Nunnelee v. United States

• Decision Date: 26 September 2013
• Docket Number: Case No.: 4:11–CV–2039–VEH.
• Citation: 972 F.Supp.2d 1279
• Parties: John NUNNELEE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Alabama

972 F.Supp.2d 1279

John NUNNELEE, Plaintiff,

v.UNITED STATES of America, Defendant.

Case No.: 4:11–CV–2039–VEH.

United States District Court,

N.D. Alabama,

Middle Division.

Sept. 26, 2013.

J. Alan Truitt, Maynard Cooper & Gale PC, Birmingham, AL, for Plaintiff.

Brian Eugene Bowcut, Washington, DC, John C. Bell, US Attorney's Office, Birmingham, AL, for Defendant.

MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

I. INTRODUCTION

Plaintiff John Nunnelee (“Mr. Nunnelee”) initiated this property damage action against the United States of America (the “Government”) on June 14, 2011. (Doc. 1). At that particular juncture, Mr. Nunnelee was proceeding pro se. Subsequently, due to the complexity of the case, on October 5, 2011, the court appointed counsel to represent Mr. Nunnelee. (Doc. 14).

Mr. Nunnelee filed a first amended complaint on February 20, 2013, asserting four tort-based causes of action ¹ against the Government pursuant to the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. § 1346(b).² (Doc. 21). After answering Mr. Nunnelee's amended pleading (Doc. 24) on April 26, 2013, the Government filed, on June 7, 2013, a Motion To Dismiss Plaintiff's First Amended Complaint for Lack of Jurisdiction (Doc. 29) (the “Motion”), a supporting brief (Doc. 30),³ and several evidentiary materials. (Docs. 31–33)

Mr. Nunnelee opposed the Motion on June 24, 2013 (Doc. 35), and the Government followed with its reply on July 9, 2013. (Doc. 36). This case was then reassigned to the undersigned on July 15, 2013. (Doc. 37). Having studied both sides' positions, the Motion is due to be granted in part and denied in part.

II. STANDARDSA. Statute of Limitations

An unpublished panel of the Eleventh Circuit has articulated the following standard governing a statute of limitations defenseasserted in a lawsuit arising under the FTCA:

We review de novo the grant of a motion to dismiss. Doe v. Pryor, 344 F.3d 1282, 1284 (11th Cir.2003). “When considering a motion to dismiss, all facts set forth in the plaintiff's complaint are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000) (internal quotation marks and citation omitted). “Dismissal ... on statute of limitations grounds is appropriate ... if it is apparent from the face of the complaint that the claim is time-barred.” Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir.2005) (internal quotation marks and citation omitted). “At the motion-to-dismiss stage, a complaint may be dismissed on the basis of a statute-of-limitations defense only if it appears beyond a doubt that Plaintiffs can prove no set of facts that toll the statute.” Id. at 1288 n. 13 (internal quotation marks and citation omitted).

Keira v. United States Postal Service, 157 Fed.Appx. 135, 136 (11th Cir.2005) (emphasis added).

Regarding timeliness under the FTCA:

In order to bring a tort action against the United States, a plaintiff must act within the two-year statute of limitations period established by the FTCA. The applicable provision dictates that “[a] tort 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.” 28 U.S.C. § 2401(b). The general rule is that a claim under the FTCA accrues at the time of injury. United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979). In certain situations, such as medical malpractice, the claim may accrue at a later date. The rule for medical malpractice claims is that they accrue when the plaintiff knows of both the injury and its cause. Id., at 22, 100 S.Ct. at 359. “The rationale behind the modified rule is to protect plaintiffs who are blamelessly unaware of their claim because the injury has not yet manifested itself or because the facts establishing a causal link between the injury and the medical malpractice are in the control of the tortfeasor or are otherwise not evident.”

Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir.1999) (emphasis added).

