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Romero v. United States

United States District Court, D. New Mexico

March 15, 2018


          Scott E. Borg Barber & Borg, LLC Albuquerque, NM Attorneys for the Plaintiff

          James D. Tierney Acting United States Attorney Roberto D. Ortega Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Defendant


         THIS MATTER comes before the Court on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed May 3, 2017 (Doc. 8)(“MTD”). The primary issue is whether the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (“FTCA”), which waives Plaintiff United States' sovereign immunity in circumstances where a private person would be liable, means that New Mexico Medical Malpractice Act's statute of repose, N.M. Stat. Ann. § 41-5-13, applies to FTCA claims. The Court concludes that New Mexico's statute of repose does not apply to FTCA claims, because the FTCA's sovereign immunity waiver looks to state law to determine whether an event renders the United States liable and not to determine whether a particular claim is timely filed. Accordingly, the Court concludes that the FTCA waives the United States' sovereign immunity in this case and denies the MTD.


         On June 28, 2010, Romero, a member of the Laguna Tribe, see Complaint Under the Federal Tort Claims Act for Damages Caused by Negligence ¶ 16, at 3, filed January 27, 2017 (Doc. 1)(“Complaint”), checked into Acoma Canoncito Laguna Hospital (“Laguna Hospital”) complaining of abdominal pain, nausea, and vomiting, see Complaint ¶ 18, at 3. Laguna Hospital gave Romero pain medication and released him. See Complaint ¶ 18, at 3. Romero returned to Laguna Hospital two days later reporting identical symptoms. See Complaint ¶ 19, at 3. This time, Laguna Hospital diagnosed Romero with possible sepsis, and Romero was airlifted to a “tertiary facility” in Albuquerque, New Mexico. Complaint ¶ 19, at 3. The tertiary facility diagnosed Romero with septic shock “from an intra-abdominal catastrophe, ultimately due to a perforated appendix with feculent peritonitis.” Complaint ¶ 20, at 3. Over the next several weeks, Romero was kept on full ventilator support, underwent multiple surgeries, and “was left with an ileostomy drainage bag.” Complaint ¶ 20, at 3-4.

         Romero was incarcerated “in late 2010, until 2012, and then he was incarcerated again within a matter of about 4-5 months.” Response at 2. Romero filed a claim with the Department of Health and Human Services (“HHS”) on March 21, 2012. See Complaint ¶ 10, at 2. HHS denied Romero's claim in writing on or about April 27, 2016. See Complaint ¶ 11, at 2. Romero filed a request with HHS for reconsideration on June 29, 2016, see Complaint ¶ 13, at 3, while he was incarcerated in Towaoc, Colorado, see Response at 2. HHS denied the request in writing on July 27, 2016. See Complaint ¶ 13, at 3. Romero was released from jail on September 16, 2016. See Response at 2.


         Romero filed his Complaint pursuant to the FTCA on January 27, 2017, alleging that Laguna Hospital staff members negligently misdiagnosed his condition. See Complaint ¶ 27, at 4-5. Romero seeks compensatory damages for Laguna Hospital's employee's negligence. See Complaint ¶¶ 1, 32, at 1, 6. Romero asserts that the Court has federal-question jurisdiction, because he brings claims under the FTCA. See Complaint ¶ 2, at 1.

         1. The Motion to Dismiss.

         In its MTD, the United States asserts that Romero must file a notice of claim within both the FTCA's statute of limitations and within the New Mexico Medical Malpractice Act's (“NMMMA”), N.M. Stat. Ann. §§ 41-5-1 to -29 statute of repose. See MTD at 4. The United States argues that the Court should dismiss the Complaint for lack of subject-matter jurisdiction, because Romero did not file his Complaint within the New Mexico statute of repose's time limit. See MTD at 4-10. The United States contends that the FTCA waives sovereign immunity only under circumstances where state laws would hold a private individual liable for comparable acts. See MTD at 6-7. According to the United States, a statute of repose “creates a substantive right in those protected to be free from liability after a legislatively-determined period of time. It follows that a statute of repose, as substantive state law that defines when a cause of action no longer exists, is applicable in FTCA actions.” MTD at 6 (citing Alexander v. Beech Aircraft Corp., 952 F.3d 1215, 1223 (10th Cir. 1991)). Consequently, the United States asserts, the Court lacks subject-matter jurisdiction on this case unless Romero's claims satisfy the statute of limitations and the statute of repose. See MTD at 7. The United States then argues that Romero's claims do not satisfy New Mexico's statute of repose. See MTD at 8-10

         2. The Response.

         Romero filed a response on May 30, 2017. See Response to Defendant's Motion to Dismiss (Doc. 8), filed May 30, 2017 (Doc. 12)(“Response”). First, Romero argues that the statute of repose does not bar his FTCA claims, because New Mexico's statute of repose applies only to claims brought under the NMMMA, against “healthcare providers who actively opt to buy into the act's funding and other provisions.” Response at 1-2.

