United States District Court, D. Maryland
DONNA M. POOLE, et al. Plaintiff
UNITED STATES OF AMERICA Defendant.
Xinis United States District Judge
before the Court is Defendant United States of America's
Motion to Dismiss or in the alternative Motion for Summary
Judgment, asserting dismissal is warranted because Plaintiff
failed to file the instant action within six months as
proscribed by the Federal Tort Claims Act ("FTCA"),
28 U.S.C. § 2401(b). ECF No. 7. The issue has been fully
briefed and the court now rules pursuant to Local Rule 105.6,
that no hearing is necessary. For the following reasons, the
motion to dismiss will be granted.
February 22, 2016, Plaintiffs filed their Complaint in this
court against the United States. ECF No. 1. The Complaint
alleges that Defendant United States negligently failed to
maintain the drainage system in a lower level file room at
the Department of Energy (DOE) Building, causing sewage and
waste water to cover the floor and loosen the carpet tiles.
As a result, Plaintiff Donna Poole, who worked in the DOE
building as private contractor, slipped, fell and injured her
left arm, shoulders, neck, back and hands. Id.
Plaintiff Poole seeks compensatory relief for her injuries,
while her husband, Plaintiff Michael Kroner, brings a loss of
consortium claim. Id. Plaintiffs had first filed
these claims administratively, which DOE denied on July 9,
2015. ECF No. 7-4.
now move to dismiss the instant action, or alternatively for
summary judgment, on the grounds that Plaintiffs failed to
file their claims in this court within the six month period
for filing after receiving notice that the DOE had denied
their claims administratively. ECF No. 7. Plaintiffs concede
that they filed the Complaint more than six months after the
denial. ECF No. 8 at 1. Plaintiffs, however, singularly
contend that the court should apply Maryland law when
calculating the applicable statute of limitations, and thus
§ 9-902 of the Maryland Code Labor and Employment
Article must extend the FTCA limitations period by two months
for an injured employee's cause of action against a third
party. ECF No. 8 at 2. The Plaintiffs' claims,
unfortunately, are without merit.
FTCA bars a plaintiffs claim unless it is "presented to
the appropriate Federal agency within two years after such
claim accrues and then brought to federal court within six
months after the agency acts on the claim." Lucas v.
United States, 2016 WL 1446782, No. DKC 14-2032, at *1
(D. Md. Apr. 14, 2016) (quoting 28 U.S.C. § 2402(b))
(internal quotation marks omitted). Because the FTCA
constitutes a limited waiver of the United States'
sovereign immunity, the United States' consent to suit is
strictly circumscribed by the FTCA's terms. See Gould
v. Dep't Health & Human Servs., 905 F.2d 738, 741
(4th Cir. 1990) (collecting cases). Thus, the FTCA, and not
state law, "determines when a claim accrues."
Id. at 742.
to Plaintiffs' assertions, this fundamental principle
dictates that in this case the Maryland's Workers'
Compensation provisions, Md. Code Ann. Labor & Employment
§ 9-902, does not extend the FTCA's limitations
period. See, e.g., United States v. Mendiola, 401
F.2d 695, 698 (5th Cir. 1968) (holding state workman's
compensation tolling provisions inapplicable to §
2401(b)). See also Vega-Velez v. United States, 627
F.Supp. 773, 777 (D.P.R. 1986) ("[Provisions of state
law normally have the effect of tolling statutes of
limitation are not given that effect when the claim is under
the Federal Tort Claims Act.").
the United States Supreme Court in Wong made clear
that although the FTCA's six month bar is not
jurisdictional, the time to file suit can be extended where
the Plaintiff meets a substantial burden of showing why their
claims should be equitably tolled. Wong, 135 S.Ct.
at 1632-33. Equitable tolling is an "extreme
remedy" to be applied only in rare instances where
"due to circumstances external to the party's own
conduct-it would be unconscionable to enforce the limitation
period against the party and a gross injustice would
result." Raplee v. United States, No. PWG
13-1318, 2015 WL 9412520, at *2 (D. Md. Dec. 22, 2015)
(quoting Harris v. Hutchinson, 209 F.3d 325, 330
(4th Cir. 2000)) (internal quotation marks omitted). See
also Cibula v. United States, No. DKC 15-2806, 2016 WL
1599778, at *2 (D. Md. Apr. 21, 2016). Only if Plaintiffs can
show that (1) they have pursued their rights diligently, and
that (2) some extraordinary circumstance stood in the way and
prevented timely filing will claims be equitably tolled.
Raplee, 2015 WL 9412520, at *2 (quoting Holland
v. Florida, 560 U.S. 631. 649 (2010)). See also
Wong, 35 S.Ct. at 1631.
United States rightly points out, Plaintiffs fail to aver any
facts supporting equitable tolling. Although Plaintiffs note
that Wong requires the above showing for claims to
be equitably tolled, ECF No. 8 at 2, nowhere do they assert
diligent pursuit of their rights or raise any extraordinary
circumstance which prevented timely filing. Id.
Accordingly, the United States' motion to dismiss is
Because Plaintiffs and the United
States agree as to the operative dates triggering the
six-month window to file suit under 28 U.S.C. § 2401(b),
the Court construes the DOE denial of claims letter attached
to Defendant's pleadings as "integral" to the
claims in that their "very existence, and not the mere
information [they] contain give rise to the legal rights
asserted." Fisher v. Maryland Dep't Pub.
Safety & Corr. Servs., No. JFM 10-cv-0206, 2010 WL 2732334,
at *2 (D. Md. July 8, 2010) (internal citations and quotation
marks omitted). Further, Plaintiffs posit no other facts