B. Subject Matter Jurisdiction Generally

Unlike state courts, federal tribunals are bodies of limited jurisdiction, meaning that the grounds for the court's jurisdiction must be present at the time the complaint is filed and must be obvious on the face of the complaint. Fed.R.Civ.P. 8(a); 28 U.S.C. § 1330, et seq. The law is clear that Mr. Nunnelee, the person seeking to invoke federal jurisdiction in this case, has the burden to demonstrate that the court has subject matter jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 56 S.Ct. 780, 782, 80 L.Ed. 1135 (1936) (“It is incumbent upon the plaintiff properly to allege the jurisdictional facts, according to the nature of the case.”).

Further, lack of subject matter jurisdiction cannot be waived or expanded by judicial interpretation, and a jurisdictional deficiency can be raised at any time by either the parties or the court. See, e.g., Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556–57, 42 L.Ed.2d 532 (1975) (citation omitted) (“While the parties may be permitted to waive nonjurisdictional defects, they may not by stipulation invoke the judicial power of the United States in litigation which does not present an actual ‘case or controversy,’ and on the record before us we feel obliged to address the question of mootness before reaching the merits of appellant's claim.”); Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17–18, 71 S.Ct. 534, 542, 95 L.Ed. 702 (1951) (“The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation or by prior action or consent of the parties.”).

C. Standing Specifically

“Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).” Stalley v. Orlando Reg'l Healthcare Sys., 524 F.3d 1229, 1232 (11th Cir.2008).

The Supreme Court of the United States recently has elaborated upon several principles pertaining to the constitutional doctrine of standing:

Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” § 2. One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III's requirements.” Diamond [ v. Charles] , supra, [476 U.S. 54] at 62[, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) ].

* * *

Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, but Article III demands that an “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U.S. ––––, ––––, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (slip op., at 4) (internal quotation marks omitted).

Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (2013) (emphasis added).

III. ANALYSISA. Statute of Limitations

In opposing the Government's Motion with respect to its statute of limitations defense, Mr. Nunnelee maintains that “[b]oth the Supreme Court and the Eleventh Circuit have recognized a ‘discovery rule’ of accrual of a claim under the Federal Tort Claims Act (“FTCA”), and, thus, a delay to the start of the limitations period, where either the injury or its potential cause is not apparent.” (Doc. 35 at 5). While Mr. Nunnelee is correct that the Supreme Court in Kubrick and the Eleventh Circuit in Diaz embraces the application of a discovery-related accrual rule, i.e., knowledge of injury and its cause, in the context of a FTCA medical malpractice claim, neither opinion indicates that this same framework should extend to property damage claims under the FTCA.

As Diaz provides, most FTCA cases adhere to the general rule that a claim accrues at the time of injury. Further, while Diaz acknowledges that “[i]n certain situations,” exceptions to this general accrual standard exist, the court only expressly addresses the diverging rule for medical malpractice claims arising under the FTCA.

The additional Eleventh Circuit authorities upon which Mr. Nunnelee relies are all, akin to Diaz, FTCA medical malpractice decisions. See, e.g., Price v. United States, 775 F.2d 1491, 1492–93 (11th Cir.1985) (“This appeal concerns the issue of when the statute of limitations begins to run in a medical malpractice action under the FTCA.”); McCullough v. United States, 607 F.3d 1355, 1356 (11th Cir.2010) (“The district court granted summary judgment for the United States because Mr. McCullough's administrative claim was filed more than two years after Mr. McCullough knew that his paralysis was caused by a spinal abscess.”).

Mr. Nunnelee also cites to several non-binding opinions in support of his position. Therefore, the court reviews these decisions to determine whether any of them is helpful in its efforts to address this apparently still open question of Eleventh Circuit law.⁴

First, in Kronisch v. United States, 150 F.3d 112, 116 (2d Cir.1998), the Second Circuit was faced with a plaintiff who was claiming personal injury as “one of the victims of the CIA's program to test the effects of mind-altering drugs, including lysergic acid diethylamide (“LSD”), on unwitting subjects beginning in the early 1950s.” In evaluating the timeliness of ...