Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Alexander v. United States

United States District Court, S.D. California

May 5, 2014

UNITED STATES OF AMERICA, et al., Defendant.


THOMAS J. WHELAN, District Judge.

Pending before the Court is Defendant United States of America's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff Dayne Alexander opposes.

The Court decides the matters on the papers submitted and without oral argument. See Civ. L. R. 7.1(d.1). For the reasons discussed below, the Court GRANTS the motion to dismiss [Doc. 6] and ORDERS the case DISMISSED WITHOUT LEAVE TO AMEND.


This lawsuit arises from an injury suffered by Plaintiff Dayne Alexander while working out at the Olde Gym at the Naval Base San Diego. ( Compl. [Doc. 1], ¶11.) Alexander contends that while using the Maxicam Squat Rack Stairstep 2020, the machine collapsed on him resulting in a fracture of the left femur, and later requiring several surgeries. ( Id., ¶ 12.)

On March 7, 2012, Alexander submitted a claim with Defendant United States for $850, 000 under the Federal Tort Claims Act ("FTCA"). ( Opp. [Doc. 7], 5:14-15.) On November 12, 2012, Defendant denied the claim, and on March 8, 2013, Alexander filed a lawsuit in the Southern District of California entitled, Alexander v. United States of America, Civil Case No. 13cv545 (the "Alexander I").

Shortly after the lawsuit was filed, on July 3, 2013, Alexander filed a motion seeking "leave to file a First Amended Claim Form, or in the alternative, to dismiss [the] complaint and then file a new claim form followed by refilling [sic] of complaint...." ( See Notice of Mt. [Doc 7 in Alexander I], 1:22-25.) According to the motion, after the government claim was submitted, Alexander learned that he would require more medical care and periods of recovery during which he would not be able to work. ( Memo of P&A [Doc. 7-1 in Alexander I], 3:8-10, 6:22-23.) As a result, Alexander sought to amend his FTCA claim to increase the damages sought from $850, 000 to $6 million. ( Id., 6:1-2.)

On December 28, 2013, this Court issued an Order Granting In Part and Denying In Part Plaintiff's Motion to Amend or Dismiss Without Prejudice. ( See Order [Doc. 24 in Alexander I].) With respect to Alexander's request to amend his FTCA claim, Alexander failed to identify any authority allowing a claimant to file a motion to amend an FTCA claim in district court. ( Id., 3:9-11, 3:20-26.)

The Order explained, however, that notwithstanding the lack of authority to move to amend a claim in district court, 28 U.S.C. § 2675(b) allowed Alexander to seek damages in excess of $850, 000 in Alexander I if he could demonstrate that "the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the mount of the claim." ( Order, 3:28-4:3.) But the Order further explained that the cases allowing claimants to pursue larger damage claims made the determination that the increased damages were based on newly discovered evidence "at trial, not at the start of the litigation before discovery has been conducted." ( Id., 4:4-6.) Because Alexander I was still in the early stages of discovery, the Court found that evaluating whether "Alexander's increased damages are based on newly discovered evidence at this stage in the litigation would be prejudicial to Defendant, " particularly given that Alexander's motion was based on evidence in his possession. ( Id., 4:23-5:3.) The Order, therefore, notified Alexander that as an alternative to dismissing the case, he could "proceed with this litigation and seek a determination about whether his increased damage claim is based on newly discovered evidence at the appropriate time." ( Id., 6:3-5.) Instead, on December 26, 2013, Alexander filed a request for dismissal without prejudice, which was granted on December 30, 2013.

Meanwhile, on December 23, 2013, Alexander filed a second or amended government claim form, which was rejected on January 16, 2014. On January 17, 2014, Alexander filed this lawsuit, and Defendant's motion to dismiss followed.


The FTCA provides, in part, that "a tort claim against the United States shall forever be barred... unless action is begun within six months after the date of mailing, by certified or registered mail, notice of final decision of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b). Thus, a claimant "must file suit within six months of administrative denial of the claim." Dyniewicz v. United States , 742 F.2d 484, 485 (9th Cir. 1984). "Failure to satisfy this requirement deprives a court of subject matter jurisdiction." Galvan v. United States, 957 F.Supp.2d 1182 (E.D. Cal. 2013).

