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David v. United States

April 24, 2009


The opinion of the court was delivered by: Gene E.K. Pratter, J.


Ms. Sharon Rae Richards David brought this case against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., following a slip and fall accident on a walkway allegedly maintained as part of Independence National Historical Park. The United States moved to dismiss this case under Federal Rule of Civil Procedure 12(b)(6) or, alternatively, for summary judgment under Federal Rule of Civil Procedure 56,*fn1 on the ground that Ms. David's claims are time-barred. For the reasons that follow, the Court grants the Rule 12 motion and dismisses the case with prejudice.


The undisputed operative facts here reflect that on or about November 11, 2006, Ms. David slipped and fell on a walkway on the premises of Independence National Historical Park at Second Street in Philadelphia, Pennsylvania. Complaint at ¶¶ 7, 10, Exhibit A. Eleven months later, on October 10, 2007, Ms. David's counsel submitted an administrative claim to the National Park Service ("NPS"), seeking $75,000 in damages for Ms. David's injuries. See Complaint at ¶ 5; Plaintiff.'s Answer to Defendant's Motion at Exhibit. A; Defendant's Memorandum in Support of Motion at Exhibit A.

By letter mailed on January 10, 2008, the NPS made Ms. David an offer of settlement. See Complaint at Exhibit A; Defendant's Memorandum in Support of Motion at Exhibit B. The NPS letter advised Ms. David that if she wished to ask for reconsideration of the offer, she needed to do so by responding via certified mail within six months of the date that the letter was mailed. Id. at 2. Alternatively, the letter stated, Ms. David could consider the offer of settlement a final agency determination of her claim and file suit in the appropriate federal district court within six months of the date that the letter was mailed. Id.

Ms. David admits that she did not request reconsideration of the settlement offer. See Plaintiff's Answer to Defendant's Motion at 4. Instead, as reflected on the Court's docket, on November 7, 2008, Ms. David commenced this suit.


A Rule 12(b)(6) motion to dismiss*fn2 tests the sufficiency of a complaint. See generally Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). In making such a determination, courts "must only consider those facts alleged in the complaint and accept all of those allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Twombly, 127 S.Ct. at 1965 (stating that courts must assume that "all the allegations in the complaint are true (even if doubtful in fact)"). The Court must also accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The Court, however, need not accept as true "unsupported conclusions and unwarranted inferences," Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citing City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998)), or the plaintiff's "bald assertions" or "legal conclusions," Morse v. Lower Merion Sch. Dist., 132 F.3d. 902, 906 (3d Cir. 1997).

To evaluate a motion to dismiss, the Court may consider the allegations contained in the complaint, exhibits attached to the complaint, matters of public record and records of which the Court may take judicial notice. See Tellabs, Inc. v. Makor Issues & Rts., 127 S.Ct. 2499, 2509 (2007); Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). The court may also consider "'undisputably authentic' documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss." Hunter v. United States, No. 3:cv-00-0036, 2000 U.S. Dist. LEXIS 20206, at *7 (citing Pension Benefit Guaranty Corp. v. White Consolidated Industries. Inc., 998 F.2d 1192, 1196-97 (3d Cir. 1993). See also Dykes v. Southeastern Pennsylvania Transp. Authority, 68 F.3d 1564, 1567 (3d Cir. 1995).*fn3


Section 2401(b) of the FTCA states, 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 after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b) (emphasis added). Ms. David argues that because she filed suit within two years after the date of her alleged injury, she is not barred by the Federal Tort Claims Act's ("FTCA's") statute of limitations. See Plaintiff's Answer to Defendant's Motion at 4. In essence, she argues that she only has to fulfill one of the two limitations periods set forth in 28 U.S.C. § 2401(b).

Section 2401(b) provides for two different limitations periods -- a two year period following the date after the claim accrues, and a six month period after the mailing date of the final denial of claim. Although the two limitations periods are connected by the word "or," not "and," the caselaw is clear that Section 2401(b) requires a plaintiff to satisfy both limitations provisions. See Ramming v. United States, 281 F.3d 158, 161-62 (5th Cir. 2001); Houston v. United States Postal Service, 823 F.2d 896, 902 (5th Cir. 1987); Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984); Miller v. United States, 741 F.2d 148, 150 (7th Cir. 1984); Willis v. United States, 719 F.2d 608, 612 (2d. Cir. 1983); Schuler v. United States, 628 F.2d 199, 201-02 (D.C. Cir. 1980) (en banc, per curiam); Davis v. United States, No. 05-1609, 2007 U.S. Dist. LEXIS 21392, at **18-20 (W.D. Pa. Mar. 26, 2007); Campbell v. United States, No. 03-545 JJF, 2004 U.S. Dist. LEXIS 4947, at **2-5 (D. Del. Mar. 23, 2004); Brown v. United States Post Office, 2002 U.S. Dist. LEXIS 5770, at **3-4 (E.D. Pa. Apr. 4, 2002); White v. United States Dept. of Navy & Naval Hosp., No. 89-4785, 1990 U.S. Dist. LEXIS 277, at **2-5 (E.D. Pa. Jan. 12, 1990); Myszkowski v. United States, 553 F. Supp. 66, 67-68 (N.D. Ill. 1982).

Although Ms. David filed her complaint within 2 years of her injury, it is undisputed that she filed it well more than 6 months after her claim was denied by the NSF letter. Ms. Davis's reading of Section 2401(b) has been rejected by numerous courts as demonstrated above and, according to a number of those courts that consulted such sources, is contrary to the legislative history of the FTCA.*fn4 Therefore, ...

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