OLD NATIONAL TRUST COMPANY, personal representative of the Estate of Kenneth E. Boyles, and LEA ANN BOYLES, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
Michael J. Reagan United States District Judge.
A. Introduction and Procedural Overview
This case is brought under the Federal Tort Claims Act, 28 U.S.C. 2671, et seq., which provides that the United States shall be liable on tort claims in the same manner and to the same extent as a private individual or entity “under like circumstances, ” subject to certain limitations. 28 U.S.C. 2674. The suit challenges the treatment received by Kenneth Boyles (starting in January 2005) at a Veterans Affairs hospital in Marion, Illinois and a Veterans Affairs clinic in Evansville, Indiana.
Count I of the original complaint alleged that the United States of America and Eric Shinseki, Secretary of the U.S. Department of Veterans Affairs, acted negligently by misdiagnosing and improperly treating a lump on the right side of Kenneth Boyles’ neck as an enlarged neck muscle. (In July 2007, a private provider operated on Kenneth and diagnosed Stage IV squamous cell carcinoma on the right side of Kenneth’s neck.) Count II alleged a loss of companionship and household services claim by Kenneth’s wife, Lea Ann Boyles. The complaint – which sought $5, 000, 000.00 in damages -- was filed in June 2011 in the United States District Court for the Southern District of Indiana, roughly two and a half years after the Boyles had filed an administrative claim with the Veterans Affairs Administration (VA).
On March 1, 2012, the Indiana federal court granted a motion to transfer the case to the Southern District of Illinois, where it was randomly assigned to Judge J. Phil Gilbert, District Judge, and Donald J. Wilkerson, Magistrate Judge. Judge Gilbert dismissed Secretary Shinseki in May 2012, since the United States is the only proper defendant in an FTCA case. See Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008).
In January 2013, Kenneth Boyles died. On April 15, 2013, Magistrate Judge Wilkerson granted Plaintiffs’ motion to amend the complaint and substitute Old National Trust Company (the personal representative of the estate of Kenneth Boyles) in place of Kenneth Boyles. An amended complaint was filed on April 16, 2013, with Old National and Lea Ann Boyles as Plaintiffs and the USA as Defendant. The amended complaint seeks $10, 000, 000.00 in damages (Doc. 53, p. 8).
Judge Gilbert recused shortly thereafter, and the case was randomly reassigned to the undersigned District Judge. Now before the Court is Defendant USA’s June 5, 2013 motion to dismiss, or in the alternative, for summary judgment to which Plaintiffs responded June 25, 2013. The USA declined to file a permitted reply brief by the July 22, 2013 deadline set by the Court (see Doc. 78). For the reasons set forth below, the Court grants the USA’s motion.
B. Applicable Legal Standards
Analysis begins with reference to the relevant legal standards. The USA asks the Court to dismiss Plaintiffs’ amended complaint without prejudice for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) or grant summary judgment under Federal Rule of Civil Procedure 56, if the Court needs to look outside the pleadings to examine Plaintiffs’ underlying administrative claim (see Doc. 72, pp. 1-2). Plaintiffs respond as if the motion seeks only dismissal, not summary judgment.
The amended complaint (Doc. 53, pp. 1-2) alleges that Plaintiff filed an administrative claim with the VA on December 2, 2008, and more than six months passed since the filing of Plaintiffs’ standard form 95 notice to the VA. Neither side’s arguments require examination of the administrative claim itself, and the undersigned Judge need not delve into the particulars of that claim (Doc. 73), so the pending motion need not be treated as seeking summary judgment. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment...”). See also Santana v. Cook County Bd. of Review, 679 F.3d 614, 619 (7thCir. 2012); Gray v. U.S., -- F.3d --, 2013 WL 3796243 n.1 (7th Cir. July 23, 2013) (“in a typical case it would be inappropriate on a motion to dismiss to consider materials outside the complaint, including the administrative claim itself.”).
In deciding a motion to dismiss for failure to state a claim on which relief can be granted under Rule 12(b)(6), the Court’s task is to determine whether the complaint includes “enough facts to state a claim to relief that is plausible on its face.” Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Post-Twombly, “courts must still approach motions under Rule 12(b)(6) by ‘construing the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in her favor.’” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009), cert. denied, 558 U.S. 1148 (2010), quoting Tamayo v. Blagoyevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Legal conclusions and conclusory allegations that merely recite the elements of a claim are not entitled to the presumption of truth afforded to well-pled facts. See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
The FTCA, 28 U.S.C. 2671, et seq., is a limited waiver of the immunity otherwise enjoyed by the United States as a sovereign entity. Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2012), citing Dolan v. U.S. Postal Service, 546 U.S. 481, 484 (2006). The FTCA “opens the federal government to tort 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.’” LeGrande v. United States, 687 F.3d 800, 808 (7th Cir. 2012), quoting 28 U.S.C. 1346(b).
The FTCA delineates procedural rules, including the requirement that a plaintiff take his claim to the appropriate federal agency (within a given time period) before filing suit in federal court. More specifically, 28 U.S.C. 2675(a) provides that an action shall not be instituted against the United States upon a claim for money damages based on personal injury or death caused by the negligence of any Government employee acting within the scope of his employment, “unless the claimant shall have first ...