Marilyn Scott v. United States of America

• Court: District Court, D. Arizona
• Decided: April 13, 2026
• Docket: 3:25-cv-08126
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Marilyn Scott, No. CV-25-08126-PCT-KML

10 Plaintiff, ORDER

11 v.

12 United States of America,

13 Defendant. 14 15 In 2022, an employee of the Tuba City Regional Health Care Corporation 16 (“TCRHCC”) was involved in a car accident which injured Marilyn Scott and killed her 17 husband Roger. TCRHCC is a federally-supported nonprofit corporation and the United 18 States may be liable for certain torts committed by its employees. Scott filed a lawsuit 19 under the Federal Tort Claims Act (“FTCA”) alleging negligence and negligence per se 20 against the United States. (Doc. 1.) The United States moved to dismiss the claims for 21 lack of subject matter jurisdiction, arguing Scott did not timely present her administrative 22 claim. (Doc. 9.) Its motion is denied. Scott also filed a notice of supplemental authority 23 (Doc. 16), which the United States moves to strike (Doc. 17). That motion is granted. 24 I. Factual Background 25 TCRHCC, located on Navajo Tribal land and owned by the Navajo Nation, is a 26 nonprofit corporation that provides health care to Native Americans. (Doc. 1 at 2.) It 27 operates pursuant to an agreement with Indian Health Services (“IHS”), an agency within 28 the Department of Health and Human Services (“HHS”), to provide medical care to 1 Native Americans. (Docs. 9 at 2, 5; 12 at 9.) The United States has expressly agreed it 2 may be liable under the FTCA for torts committed by employees of entities like 3 TCRHCC. (Docs. 9 at 2; 12 at 7-8.) 4 On December 7, 2022, Scott and her husband Roger were in a car accident 5 allegedly caused by Leah McManus, a TCRHCC employee who was driving a TCRHCC 6 vehicle at the time. (Docs. 1 at 2; 9 at 2.) Scott suffered “severe and permanent injuries” 7 in the collision and Roger was killed. (Doc. 1 at 4.) 8 Almost two years later, on November 27, 2024, Scott sent an administrative claim 9 to multiple federal addresses, giving notice of a tort claim and requesting $10 million. 10 (Doc. 1 at 3.) She initially alleged each recipient received the claim “on or before 11 December 6, 2024” (Doc. 1 at 3), but subsequently provided evidence of the following 12 dates of receipt.

13 Agency Date received1 14 Navajo Area Indian Health Service December 6, 2024 15 TCHRCC December 5, 2024 IHS December 5, 2024 16 United States Attorney’s Office, December 2, 2024 17 District of Arizona HHS, Office of General Counsel December 12, 2024 18 HHS, Secretary December 12, 2024 Department of Justice (“DOJ”), December 9, 2024 19 Attorney General 20

21 (Docs. 12 at 2-3; 12-2 at 2-25). She did not receive a decision from any agency. (Doc. 1 22 at 3.) In June 2025, she filed a complaint under the FTCA alleging negligence and 23 negligence per se against the United States. (Doc. 1 at 4-5.) The United States moved to 24

