Lumpkin v. United States

791 F. Supp. 747, 1992 U.S. Dist. LEXIS 7895, 1992 WL 124425
CourtDistrict Court, N.D. Illinois
DecidedJune 5, 1992
Docket89 C 8303
StatusPublished
Cited by6 cases

This text of 791 F. Supp. 747 (Lumpkin v. United States) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lumpkin v. United States, 791 F. Supp. 747, 1992 U.S. Dist. LEXIS 7895, 1992 WL 124425 (N.D. Ill. 1992).

Opinion

ORDER

NORGLE, District Judge.

Before the court is defendant’s motion to dismiss for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). The court grants the motion for the reasons set forth below.

FACTS

Due to complications arising out of the natural delivery of her first child in November of 1983, Bobbi Lee Lumpkin underwent reconstructive surgery for her perineal area. Medical personnel from the naval hospital in Jacksonville, Florida performed the . operation in July of 1984. During her pregnancy with her second child in 1987, Lumpkin’s private physician informed her that she could not have another vaginal delivery due to the damage in her perineal region. She now brings suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq., to recover for the bodily injury to her perineal area and for the resulting incontinence, or the inability to properly control both her bowel and bladder, from which she currently suffers.

Lumpkin claims that the government doctors failed to perform a proper reconstructive surgery and failed to refer her to a gynecological surgeon. Lumpkin submitted her claim to the Department of the Navy on or about March 23, 1989 — nearly five years after the reconstruction surgery. The Department of the Navy acknowledged receipt of the claim but did not act upon it. *749 In November of 1989, Lumpkin elected to consider the failure as a final denial pursuant to 28 U.S.C. § 2675(a) and thus instituted her action. The government, as a consequence, filed the present motion to dismiss, claiming that section 2401(b) of the Tort Claims Act bars her action because she failed to initiate her claim within two years of the accrual of her cause of action.

DISCUSSION

A determination on a Rule 12(b)(1) dismissal is manifestly different than one for dismissal under Rule 12(b)(6) or for summary judgment under Rule 56. Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990). On a motion to dismiss under Rule 12(b)(1), the court may hold an evidentiary hearing if requested or may organize a documentary inquiry into jurisdiction. Barnhart v. United States, 884 F.2d 295, 296 (7th Cir.1989), cert. denied, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 743 (1990); Crawford v. United States, 796 F.2d 924, 928-30 (7th Cir.1986). There are no specific guidelines for evidentiary hearings on jurisdiction — “any rational mode of inquiry will do.” Crawford, 796 F.2d at 929. A district court may look to the procedures in Rule 56 as guidance in treating the motion as a loose “form of trial by affidavit” as long as the decision is based on jurisdiction and not a decision on whether sufficient evidence exists to proceed to a trial on the merits. Id. at 928-29.

Rule 12(b)(1) permits a district court to weigh the evidence and satisfy itself as to the existence of jurisdiction because the question goes to the very power of the court to hear the case. Osborn, 918 F.2d at 730 (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). There is no presumption of truthfulness to the plaintiffs allegations, and disputes over material facts will not preclude the district court from determining the jurisdictional issues. Id. Last, once questioned, the plaintiff carries the burden of establishing that all jurisdictional requirements have been satisfied. Id.; Kontos v. United States Dep’t of Labor, 826 F.2d 573, 576 (7th Cir.1987).

Section 2401(b) of the Federal Tort Claims Act creates a jurisdictional question. See Osborn, 918 F.2d at 728 (compliance with section 2401(b) is a jurisdictional prerequisite to suit under the Federal Tort Claims Act); Crawford, 796 F.2d at 927 (statute of limitation under the Tort Claims Act is jurisdictional). If the plaintiff does not satisfy the limitations period, the district court is deprived of jurisdiction. Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir.), cert. denied, — U.S. -, 111 S.Ct. 75, 112 L.Ed.2d 48 (1990). Section 2401(b) provides that a plaintiff must file a claim against the United States within two years of the accrual of a cause of action. 28 U.S.C. § 2401(b). A cause of action accrues when the plaintiff has sufficient information to discover both the injury and its cause. Nemmers v. United States, 795 F.2d 628, 629 (7th Cir.1986). The time period begins to run when a reasonably diligent person, reacting to suspicious circumstances, would have discovered the government cause. Drazan v. United States, 762 F.2d 56, 59 (7th Cir.1985). Thus, if Lumpkin discovered, or in the exercise of reasonable diligence could have discovered, the defects and the role of the naval hospital prior to March of 1987, 1 section 2401(b) bars recovery. Lumpkin, as the party claiming the benefit of the discovery rule, has the burden of demonstrating that no reasonable person would have discovered the injury within two years of the reconstructive surgery. Osborn, 918 F.2d at 731; Drazan, 762 F.2d at 60. Lumpkin has not met this burden.

Defendant argues that Lumpkin could have been aware of her injury and its cause in October 1985, if not earlier. Defendant supports this claim by pointing to *750 the October visit during which Lumpkin complained that “something wasn't right.” The court agrees. A reasonable person in Lumpkin’s position would have been suspicious at or before the 1985 visit. Problems seemed to develop soon after the surgery. During her check-up in August of 1984, immediately following the surgery, the treating physician noted infection and that the repair had “partially broken down.” Lumpkin never returned for follow-up visits subsequent to this check-up as the doctor directed. Lumpkin stated in her deposition that she noticed problems soon after the surgery.

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791 F. Supp. 747, 1992 U.S. Dist. LEXIS 7895, 1992 WL 124425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumpkin-v-united-states-ilnd-1992.