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A.A. v. United States

United States District Court, S.D. California

April 4, 2017

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.



         On June 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.)

         On 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 11.)

         On 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.


         Plaintiff 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.)

         By way 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.)

         On June 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.)

         Regardless 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).

         In 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.[1] Fed.R.Civ.P. 6(a) (2009).

         In 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 limitations. (Id.)

         Defendant 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.)


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