The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff J. Guadalupe Guzman, the administrator for the estate of Yolanda Guzman, asserts an action under the Federal Tort Claims Act ("FTCA") against the United States and its agents, Aunt Martha's Youth Service Center, Inc., ("Aunt Martha's") and Dr. Victoria Adeleye M.D.*fn1 Plaintiff alleges that Defendants' negligence and failure to diagnose and treat Yolanda Guzman for pneumonia in December 2003 resulted in Yolanda's death. The government moves to dismiss the action because, it contends, Plaintiff has failed to exhaust administrative remedies and the claims are time-barred. For the reasons explained below, Defendants' motion to dismiss is granted.
Because this case comes before the court on a Rule 12 motion to dismiss, the court accepts the complaint's well-pleaded facts as true and draws all reasonable inferences in Plaintiff's favor. Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003). The court recounts the facts, paying particular attention to the procedural history of this case, as they appear in the complaint and its attachments.
In December 2003, Adeleye was employed as a physician at Aunt Martha's, a federally funded medical facility. (Compl. ¶ 16-17.) The complaint alleges that Adeleye failed to admit and treat Yolanda Guzman for pneumonia on December 11, 2003, resulting in Yolanda's death ten days later. (Compl. at ¶ 19-20.) Plaintiff filed suit against Adeleye and Aunt Martha's in the Circuit Court of Kane County, Illinois on December 1, 2005. The United States, which funds Aunt Martha's and employed Adeleye, substituted for those Defendants and removed the case to federal court in February 2006. (Id. at ¶ 1; Notice of Removal, Ex. A. to Compl.) The government certifies that both Adeleye and Aunt Martha's are agents of the United States for the purposes of Plaintiff's claim under the FTCA. (Certification, Ex. B. to Compl.)*fn2
On April 5, 2006, this court dismissed the case without prejudice because Plaintiff had failed to exhaust available administrative remedies prior to filing suit in state court, as required by the FTCA. (Order, Ex. B. to Compl.) Approximately seven months later, on November 16, 2006, Plaintiff presented its administrative claim in writing to the Department of Health and Human Services ("the Department"). (Administrative Claim Letter, Ex. C to Compl.) The Department denied Plaintiff's administrative claim in its decision letter dated April 18, 2007. (Id.) The decision letter indicated that Plaintiff had failed to comply with the FTCA's statutory deadlines and advised that Plaintiff was entitled to seek review of that decision either by way of a request for agency reconsideration or by commencing suit in federal district court. (Id.) Plaintiff filed a request for agency reconsideration, which the Department denied by letter dated June 20, 2007. (Reconsideration Letter, Ex. D to Compl.)*fn3
Plaintiff reinstated his lawsuit in this court on December 3, 2007, but moved shortly thereafter for voluntary dismissal of his claims. (Motion, Ex. E to Compl.; Order, Ex. F to Compl.) The court granted Plaintiff's motion to voluntarily dismiss without prejudice on January 28, 2008. (Order, Ex. F to Compl.) On January 27, 2009, Plaintiff re-filed his lawsuit based on the same allegations. The government now asks the court to dismiss the case on the ground that Plaintiff has failed to timely pursue and exhaust administrative remedies.
I. The Federal Tort Claims Act
The Federal Tort Claims Act is a limited waiver of the sovereign immunity of the United States that imposes liability "under 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." 28 U.S.C. § 1346(b)(1); Warrum v. United States, 427 F.3d 1048, 1049-50 (7th Cir. 2005.) As a condition of this limited waiver, the FTCA imposes its own procedural rules upon would-be plaintiffs, including a requirement that potential plaintiffs exhaust federal administrative remedies before filing a lawsuit. Warrum, 427 F.3d at 1050. Specifically, the Act mandates that no tort action may be brought against the United States unless the claimant has first presented his claim to the appropriate federal agency:
An action shall not be instituted upon a claim against the United States for money damages 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, 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.
28 U.S.C. § 2675(a). 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 of the claim's accrual or unless action is begun within six months after the date of mailing of a final denial of a claim by the agency to which it was presented. 28 U.S.C. § 2401(b).
The Westfall Act, which amended the FTCA in 1988, incorporated a savings clause into the exhaustion requirement's time limitation. The savings clause acts to protect plaintiffs who miss the two-year deadline because they mistakenly file otherwise-timely claims in an incorrect forum (i.e. by bringing a civil action in state court before presenting an administrative claim to a federal agency). 28 U.S.C. § 2679(d)(5); Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3rd Cir. 2009). In such circumstances, a plaintiff's claim is deemed timely if she properly presents her administrative claim before the appropriate federal agency within 60 days after the dismissal of her initial civil action, so long as the civil action was itself commenced within two years of the accrual of the claim. 28 U.S.C. § 2679(d)(5).
The purpose of these deadlines, and the administrative exhaustion requirement generally, is "to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States." Adams v. United States, 615 F.2d 284, 288 (5th Cir. 1980)(quoting S. REP. NO. 1327, 89th Cong., 2d Sess. ...