Here, the United States denied Alexander's claim on November 12, 2012. Based on this date, the limitations period expired on May 12, 2013. Because Alexander I was filed on March 8, 2013, that lawsuit was timely. This case, however, was filed on January 17, 2014, well beyond the 6-month FTCA limitations period. Accordingly, the lawsuit is time barred as to the United States.

Alexander, nevertheless, argues that equitable tolling should apply to save his case. However, Alexander's argument is not supported by any authority and is contrary to the Ninth Circuit's decision in Lehman v. United States , 154 F.3d 1010 (9th Cir. 1998).[1]

In Lehman, plaintiffs filed an FTCA claim after being struck and injured by a U.S. Postal Service truck. The claim was rejected and plaintiffs filed a timely lawsuit. Plaintiffs later voluntary dismissed the lawsuit without prejudice, relying on an agreement with the government's attorney that the action "would be voluntarily dismissed until Ms. Lehman's medical condition had stabilized, at which point settlement negotiations' would resume." Id . at 1012. According to plaintiffs, defense counsel later repudiated the agreement and refused to settle. Plaintiffs then filed a new lawsuit, more than a year after the Postal Service denied plaintiffs' FTCA claim, and the government moved to dismiss the new case as time barred. The district court granted defendant's motion.

On appeal, plaintiffs argued that the statute of limitations should be equitably tolled based on the government's agreement to allow plaintiff to voluntarily dismiss the original lawsuit in order to engage in settlement negotiations. Lehman , 154 F.3d at 1015. Plaintiffs also argued that equitable tolling was justified because defense counsel never advised plaintiffs' counsel that the lawsuit would need to be re-filed within 6 months of the denial of the original FTCA claim. Id.

The Ninth Circuit explained that equitable tolling is applied sparingly, for example, "when the statutes of limitations was not complied with because of defective pleadings, when a claimant was tricked by an adversary into letting a deadline expire, and when the agency's written notice of the statutory period was clearly inadequate." Lehman, 154 F.3d at1016 (quoting Scholar v. Pacific Bell , 963 F.2d 264, 267-268 (9th Cir. 1992)). However, "the doctrine is not available to avoid the consequences of one's own negligence, " such as " when a late filing is due to claimant's failure to exercise due diligence in preserving his legal rights. '" Id . (emphasis in original). Nor is opposing counsel obligated to advise his or her adversary about the statute of limitations. Because defense counsel did not make any misrepresentations regarding the statute of limitations or the effect of plaintiffs' voluntary dismissal, the Ninth Circuit found that plaintiffs failed to demonstrate their "ignorance of the limitations period was excusable" and affirmed the dismissal. Id . at 1016.

Here, the argument for equitable tolling is even less compelling than in Lehman. Unlike Lehman, there is no question that Alexander's decision to dismiss Alexander I was solely the result of his or his attorney's strategy. Alexander I was not dismissed because of any agreement between the parties, but instead was the direct result of Alexander's motion requesting that the Court allow him to dismiss the case without prejudice. In fact, Defendant opposed Alexander's request, and this Court's Order in Alexander I provided him with an alternative to dismissing the case:

Alexander may proceed with this litigation and seek a determination about whether his increased damage claim is based on newly discovered evidence at the appropriate time.

( Order, 6:3-5.) Thus, unlike Lehman, where plaintiff was arguably encouraged by defense counsel to dismiss the case, Alexander's decision to dismiss Alexander I was based on his or his counsel's strategy. Accordingly, equitable tolling does not apply to this case.[2]


For the foregoing reasons, the Court GRANTS Defendant United States' motion to dismiss [Doc. 6], and ORDERS this case DISMISSED WITHOUT LEAVE TO AMEND. In light of this order, Plaintiff's motion for leave to amend [Doc. 12] is TERMINATED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.