United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's motion to
dismiss [Doc. #15], pursuant to Fed.R.Civ.P. 12(b)(1) and
(6). Plaintiff has responded in opposition and the issues are
brings this action to recover damages resulting from the
death of her husband, Kenneth Allen, Sr. In the complaint,
plaintiff alleges that Allen died on May 8, 1996 after
undergoing a thoracentesis procedure performed by Wendy
Brown, M.D., a physician at the John Cochran V.A. Medical
Center in St. Louis, Missouri. According to the complaint,
plaintiff and her family were led to believe that Allen had
died of natural causes. However, when plaintiff applied for
V.A. benefits in December 2013, she learned that Allen's
death was the result of Brown's negligence in performing
August 2014, plaintiff submitted a Federal Tort Claims Act
(FTCA) claim to the Department of Veteran Affairs. The claim
was denied in February 2015. Plaintiff submitted a request
for reconsideration in May 2015 and received no response. The
instant complaint was filed on April 29, 2016.
moves to dismiss the complaint for lack of subject-matter,
arguing that the claim is time-barred by the Missouri statute
of repose. Plaintiff argues that this action is governed by
the FTCA-not Missouri law-with respect to the limitations
period and equitable tolling.
of an action for lack of subject-matter jurisdiction is
mandated by the Federal Rules of Civil Procedure. Rule
12(h)(3) (“If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.”). “In order to properly dismiss for lack
of subject matter jurisdiction under Rule 12(b)(1), the
complaint must be successfully challenged on its face or on
the factual truthfulness of its averments.” Titus
v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing
Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th
Cir. 1990)). In a facial challenge to jurisdiction, all of
the factual allegations concerning jurisdiction are presumed
to be true and the motion is successful if the plaintiff
fails to allege an element necessary for subject matter
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the legal sufficiency of the complaint. Fed.R.Civ.P.
12(b)(6). The factual allegations of a complaint are assumed
true and construed in favor of the plaintiff, “even if
it strikes a savvy judge that actual proof of those facts is
improbable.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v.
Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6)
does not countenance . . . dismissals based on a judge's
disbelief of a complaint's factual allegations.”);
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (stating
that a well-pleaded complaint may proceed even if it appears
“that a recovery is very remote and unlikely”).
The issue is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present
evidence in support of his claim. Scheuer, 416 U.S.
at 236. A viable complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570; see
Id. at 563 (stating that the “no set of
facts” language in Conley v. Gibson, 355 U.S.
41, 45-46 (1957), “has earned its retirement”);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678-84
(2009) (holding that the pleading standard set forth in
Twombly applies to all civil actions).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555.
FTCA, 28 U.S.C. § 2671, was enacted by Congress as
“a limited waiver of the United States' sovereign
immunity, to permit persons injured by federal-employee
tortfeasors to sue the United States for damages in federal
district court.” Mader v. United States, 654
F.3d 794, 797 (8th Cir.2011) (en banc). “In relevant
part, the FTCA's liability and jurisdiction-conferring
language provides that federal district courts have
'exclusive jurisdiction' over claims against the
United States for money damages for 'personal injury or
death caused by the negligent or wrongful act or
omission' of federal employees 'under certain
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.”'
Id. (quoting 28 U.S.C. § 1346(b)(1); 28 U.S.C.
FTCA provides that “[t]he United States shall be liable
... to tort claims, in the same manner and to the same extent
as a private individual under like circumstances[.]” 28
U.S.C. § 2674. Thus, liability under the FTCA attaches
only where state law would impose liability on a private
individual in similar circumstances. First Nat'l Bank
in Brookings v. United States, 829 F.2d 697, 700 (8th
Cir. 1987). To this end, the law of the state in which the
negligence arises-in this case, Missouri- “provides the
source of substantive liability under the FTCA.”
Sorace v. United States, 788 F.3d 758, 763 (8th Cir.
2015); Bagley v. United States, ___ F.Supp.3d ___,
2016 WL 6082023, at *2 (D. Neb. Oct. 18, 2016) (explaining
that the FTCA's two-year statute of limitations for
medical malpractice actions preempts a state's statute of
limitations, which is procedural, but not a state statute of
repose that is substantive).
state substantive law establishes and defines a claim under
the FTCA, federal law defines the limitations period and
determines when the claim accrues. See Reilly v. United
States, 513 F.2d 147 (8th Cir. 1975); see also
Miller v. United States, 932 F.2d 301, 303 (4th Cir.
1991) (citing Washington v. United States, 769 F.2d
1436, 1437-38 (9th Cir. 1985)). The FTCA has a two-year
limitations period, which, in medical malpractice actions,
accrues when “the claimant discovers, or in the
exercise of reasonable diligence should have discovered, the
acts constituting the alleged malpractice upon which the
cause of action is based.” Reilly, 513 F.2d at
dispute touches on a fundamental difference between statutes
of limitation and statutes of repose. While a statute of
limitation is a procedural defense to a legal claim,
a statute of repose creates a substantive right to
be free from liability. See Nesladek v. Ford Motor
Co., 46 F.3d 734, 737 (8th Cir. 1995); see also
Lampf, Pleva, Lipkind, Prupis & Petigrow v.
Gilbertson, 501 U.S. 350, 355, 111 S.Ct. 2773, 115
L.Ed.2d 321 (1991) (courts apply the state's statute of
limitations only when “Congress has failed to provide a
statute of limitations for [the] federal cause of
action.”). And, because the FTCA incorporates only
state substantive law, ...