The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
AMENDED ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Defendant United States of America moves for dismissal pursuant to F.R.Civ.P. 12(b)(1) and (6), contending that this case is barred by the applicable statute of limitation, 28 U.S.C. § 2401(b). Plaintiff Bessie Irene Waltz responds that, because the limitations period was equitably tolled, her complaint was timely and dismissal is inappropriate.
The parties argued the Government's motion at 10:00 a.m. on March 4, 2010, in Courtroom 4 before the Honorable Sandra M. Snyder, U.S. Magistrate Judge.*fn1 Attorney James Joseph Banks, Banks & Watson, appeared for Plaintiff; Assistant United States Attorney Ernest Robert Wright appeared for Defendant. Prior to the hearing, the Court reviewed all papers in support and opposition of the motion. Following argument, the Court took the matter under advisement and now grants the Government's motion for dismissal.
I. Factual and Procedural Background
Plaintiff received multiple serious injuries on May 20, 2006, when the motorcycle she was driving collided with a 1993 Ford ten-wheel dump truck loaded with dirt that had crossed the center line of Road 274 near the town of Bass Lake, California. (Waltz v. United States of America, 1:06-cv-01831-SMS (E.D.Cal.)("Waltz I"), Doc.11).*fn2 The dump truck was owned by the United States Forest Service and operated by its employee. Id.
On June 21, 2006, in compliance with the Federal Tort Claims Act, 28 U.S.C. 2671-2680 ("FTCA"), Plaintiff filed a claim for property damage and personal injury with the U.S. Department of Agriculture Forest Service. The government did not respond. Accordingly, Plaintiff filed suit against the United States; the U.S. Department of Forestry [sic]; Richard Ernest Bailey, the truck's driver; and twenty-five John Doe Defendants on December 18, 2006 (Waltz I, Doc.1).
On February 13, 2007, the Department of Agriculture denied Plaintiff's administrative claim (Waltz v. United States, 1:07-cv-01691-SMS ("Waltz II"), Doc. 20-3). The denial letter provided, in pertinent part:
This is the final denial of the claim of Ms. Waltz. The Department of Agriculture's regulations require us to inform you that if your client is dissatisfied with this final action on her claim, she may file suit against the United States of America in an appropriate United States District Court not later than six (6) months from the date of mailing this letter, which is the date shown above.
I note that suit is pending against the United States in the United States District Court, Eastern District of California, regarding the allegations set forth in the claim. However, should the action presently in litigation be dismissed on any grounds, you are reminded of the requirement that suit be filed in an appropriate United States District Court not later than six (6) months after the date of the mailing of this letter, which is the date shown above.
On February 26, 2007, Defendant answered the complaint, asserting as an affirmative defense that "Plaintiff has failed to exhaust her administrative remedies" (Waltz I, Doc. 15).
On October 25, 2007, Defendant moved to dismiss the complaint, contending that the Court lacked subject matter jurisdiction under the FTCA because Plaintiff filed her complaint less than six months after filing her administrative claim, as required by 28 U.S.C. § 2675(a) (Waltz I, Doc. 17). That section of the FTCA provides, in pertinent part:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his employment, 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 the agency to make final disposition of the claim within six months ...