Halvorson v. United States

Decision Date31 March 2019
Docket NumberCIV. 18-5032-JLV
Citation381 F.Supp.3d 1115
Parties Ronda HALVORSON, as Special Administrator of the Estate of Kenneth Holst, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of South Dakota

Donald P. Knudsen, Gunderson, Palmer, Nelson & Ashmore, LLP, Nathan R. Chicoine, DeMersseman Jensen Tellinghuisen & Huffman, LLP, Rapid City, SD, for Plaintiff.

Meghan K. Roche, U.S. Attorney's Office, Sioux Falls, SD, for Defendant.

ORDER

JEFFREY L. VIKEN, CHIEF JUDGE

INTRODUCTION

This case stems from decedent Kenneth Holst's alleged wrongful death. Plaintiff Ronda Halvorson brought suit under the Federal Tort Claims Act ("FTCA"), alleging decedent's death was caused by employee negligence at the Department of Veterans Affairs ("VA") Fort Meade hospital in Sturgis, South Dakota. (Docket 1 at ¶¶ 31-39). As defendant, the United States moves to dismiss plaintiff's complaint on the grounds it was filed untimely, resulting in a lapse of the FTCA's waiver of sovereign immunity. (Docket 7). Plaintiff resists the motion. (Docket 16).

The court referred the pending motion to Magistrate Judge Veronica L. Duffy pursuant to the court's standing order of October 16, 2014, and 28 U.S.C. § 636(b)(1) for a report and recommendation ("R&R"). (Docket 21). The magistrate judge issued an R&R concluding defendant's motion to dismiss should be granted. (Docket 22). Plaintiff timely objected to the R&R and defendant responded to the objections. (Dockets 23 & 24). Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. For the reasons given below, the court overrules plaintiff's objections in part and sustains them in part. The court denies defendant's motion to dismiss.

ANALYSIS
I. Facts

Neither party objected to the magistrate judge's factual findings. (Dockets 23 at p. 1 & 24 at p. 2). The court accordingly adopts the facts recited by the magistrate judge. (Docket 22 at pp. 2-6). For the purposes of resolving plaintiff's objections to the R&R, the court need only recite a few key facts.

On May 19, 2015—when he was 84 years old—decedent went to the Fort Meade VA hospital for post-operative care. Id. at p. 3. On that day, he fell while in the hospital and fractured his pelvis

. Id. at pp. 3-4. Plaintiff alleges the VA's negligence caused the fall and resulted in further injury, including pneumonia and a stroke. Id. at p. 4. This negligence shortened decedent's life span and caused his "untimely and wrongful death[.]" Id. at pp. 4-5; Docket 1 at ¶ 35. Decedent died on June 3, 2016. (Docket 17).

Plaintiff was appointed special administrator of decedent's estate on May 9, 2017. (Docket 1 at ¶ 8). She presented her claim to the VA for administrative adjudication on May 17. Id. at ¶ 10. The six-month mark after plaintiff filed her administrative claim passed on November 17.1 Plaintiff filed the present case with this court on May 10, 2018. (Docket 1).

II. Plaintiff's Objections

Plaintiff objects to two of the magistrate judge's legal conclusions. As summarized by the court, the objections argue:

1. The two-year limit for medical malpractice claims imposed by a South Dakota statute of repose, SDCL § 15-2-14.1, was tolled by an extender statute, SDCL § 29A-3-109. (Docket 23 at pp. 2-4).
2. The FTCA's timing provisions preempt the South Dakota statute of repose. Id. at pp. 4-8.

The court will examine each objection in turn.

