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Halvorson v. United States

United States District Court, D. South Dakota, Western Division

March 31, 2019

RONDA HALVORSON, as Special Administrator of the Estate of KENNETH HOLST, Deceased, Plaintiff,




         This case stems from decedent Kenneth Holst's alleged wrongful death. Plaintiff Ronda Halvorson brought suit under the Federal Tort Claims Act (“FTCA”), alleging decedent's death was caused by employee negligence at the Department of Veterans Affairs (“VA”) Fort Meade hospital in Sturgis, South Dakota. (Docket 1 at ¶¶ 31-39). As defendant, the United States moves to dismiss plaintiff's complaint on the grounds it was filed untimely, resulting in a lapse of the FTCA's waiver of sovereign immunity. (Docket 7). Plaintiff resists the motion. (Docket 16).

         The court referred the pending motion to Magistrate Judge Veronica L. Duffy pursuant to the court's standing order of October 16, 2014, and 28 U.S.C. § 636(b)(1) for a report and recommendation (“R&R”). (Docket 21). The magistrate judge issued an R&R concluding defendant's motion to dismiss should be granted. (Docket 22). Plaintiff timely objected to the R&R and defendant responded to the objections. (Dockets 23 & 24). Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. For the reasons given below, the court overrules plaintiff's objections in part and sustains them in part. The court denies defendant's motion to dismiss.


         I. Facts

         Neither party objected to the magistrate judge's factual findings. (Dockets 23 at p. 1 & 24 at p. 2). The court accordingly adopts the facts recited by the magistrate judge. (Docket 22 at pp. 2-6). For the purposes of resolving plaintiff's objections to the R&R, the court need only recite a few key facts.

         On May 19, 2015-when he was 84 years old-decedent went to the Fort Meade VA hospital for post-operative care. Id. at p. 3. On that day, he fell while in the hospital and fractured his pelvis. Id. at pp. 3-4. Plaintiff alleges the VA's negligence caused the fall and resulted in further injury, including pneumonia and a stroke. Id. at p. 4. This negligence shortened decedent's life span and caused his “untimely and wrongful death[.]” Id. at pp. 4-5; Docket 1 at ¶ 35. Decedent died on June 3, 2016. (Docket 17).

         Plaintiff was appointed special administrator of decedent's estate on May 9, 2017. (Docket 1 at ¶ 8). She presented her claim to the VA for administrative adjudication on May 17. Id. at ¶ 10. The six-month mark after plaintiff filed her administrative claim passed on November 17.[1] Plaintiff filed the present case with this court on May 10, 2018. (Docket 1).

         II. Plaintiff's Objections

         Plaintiff objects to two of the magistrate judge's legal conclusions. As summarized by the court, the objections argue:

1. The two-year limit for medical malpractice claims imposed by a South Dakota statute of repose, SDCL § 15-2-14.1, was tolled by an extender statute, SDCL § 29A-3-109. (Docket 23 at pp. 2-4).
2. The FTCA's timing provisions preempt the South Dakota statute of repose. Id. at pp. 4-8.

         The court will examine each objection in turn.

         III. Discussion

         A. Legal standards

         1. Rule 12(b)(1)

         Defendant argues the court lacks subject matter jurisdiction over plaintiff's FTCA claim. (Docket 7). Under Federal Rule of Civil Procedure 12(b)(1), a defendant has the right to challenge the “lack of subject-matter jurisdiction . . . .” Fed.R.Civ.P. 12(b)(1). While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court must “accept all factual allegations in the pleadings as true and view them in the light most favorable to the nonmoving party.” Great Rivers Habitat All. v. Fed. Emergency Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010). The court “has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1). . . . This does not . . . convert the 12(b)(1) motion to one for summary judgment.” Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 638 (8th Cir. 2003). “The burden of proving federal court jurisdiction is on the party seeking to invoke federal jurisdiction.” Mitchael v. Colvin, 809 F.3d 1050, 1053 (8th Cir. 2016) (citing Great Rivers, 615 F.3d at 988).

         2. FTCA

         “The United States is immune from suit unless it consents. Congress waived the sovereign immunity of the United States by enacting the FTCA, under which the federal government is liable for certain torts its agents commit in the course of their employment. The United States is, nevertheless, immune if an exception applies.” Hart v. United States, 630 F.3d 1085, 1088 (8th Cir. 2011). “Where the United States has not waived sovereign immunity under the FTCA, the district court lacks subject matter jurisdiction to hear the case.” Id. “The FTCA confers subject matter jurisdiction for suits against the United States in ‘circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' ” Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018) (quoting FDIC v. Meyer, 510 U.S. 471, 477 (1994)).

         The FTCA contains an interconnected statute of limitation and administrative adjudication requirement.

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after . . . notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b).

An action shall not be instituted upon a claim against the United States . . . 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 an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.

Id. at § 2675(a).

         These statutes create the following procedural schedule ...

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