United States District Court, S.D. California
A.A., a minor, by and through his Guardian ad Litem, LORENA ARREOLA, Plaintiff,
UNITED STATES OF AMERICA, and DOES 1 through 20, inclusive, Defendants.
ORDER: 1) GRANTING DEFENDANT'S MOTION TO
RECONSIDER, AND 2) GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT [DOC. NOS. 19, 32]
MARILYN L. HUFF, UNITED STATES DISTRICT JUDGE
3, 2015, Plaintiff A.A., through his mother and guardian,
Lorena Arreola, filed this action, asserting a single cause
of action under the Federal Tort Claims Act
("FTCA"), 28U.S.C. §§ 2671, et
seq., 1346(b), et seq., 1367, 1402(b), et
seq. (Doc. No. 1.) Plaintiff alleges that Ms. Arreola
received negligent prenatal care at Vista Community Clinic, a
community health center supported by the Department of Health
and Human Services ("HHS"). (14 at 2-6,
¶¶ 4, 12-29.)
December 9, 2016, Defendant United States of America filed a
motion for summary judgment, arguing that Plaintiffs claim
was barred by the statute of limitations and the rule
requiring plaintiffs to first present their claims to
defendant agencies. (Doc. No. 19.) On February 9, 2017, the
Court denied Defendant's motion for summary judgment.
(Doc. No. 28.) In its summary judgment order, the Court held
that there was a triable issue of material fact as to whether
the claim was properly presented to the agency. (Id.
at 8-9.) And construing the facts in the light most favorable
to the non-moving party, the Court determined that the claim
may have been presented only a day late. (Id. at
10.) The Court equitably tolled the statute of limitations,
finding sufficient diligence and extraordinary circumstances
to justify one day of equitable tolling. (Id. at
March 7, 2017, Defendant filed a motion for reconsideration,
arguing that the Court's order on equitable tolling was
inconsistent with the Ninth Circuit's recent decision in
Okafor v. United States, 846 F.3d 337 (9th Cir.
2017). (Doc. No. 32.) Plaintiff filed an opposition on March
27, 2017. (Doc. No. 36.) Defendant filed a reply on April 3,
2017. (Doc. No. 37.) The Court, pursuant to its discretion
under Local Rule 7.1(d)(1), determines that the motion is fit
for resolution without oral argument, submits the motion on
the papers, and vacates the hearings set for April 10, 2017.
For the reasons that follow, the Court grants Defendant's
motion for reconsideration. Accordingly, the Court grants
Defendant's previous motion for summary judgment.
A. A. brings this action to recover damages for injuries he
allegedly suffered as a result of being born prematurely on
June 6, 2007. Plaintiff filed this action on June 3, 2015,
eight years after his birth, through his mother and guardian
Lorena Arreola. (Doc. No. 1.) During her pregnancy with A.A.,
Ms. Arreola sought prenatal care at Vista Community Clinic
("VCC"), a community health center supported by
UHS. (Doc. No. 19-2 at 10.) Plaintiff alleges that VCC
provided negligent care to Ms. Arreola, causing A. A. to be
born four months before his due date. (Doc. Nos. 1 at 5-6,
¶¶ 23-29; 19-2 at 41, 59.)
of background, Ms. Arreola had two miscarriages prior to her
pregnancy with A.A., one at approximately 12 weeks, and the
second at approximately 17.5 weeks. (Doc. No. 19-2 at 7-8.)
Following her second miscarriage, Ms. Arreola was told that
she had a weak cervix and should consider getting a cerclage
for future pregnancies. (Id. at 9.) A cerclage is a
technique whereby a suture is placed in the cervix to prevent
the mother from going into labor and delivering too early.
(Id. at 43-44.) According to her doctor at VCC, the
window to perform an elective cerclage is when a patient is
between 14 and 18 weeks of gestation. (Id. at 45.)
Ms. Arreola was already at 20 weeks and two days of gestation
when she presented at VCC and received an ultrasound.
(Id.) On May 22, 2017, Ms. Arreola's doctor and
another specialist ruled out an emergency cerclage based on
an ultrasound showing Ms. Arreola's cervix to be thick
and closed. (Id. at 43; 48-49.) A.A. was born
prematurely on June 6, 2007. (Id. at 59.)
4, 2009, Plaintiffs law firm mailed a claim to HHS for $20
million in damages under the FTCA. (Doc. Nos. 20-2, ¶ 1;
19-2 at 59-64.) The claim was sent by certified mail to the
"Parklawn Building, " in Rockville Maryland. (Doc.
No. 19-2 at 59, 62.) The claim lists 500 Fishers Lane as the
HHS address (id at 59), but the certified mail receipt only
lists "Parklaw [sic] Bldg." with no street address
(id at 62). Plaintiff submitted a declaration stating that
the claim was sent to 5600 Fishers Lane, the intended
address, as opposed to 500 Fishers Lane, the address listed
on the claim. (Doc. Nos. 20 at 3; 20-1 ¶ 3.)
of the address, the HHS claims office had left the Parklawn
Building four years before (Doc. No. 19-3, ¶ 4), but
divisions of HHS still operated in the building in 2009.
(Doc. No. 31 at 7.) The claim was sent from San Diego,
California to Rockville, Maryland after 3:00 p.m. on
Thursday, June 4, 2009. (Doc. Nos. 19-2 at 61-62; 20-2 ¶
1.) The two-year time period would have ended on June 7,
2009, which was a Sunday. Fed.R.Civ.P. 6(a)(1) (2009);
see also. Hart v. United States, 817 F.2d
78, 80 (9th Cir. 1987) (Rule 6(a) dictates how to compute
time under the FTCA's statute of limitations). The period
would then have run until the end of the next non-holiday on
Monday June 8, 2009. Fed. R Crv. P. 6(a)(3) (2009).
attempting to timely file the claim, Plaintiffs counsel
relied on the United States Postal Service website, which
purportedly stated that first class mail is delivered in
"3 business days or less." (Doc. No. 20 at 5.) The
return receipt indicates that the claim was delivered to the
"Parklaw [sic] Bldg." on Tuesday, June 9, 2009.
(Doc. No. 19-2 at 62.) The delivery was one day
late. Fed.R.Civ.P. 6(a) (2009).
sending the claim to an out-of-date address, Plaintiffs
counsel relied on a letter he had received from HHS five
years prior for a different lawsuit against VCC. (Doc. No.
20-1, ¶ 3.) The letter informed counsel that because VCC
is a federally supported health facility, the FTCA is the
exclusive remedy for injuries caused by employees of the
health center. (Doc. No. 20 at 8.) The letter also informed
counsel that the FTCA provides a two year statute of
contends that HHS never received Plaintiffs claim. (Doc. No.
19-3 ¶ 6.) The parties agree that HHS never sent
Plaintiff an acknowledgment of the claim. (Id. at
¶ 7; Doc. No. 1 at 2, ¶ 7.) After attempting to
submit the claim in 2009, Plaintiff waited six years before
filing this action. (Id., ¶¶ 6-8; Doc. No.
26, ¶ 2.)