United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
Cook brings this action in her individual capacity and as
personal representative of the Estate of Alice May Lindsey.
According to the allegations in Ms. Cook’s Complaint,
Ms. Lindsey was a patient of the Okemah Indian Community
Hospital, a/k/a Creek Nation Community Hospital (the
Hospital) beginning in 1987. In July, 2007, Lindsey went to
the Hospital for complications with her throat, including
hoarseness and trouble swallowing. For over five years, the
Hospital performed blood testing, thyroid sonograms, and CT
scans of Lindsey’s chest. Those tests continually
showed a steadily enlarging lobe of the thyroid and expanding
nodules on the lung. Lindsey’s weight decreased between
each visit to the Hospital. Despite the test results and
decreasing weight, the enlarged thyroid and expanding lung
nodules were not biopsied or otherwise surgically tested.
of 2012, Lindsey was evaluated by other medical providers
(separate from the Hospital), who ordered biopsies. The
biopsies showed signs consistent with metastatic thyroid
cancer. On July 12, 2012, Lindsey was admitted to Saint
Francis Hospital in Tulsa for exploratory neck surgery. Due
to the extent of the erosion to the left side of the thyroid,
the physician was unable to remove the thyroid gland. Lindsey
ultimately died of metastatic thyroid cancer on May 8, 2013.
February, 2014, plaintiff presented a written tort claim
notice to the United States Department of Health and Human
Services (DHHS), which is responsible for medical care at the
Hospital. The DHHS acknowledged receipt by letter dated March
27, 2014. More than six months passed without DHHS providing
a final disposition of the claim. On February 12, 2015,
plaintiff brought a wrongful death action under 28 U.S.C.
§§ 2401(b), 2675. That case was styled Carmela
Cook and The Estate of Alice May Lindsey v. United States of
America, 15-CV-0079-CVE-FHM. After the suit was filed,
plaintiff received a letter dated April 20, 2015 from DHHS,
denying plaintiff’s administrative claim.
first case, United States District Judge Claire V. Eagan set
a September 7, 2015 deadline for expert identification and
report. On September 9, 2015, after the deadline passed,
plaintiff requested an extension of time to submit her expert
identification and report, asserting that she could not
afford an expert. (Doc. 25 at 2). United States Magistrate
Frank H. McCarthy denied the extension request, finding that
the plaintiff had not established good cause to extend the
deadline. (Doc. 33). On November 24, 2015, plaintiff moved to
dismiss her lawsuit without prejudice. Judge Eagan granted
that motion and dismissed plaintiff’s claims without
prejudice on December 1, 2015. These dates are undisputed.
(See Doc. 10 at 1-2).
filed the instant lawsuit on August 23, 2016 and attached a
certification of consultation with an expert. (Doc. 2-1). The
United States moves to dismiss this case under Fed.R.Civ.P.
12(b)(6) based upon a time limitation in the Federal Tort
Claims Act (FTCA). The FTCA provides two limitations periods
for filing tort claims:
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). Thus, a tort claim must be (1)
presented to the federal agency within two years after the
claim accrues and (2) filed in the district court within six
months after the agency’s mailing of a notice of final
denial. See United States v. Wong, ___ U.S. ___, 135
S.Ct. 1625, 1629 (2015) (citing § 2401(b)).
presented her administrative claim to the DHHS within two
years of Ms. Lindsey’s death, such that the first
limitation period was satisfied. It is the second statutory
time period that is at issue in this case. The United States
argues that this action should be dismissed because the
DHHS’s notice of denial of plaintiff’s claim was
provided on April 20, 2015, and plaintiff did not file the
instant action until 16 months later on August 23, 2016
– approximately 10 months after the six-month time
limitation of § 2401(b) had expired.
defendant may raise an affirmative defense by a motion to
dismiss for the failure to state a claim.”
Jiying, 759 F. A’ppx at 739 (quoting
Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th
Cir. 1965)). Moreover, “it is appropriate to resolve a
statute of limitations defense on a Rule 12(b)(6) motion
‘when the dates given in the complaint make clear that
the right sued upon has been extinguished.”
Id. (quoting Sierra Club, 816 F.3d at 671).
A complaint is subject to dismissal for failure to state a
claim “[i]f the allegations show that relief is barred
by the applicable statute of limitations.” Nunn v.
Relich, 642 F.App'x 905, 906 (10th Cir. 2016)
(quoting Jones v. Bock, 549 U.S. 199, 215 (2007)).