III. Discussion
A. Legal standards

1. Rule 12(b)(1)

Defendant argues the court lacks subject matter jurisdiction over plaintiff's FTCA claim. (Docket 7). Under Federal Rule of Civil Procedure 12(b)(1), a defendant has the right to challenge the "lack of subject-matter jurisdiction ...." Fed. R. Civ. P. 12(b)(1). While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court must "accept all factual allegations in the pleadings as true and view them in the light most favorable to the nonmoving party." Great Rivers Habitat All. v. Fed. Emergency Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010). The court "has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1).... This does not ... convert the 12(b)(1) motion to one for summary judgment." Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 638 (8th Cir. 2003). "The burden of proving federal court jurisdiction is on the party seeking to invoke federal jurisdiction." Mitchael v. Colvin, 809 F.3d 1050, 1053 (8th Cir. 2016) (citing Great Rivers, 615 F.3d at 988 ).

2. FTCA

"The United States is immune from suit unless it consents. Congress waived the sovereign immunity of the United States by enacting the FTCA, under which the federal government is liable for certain torts its agents commit in the course of their employment. The United States is, nevertheless, immune if an exception applies." Hart v. United States, 630 F.3d 1085, 1088 (8th Cir. 2011). "Where the United States has not waived sovereign immunity under the FTCA, the district court lacks subject matter jurisdiction to hear the case." Id. "The FTCA confers subject matter jurisdiction for suits against the United States in ‘circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ " Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018) (quoting FDIC v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ).

The FTCA contains an interconnected statute of limitation and administrative adjudication requirement.

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 ... notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b).

An action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.

Id. at § 2675(a).

These statutes create the following procedural schedule for FTCA plaintiffs.

1. The claim must be presented to the federal agency for administrative adjudication within two years of the claim's accrual. Id. at § 2401(b).
2. If the agency does not make a final disposition of a claim within six months, it is deemed denied and the plaintiff may file suit in federal court. Id. at §§ 2401(b), 2675(a).
3. If the plaintiff chooses to pursue the administrative adjudication process to its conclusion and the agency denies her claim, she must file her suit in federal court within six months of the denial. Id. at § 2401(b).

The FTCA requires plaintiffs to attempt administrative adjudication but leaves to their discretion whether to file suit at six months after the agency receives the claim—under the deemed denial provision—or within six months of the agency's actual final denial of the claim. If a plaintiff chooses to participate in the entire administrative adjudication process, the FTCA sets no time limit on that process.

B. Extender statute objection

Plaintiff's first objection argues the two-year limit set by South Dakota's statute of repose was tolled by a separate statute. The magistrate judge concluded this argument failed under controlling South Dakota case law and was contrary to the plain terms of the statute. The court agrees.

The issue arises from South Dakota's medical malpractice statute of repose. The statute states "an action against a [health care professional], whether based upon contract or tort, can be commenced only within two years after the alleged malpractice ... occurred."2 SDCL § 15-2-14.1. However, the extender statute suspends "[t]he running of any statute of limitations on a cause of action belonging to a decedent ... for one year[.]" SDCL § 29A-3-109. Defendant's alleged negligence occurred on May 19, 2015, but plaintiff did not file this suit until May 10, 2018. Plaintiff's suit is untimely under the statute of repose but would be timely if the repose deadline is subject to the extender statute.

A South Dakota Supreme Court case squarely resolves this objection. In Pitt-Hart v. Sanford USD Med. Ctr., the South Dakota Supreme Court unequivocally affirmed that SDCL § 15-2-14.1 is a statute of repose which "will not be tolled for any reason ." 878 N.W.2d 406, 413 (S.D. 2016) (quotation omitted) (emphasis in original). The two-year repose period created by SDCL § 15-2-14.1 cannot be tolled for any reason under Pitt-Hart, including by operation of the extender statute. Id. In any case, as the magistrate judge noted, the extender statute by its plain terms applies only to statutes of limitation, not statutes of repose. SDCL § 29A-3-109 ("The running of any statute of limitations ....") (emphasis added).

Plaintiff refers the court to her argument in response to defendant's motion to dismiss that the extender statute's use of the term "statute of limitations" should be interpreted to include statutes of repose. (Docket 16 at pp. 2-6). She noted the South Dakota Supreme Court used the terms interchangeably on occasion and that "there is no evidence that the South Dakota Legislature used the term statute of limitation’...

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