         Second, Romero argues that the FTCA implicitly preempts New Mexico's statute of repose, because the statute of repose “stands as a significant impediment to the federal scheme.” Response at 6. For instance, Romero notes that the FTCA provides that, if more than six months have passed without an agency resolution, a claimant may take his or her claim to federal court “at any time thereafter, ” Response at 6 (quoting 28 U.S.C. § 2675); he adds that New Mexico's three-year statute of repose “significantly limit[s] this option, ” Response at 6. Romero outlines some scenarios that underscore the problems with applying New Mexico's statute of repose to FTCA claims:

[U]nder the facts of this case, plaintiff could have filed his Form 95 at any time up to the second anniversary of the claimed harm. If he took the full amount of available time, he could have presented his tort notice until June 28, 2012, at which time the federal statute of limitations would bar his claim. He could not have filed his lawsuit at any time prior to six months after he submitted his Form 95, so if the state statue is applied, he would have had only six months within which to file a federal court lawsuit. The FTCA gives him the option of continuing the administrative process and not having to be rushed into litigation. In another example, let's say plaintiff did not discover his injury and what might have caused it for a few years, and thus filed his lawsuit shortly after the third anniversary of the negligence, even though he filed his administrative claim before the repose period ended. His claim would be wiped out, he would never have an opportunity to pursue his claim, and the purpose of the FTCA defeated. He would have complied with the FTCA, but due to no fault on his part his legal right would be wiped out.

         Response at 6-7. Romero states that the Tenth Circuit has not considered whether the FTCA preempts state statutes of repose, see Response at 5, but one United States Circuit Courts of Appeal and federal district courts have concluded that it does, see Response at 7-10 (citing Kennedy v. United States, 526 F. App'x 450, 458 (6th Cir. 2013)(White, J., concurring); McKinley v. United States, 2015 WL 5842626, at *13 (M.D. Ga. Oct. 5, 2015)(Lawson, J.); Cooper v. United States, 2013 WL 6845988 at *5 (E.D. Penn. Dec. 30, 2013)(Goldberg, J.); Blau v. United States, 2013 WL 704762, at *1 (M.D. Fla. Feb. 26, 2013)(Lazzara, J.); Abila v. United States, 2012 WL 4711952 at *4 (D. Nev. Oct. 3, 2012)(Dawson, J.); Mamea v. United States, 2011 WL 4371712 at *10 (D. Haw. Sept. 16, 2011)(Kobayashi, J.); Jones v. United States, 789 F.Supp.2d 883, 892 (M.D. Tenn. 2011)(Haynes, Jr., J.); Zander v. United States, 786 F.Supp.2d 880, 885-86 (D. Md. 2011)(Williams, Jr., J.)). Romero contends that most cases applying the statute of repose do not address FTCA preemption. See Response at 10 n.3 (citing Smith v. United States, 430 F. App'x. 246, 247 (5th Cir. 2011)(per curium); Stinnett v. United States, 891 F.Supp.2d 858, 867-68 (M.D. Tenn. 2012)(Trauger, J.)); Simkins v. United States, 2011 WL 9368972, at **2-3 (C.D. Cal. Feb. 17, 2011)(Wright, II, J.).

         Third, Romero contends that 28 U.S.C. § 2674 does not help the United States in this case. See Response at 10. Romero contends that although § 2674 limits liability against the United States “in the same manner and to the same extent as a private individual under like circumstances, ” the United States is not in a comparable position as an private individual defendant would be. Response at 10 (quoting 28 U.S.C. § 2674). Romero contends, for example, that a plaintiff proceeding under the FTCA has “distinct obligations that a plaintiff in state court does not have, ” like a requirement to exhaust administrative remedies. Response at 10-11. Romero also contends that applying a state's statute of repose to an FTCA lawsuit would mean that an FTCA plaintiff would have to file an administrative claim earlier than a plaintiff suing an individual would have to file a complaint, which means that “the circumstances are not alike.” Response at 11.

         Fourth, Romero contends that the United States would not be prejudiced if the Court does not apply the statute of repose, because the United States received notice of his lawsuit within two years of the alleged harm and possess relevant documentary records pertaining to Romero's claim. See Response at 11. Consequently, Romero concludes that applying New Mexico's statute of repose “serves no valid purpose.” Response at 11-12.

