United States District Court, N.D. Illinois, Eastern Division
GENERAL CASUALTY, a/s/o WILSON DELIVERY SERVICE, INC., Plaintiff,
UNITED STATES GOVERNMENT, d/b/a UNITED STATES POSTAL SERVICE Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Before the Court is a motion to dismiss  Plaintiff's complaint  filed by Defendant United States of America. For the reasons set forth below, the Court grants Defendant's motion .
The following facts are drawn from Plaintiff's complaint: On September 6, 2007, David Kick, then an employee of Wilson Delivery Service, Inc., was involved in a car accident with an employee of the United States Postal Service ("USPS") in the parking lot of a USPS branch in Palatine, Illinois. Plaintiff General Casualty Insurance Company, which provided workers' compensation insurance to Wilson Delivery employees, paid Kick $192, 889.54 for the medical expenses and lost wages that arose from Kick's injuries. Plaintiff sought to recover those monies from the United States, first by filing an unsuccessful administrative claim with USPS, and then by bringing a timely federal negligence lawsuit against the United States Government d/b/a United States Postal Service within six months of the denial of its administrative claim.
Although Plaintiff's complaint states that it "filed this action against the United States Government, d/b/a United States Postal Service within six months of the denial" of its administrative claim, (emphasis added), the Government's motion to dismiss points out (and Plaintiff concedes in its response) that that statement actually is not true. Govt MTD at p. 2-3; Pl. Opp. Br. at p. 2. In reality, USPS denied Plaintiff's administrative claim on May 31, 2011 and then denied Plaintiff's request for reconsideration on August 1, 2011 (the "final denial" of Plaintiff's administrative claim). Id. Plaintiff did file a lawsuit in the Northern District of Illinois within six months of the denial, (see Complaint  filed November, 29, 2011 in 11-cv-8498), but not this lawsuit. Id. In the prior case, Plaintiff filed a stipulation of dismissal at the close of fact discovery on October 3, 2012,  and Judge Kendall dismissed Plaintiff's case without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(iii). See Stipulation of Dismissal [12, 13] in 11-cv-8498.
On August 6, 2013, just over ten months later, Plaintiff brought this suit, in which it filed an identical complaint to the one it had filed in the earlier case assigned to Judge Kendall (which explains the complaint's errant use of the word "this, " referenced above). Govt MTD at p. 2-3; Pl. Opp. Br. at p. 2. The United States now moves to dismiss Plaintiff's complaint for failure to comply with the administrative exhaustion requirements of the Federal Tort Claims Act - namely, 28 U.S.C. § 2401(b)'s edict that a tort claim against the United States is "forever barred" unless brought within six months of a Federal agency's final denial of that claim.
II. Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). As previously noted, reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiffs' complaint and draws all reasonable inferences in their favor. Killingsworth, 507 F.3d at 618. To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level, " assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) ("Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.").
"In response to an ordinary 12(b)(6) motion, a court simply examines the allegations in the complaint to determine whether they pass muster." Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Usually, to consider matters outside the pleadings, our procedural rules require a court to treat a motion to dismiss as a motion for summary judgment and give the parties a reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Id. However, "[t]aking judicial notice of matters of public record need not convert a motion to dismiss into a motion for summary judgment." Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012). In addition, "a court may take judicial notice of [adjudicative] facts that are (1) not subject to reasonable dispute and (2) either generally known within the territorial jurisdiction or capable of accurate and ready determination through sources whose accuracy cannot be questioned." Id. at 773; Fed.R.Evid. 201(b). "Judicial notice is premised on the concept that certain facts or propositions exist which a court may accept as true without requiring additional proof from the opposing parties." Gen. Elec. Capital Corp., 128 F.3d at 1081.
Defendant seeks dismissal of Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Plaintiff's failure to bring this suit within six months of USPS's final agency decision mandates that result. General Casualty concedes both that 28 U.S.C. § 2401(b) affords a would-be Plaintiff just six months from the final denial of a claim by the agency to which it was presented and that the six-month clock in this case started ticking when USPS issued its final denial letter on August 1, 2011. But Plaintiff argues, in effect, that the timely filing of its complaint in 11-cv-8498 (on November 29, 2011) should satisfy the statute of limitations problem that otherwise would exist in this case. Without citing to a single case for support, Plaintiff argues that dismissing his suit on statute of limitations grounds would offend Rule 41(a)(1), which permitted Plaintiff to dismiss his first suit without prejudice to refiling. Fed.R.Civ.P. 41(a)(1). In Plaintiff's words: "[a]pplying Defendant's theory to this matter, and to other matters similarly situated, would essentially mean that Rule 41 of the Federal Rules of Civil Procedure serves no purpose since the statute of limitations pursuant to 28 U.S.C. § 2401(b) would have lapsed and a case dismissed by stipulation could not be re-filed." Pl. Opp. Br. at p. 3. The Court rejects Plaintiff's policy argument, as it is foreclosed by controlling Seventh Circuit precedent.
