United States District Court, D. South Dakota, Western Division
RONDA HALVORSON, as Special Administrator of the Estate of KENNETH HOLST, Deceased, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
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.
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.
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.
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).
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
Plaintiff filed the present case with this court on May 10,
2018. (Docket 1).
objects to two of the magistrate judge's legal
conclusions. As summarized by the court, the objections
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.
court will examine each objection in turn.
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).
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)).
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
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).
statutes create the following procedural schedule ...