         3. The Reply.

         The United States filed a reply on June 13, 2017. See Reply to Plaintiff's Response to Motion to Dismiss, filed June 13, 2017 (Doc. 13)(“Reply”). First, the United States argues that the Tenth Circuit has determined that NMMMA applies to the federal government. See Reply at 2 (citing Haceesa v. United States, 309 F.3d 722, 728 (10th Cir. 2002)). Second, the United States argues that the FTCA does not preempt New Mexico's statute of repose impliedly or expressly, because nothing in the FTCA overcomes the presumption that federal laws do not supplant state laws. See Reply at 2-3. Third, the United States contends there is no conflict between the FTCA's statute of limitations and New Mexico's statute of repose, because it is possible to satisfy both provisions. See Reply at 3. Fourth, the United States argues that the cases which Romero cites “appear to ignore the explicit incorporation of state substantive law into the FTCA and the fact that a plaintiff can, and must, comply with both the FTCA statute of limitations under 28 U.S.C. § 2401 and the New Mexico statute of repose.” Reply at 3-4. Moreover, the United States asserts that the only United States Courts of Appeal to consider the question concluded that the FTCA's statute of limitations does not preempt state statutes of repose. See Reply at 4 (citing Augutis v. United States, 732 F.3d 749, 753-54; Huddleston v. United States, 485 F. App'x 744, 745 (6th Cir. 2012)(unpublished); Anderson v. United States, 669 F.3d 161, 165 (4th Cir. 2011)). Fifth, the United States contends that Romero's arguments are flawed, because he conflates statutes of limitations with statutes of repose, which are “plainly different legal principals.” Reply at 4-5. Sixth, the United States argues that there is no sound basis upon which the Court may apply equitable tolling to Romero's claims, because statutes of repose cannot be tolled. See Reply at 6-7. The United States asserts that, even if the Court applies equitable tolling, Romero has not presented an adequate basis for such relief. See Reply at 7.

         LAW REGARDING RULE 12(b)(1)

         “Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994)(citations omitted). A plaintiff generally bears the burden of demonstrating the court's jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998)(“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) allows a party to raise the defense of the court's “lack of jurisdiction over the subject matter” by motion. Fed.R.Civ.P. 12(b)(1). The Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F .3d 1173, 1180 (10th Cir. 2002).

On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint's allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Hill v. Vanderbilt Capital Advisors, LLC, No. CIV 10-0133, 2011 WL 6013025, at *8 (D.N.M. Sept. 30, 2011)(Browning, J.)(quoting Alto Eldorado Partners v. City of Santa Fe, 2009 WL 1312856, at *8-9). The United States Court of Appeals for the Fifth Circuit has stated:

[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction --its very power to hear the case -- there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981)(quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).

         When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). In those instances, a court's reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). Where, however, the court determines that jurisdictional issues raised in a rule 12(b)(1) motion are intertwined with the case's merits, the court should resolve the motion under either rule 12(b)(6) of the Federal Rules of Civil Procedure or rule 56 of the Federal Rules of Civil Procedure. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir. 1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997). “When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.'” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003)(quoting Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002)).


         It is “axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983)(citations omitted). See Garcia v. United States, 709 F.Supp.2d 1133, 1137 (D.N.M. 2010)(Browning, J.)(“The United States cannot be sued without its consent.”); id. at 1137-38 (“Congressional consent -- a waiver of the traditional principle of sovereign immunity -- is a prerequisite for federal-court jurisdiction.”). The law generally places the burden of proving federal jurisdiction on the proponent of jurisdiction, and the party bringing suit against the United States thus similarly bears the burden of proving that sovereign immunity has been waived. See James v. United States, 970 F.2d 750, 753 (10th Cir. 1992). See also Garcia v. United States, 709 F.Supp.2d at 1138 (“The plaintiff bears the burden of proving that Congress has waived sovereign immunity for all of his claims.”). A waiver of sovereign immunity cannot be implied and must be unequivocally expressed. See United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34 (1992); United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Murdock Mach. & Eng'g Co. of Utah, 81 F.3d 922, 930 (10th Cir. 1996).

         The Tenth Circuit has emphasized that all dismissals for lack of jurisdiction, including those for a failure to establish a waiver of sovereign immunity under the FTCA, should be without prejudice. See Mecca v. United States, 389 F. App'x 775, 780 (10th Cir. 2010)(unpublished). It has explained: “A longstanding line of cases from this circuit holds that where the district court dismisses an action for lack of jurisdiction . . . the dismissal must be without prejudice.” Mecca v. United States, 389 F. App'x at 780 (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006)). The Tenth Circuit held in Mecca v. United States that the district court improperly dismissed with prejudice the plaintiff's FTCA claims after it concluded that it lacked jurisdiction over those claims. See 389 F. App'x at 780-81 (“Here, because the district court found itself without jurisdiction over the FTCA claims, dismissal should have been entered without prejudice, even if the court deemed further amendment futile. We therefore remand with instructions to enter dismissal of these claims without prejudice.”).

         The FTCA waives the United States' sovereign immunity for some tort actions against the United States seeking money damages. See Romanach v. United States, 579 F.Supp. 1017, 1019 (D.P.R. 1984)(Laffitte, J.). In enacting the FTCA, Congress waived the United States' sovereign immunity as to

claims against the United States, for money damages accruing on and after January 1, 1945, 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 office or employment, under circumstances where the United States, if a private person, would be held ...

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