It is true that in situations like this one where a plaintiff voluntarily dismisses its suit after the statute of limitations has run, the plaintiff is out of luck. But that result in no way undermines Rule 41(a)(1). This is not merely "Defendant's theory, " but the well-settled law of the Seventh Circuit. "[A] suit dismissed without prejudice is treated for statute of limitations purposes as if it had never been filed." Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000); see also Nelson v. Napolitano, 657 F.3d 586, 587 (7th Cir. 2011) ("A suit that is voluntarily dismissed under Rule 41(a) generally is treated as if it had never been filed."). "Were this not the rule, statutes of limitations would be easily nullified. The plaintiff could file a suit, dismiss it voluntarily the next day, and have forever to refile it. The strongest case for the rule that the running of the statute of limitations is unaffected by a dismissal without prejudice is therefore the case in which the plaintiff procured the dismissal as by voluntarily dismissing the suit." Id. In no uncertain terms, "[t]he rule is therefore as [the Seventh Circuit] stated it: when a suit is dismissed without prejudice, the statute of limitations is deemed unaffected by the filing of the suit, so that if the statute of limitations has run the dismissal is effectively with prejudice." Id. The Seventh Circuit, thus, has explicitly considered and rejected Plaintiff's argument.
Alternatively, Plaintiff argues - again, without citing any supporting case law - that his complaint in this case should relate back to the date on which Plaintiff filed its complaint in its 2011 case. Because the "two cases are identical in every respect, " Plaintiff contends, Defendant has had notice of Plaintiff's claims since the filing of its first complaint. Plaintiff misunderstands the relation back doctrine. Rule 15(c)(1)(B) provides that "[a]n amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim... that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading." Fed.R.Civ.P. 15(c)(1)(B). There is no federal rule that permits a complaint in a fresh suit to relate back to a complaint in an entirely separate suit, even when the cases arise from the same incident or, like here, the complaints are identical. "In federal law, the criterion of relation back is whether the original complaint gave the defendant enough notice of the nature and scope of plaintiff's claim that he shouldn't have been surprised by the amplification of the allegations of the original complaint in the amended one. " Marshall v. H& R Block Tax Services, Inc., 564 F.3d 826, 831 (7th Cir. 2009) (emphasis added). Here, Plaintiff has not filed an amended complaint. Instead, as discussed, Plaintiff voluntarily dismissed its first suit without prejudice. But "[w]ithout prejudice' does not mean without consequence.' If the case is dismissed and filed anew, the fresh suit must satisfy the statute of limitations." Powell v. Starwalt, 866 F.2d 964, 966 (7th Cir. 1989). Accordingly, Plaintiff cannot avail itself of the relation-back doctrine and for statute of limitations purposes treat its complaint in this suit as though it was filed on the date of the complaint in its earlier suit before Judge Kendall.
The Seventh Circuit has "emphasized... the social importance of limitations periods for suing." Elmore, 227 F.3d at 1013. "Such deadlines minimize legal uncertainty both about the outcome of eventual litigation and about the existence and scope of the potential defendant's liability." Id. "Rapid resolution of disputes, repose for those against whom a claim could be brought, and avoidance of litigation involving lost evidence or distorted testimony of witnesses" are all important policies that underlie statutes of limitations. Soignier v. American Bd. of Plastic Surgery, 92 F.3d 547, 553 (7th Cir. 1996). Moreover, the Federal Tort Claims Act ("FTCA") is a limited waiver of the sovereign immunity of the United States and 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 omissions occurred." Warrum v. U.S., 427 F.3d 1048, 1049-50 (7th Cir. 2005) (quoting 28 U.S.C. § 1346(b)(1)). As a condition of this limited waiver, the FTCA imposes its own procedural rules. Id. Relevant here, Congress created a statute of limitations whereby a claimant must first ...