by the First Circuit, this Court is not aware of any concrete change to First Circuit precedent regarding § 2401. Therefore, the FTCA statute of limitations is still (apparently) considered to be “jurisdictional” in the First Circuit. Notwithstanding, neither of the parties have made an argument as to the potential inapplicability of Rule 12(b)(1) to the case at bar. Therefore, the issue is deemed to be waived; the Court shall, as proposed by the parties, apply Rule 12(b)(1) to the instant controversy. Nevertheless, out of an abundance of caution and for the sake of completeness, the Court shall further analyze the instant motion under the familiar terrain of Rule 12(b)(6).

B. Federal Rule of Civil Procedure 12(b)(6)

Rule 12(b), which contains seven subsections, is the primary source cited by Courts in dismissing defective complaints. See Fed.R.Civ.P. 12(b). Upon being confronted with an allegation regarding the sufficiency or insufficiency of a complaint, the Court first turns to Fed.R.Civ.P. 8(a), which enumerates the minimum requirements of a valid complaint:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

A 12(b)(6) motion is used to dismiss complaints that do not “state a claim upon which relief can be granted.” See Fed.R.Civ.P. 12(b)(6). A 12(b)(6) motion to dismiss will succeed when the pleadings of a complaint do not comply with Rule 8(a)(2). However, what does and does not comply with Rule 8(a)(2) has been the subject of debate for decades in the legal community.

The Supreme Court sparked this debate in 1957 upon being called to evaluate the sufficiency of an allegedly deficient complaint:

In appraising the sufficiency of the complaint [in this case] we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. (emphasis provided).

Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (overruled by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

This passage, embraced by our highest Court at the time, had been interpreted by many judges and commentators to mean that “a wholly conclusory statement of claim [without more] would survive a [12(b)(6) ] motion to dismiss whenever the [complaint] left open [any] possibility that a plaintiff might later [, during the course of discovery,] establish some set of [undisclosed] facts to support recovery.” Twombly, 550 U.S. 544, 561, 127 S.Ct. 1955 (2007) (describing the evil created by the controversial Conley passage) (internal quotations omitted). Such an interpretation harshly affects an innocent defendant's desire to defend himself. “[T]he threat of discovery expense [would] push cost-conscious defendants to settle even anemic cases [.]” Id. at 559, 127 S.Ct. 1955. Hence, many other judges and commentators, wary of these...