25 1 Scott lists dates provided by certified mail receipts as well as those provided by USPS tracking, some of which are different. (Doc. 12 at 2-3.) The court considers the certified 26 mail receipts because certified tracking is more reliable. See Sembiring v. Gonzales, 499 F.3d 981, 982 (9th Cir. 2007) (discussing “strong presumption” of effective service by 27 certified mail). The United States also provides evidence HHS received one claim December 10, 2024 and another supplement with information about Scott’s sons 28 December 12, 2024. (Doc. 9 at 5.) None of these discrepancies straddle the deadline for submitting an administrative claim, so they do not impact the timeliness analysis. 1 dismiss those claims due to lack of subject matter jurisdiction. (Doc. 9 at 6.) 2 II. Legal Standard 3 A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee, 227 4 F.3d 1214, 1242 (9th Cir. 2000) (simplified). In a factual attack like the one here (Docs. 9 5 at 3; 12 at 4), “the challenger disputes the truth of the allegations that, by themselves, 6 would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 7 1035, 1039 (9th Cir. 2004). To resolve a factual attack, courts “may review evidence 8 beyond the complaint” and “need not presume the truthfulness of the plaintiff’s 9 allegations.” Id. 10 III. Analysis 11 The United States “can be sued only to the extent that it has waived its immunity.” 12 United States v. Orleans, 425 U.S. 807, 814 (1976). The FTCA waives the United States’ 13 sovereign immunity for torts committed by federal employees “under situations where 14 the United States, if a private person, would be liable to the claimant in accordance with 15 the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b); see Vacek 16 v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). But a federal court does not 17 have subject matter jurisdiction over an FTCA claim unless the claimant has exhausted 18 her administrative remedies by presenting the claim to the appropriate federal agency and 19 either waiting six months or receiving the agency’s final denial of the claim before filing 20 a lawsuit. 28 U.S.C. § 2675(a). A claim is properly presented when the agency receives a 21 written statement which (1) describes the injury in enough detail the agency can 22 investigate and (2) includes a “sum certain damages claim.” Blair v. I.R.S., 304 F.3d 861, 23 864 (9th Cir. 2002) (simplified); Vacek, 447 F.3d at 1251-52. 24 The claim must be presented within two years after it accrues and is considered 25 complete only on the date it is received by the “appropriate Federal agency” (or one of 26 multiple appropriate agencies). 28 U.S.C.A. § 2401(b); 28 C.F.R. § 14.2; see Bailey v. 27 United States, 642 F.2d 344, 346-47 (9th Cir. 1981) (affirming dismissal where plaintiff 28 sent claim but it was not received within two years after accrual). Courts interpret these 1 exhaustion requirements strictly and may not “proceed in the absence of fulfillment of the 2 conditions merely because dismissal would visit a harsh result upon the plaintiff.” Vacek, 3 447 F.3d at 1250 (dismissing claim timely sent but not timely received); Bailey, 642 F.2d 4 at 347 (same). 5 The car accident which gave rise to Scott’s negligence claims occurred on 6 December 7, 2022, so her FTCA administrative claim needed to be received by the 7 appropriate agency by December 7, 2024.2 28 U.S.C.A. § 2401(b). Only her claims to the 8 Navajo Area Indian Health Service, TCHRCC, IHS, and the District of Arizona U.S. 9 Attorney’s Office arrived by that date. (Doc. 12 at 2-3.) The United States argues that 10 although IHS is an agency within HHS and TCHRCC operates pursuant to an IHS 11 agreement, the only appropriate agency to receive the claim was HHS. (Doc. 15 at 5.) 12 Because HHS did not receive the claim in the two-year window, according to the United 13 States, the court lacks jurisdiction and must dismiss Scott’s claims. (Doc. 9 at 5.) 14 Scott argues she should benefit from constructive filing, a rule providing that if a 15 claimant sends a claim to the incorrect federal agency, that agency has an “affirmative 16 dut[y]” to quickly transfer the claim to the appropriate agency. Ortiz ex rel. Ortiz v. 17 United States, No. CIV F03-6541 AWISMS, 2007 WL 404899, at *11, 17 (E.D. Cal. 18 Feb. 2, 2007). If the incorrect agency fails to transfer a timely-received claim, courts will 19 nonetheless construe the improperly-presented claim as having been timely filed. Id. at 20 *11; see also Bojorquez v. United States, No. 2:25-CV-5704-CBM-E, 2026 WL 103973, 21 at *3 (C.D. Cal. Jan. 8, 2026). But “claimants who wait to the last minute or the eleventh 22 hour and file with the wrong agency cannot take advantage of constructive filing.” Ortiz, 23 2007 WL 404899 at *11, *17 (compiling cases finding constructive filing does not apply 24 to claims presented up to eighteen days before they expired); see Dye v. United States 25

26 2 December 7, 2024 was a Saturday. If Fed. R. Civ. P. 6(a) applies, Scott had until Monday, December 9, 2024 to present her claims. See Hart v. United States, 817 F.2d 78, 27 80 (9th Cir. 1987) (applying Rule 6(a) in FTCA context). But given the dates of receipt, 28 whether the claim needed to be received by December 7 or December 9 does not change the analysis in this case. 1 Gov’t, No. 16-CV-06882-KAW, 2018 WL 1091161, at *6 (N.D. Cal. Feb. 28, 2018). 2 Having been presented at the earliest just four days before they expired (Doc. 12 at 2), 3 Scott’s claims were too last-minute to be deemed constructively filed. Ortiz, 2007 WL 4 404899, at *11. 5 Scott also argues because TCRHCC activities gave rise to the claim and TCRHCC 6 operates under an agreement with IHS, both TCRHCC and IHS qualify as “appropriate 7 federal agenc[ies]” for FTCA filings (Doc. 12 at 7-8). Cf. Dickman v. United States, No. 8 02CV2371-BEN (WMC), 2006 WL 8455252, at *5 (S.D. Cal. Mar. 8, 2006) (finding 9 independent contractor does not qualify as FTCA agency because “United States did not 10 have ‘substantial supervision’ over [its] day-to-day operations”). The United States does 11 not contest IHS and TCRHCC activities gave rise to the claim, but it argues only HHS 12 qualifies as the appropriate agency for receiving an administrative claim. (Doc. 15 at 4- 13 5.) It primarily relies on directions on IHS’s website telling claimants to file FTCA 14 claims with HHS General Counsel. (Doc. 15 at 5.) But the United States does not cite, 15 and the court has not found, any authority holding the failure to follow directions on a 16 website can preclude subject matter jurisdiction over a claim that meets the statutory 17 requirements for presentment. 18 Neither party has pointed to definitive guidance on what qualifies as an agency 19 under the FTCA. The relevant statute, 28 U.S.C. § 2671, defines “Federal agency” as 20 “includ[ing] the executive departments . . . of the United States.” HHS would certainly 21 qualify under this definition. The United States does not dispute that IHS and TCRHCC 22 are sub-units or components of HHS. So, the question crucial to resolving the motion to 23 dismiss is whether a claimant’s timely presentment of a claim to a component of an 24 appropriate agency suffices for FTCA exhaustion. 25 As the Third Circuit recently explained, it can. It is permissible to send a claim to 26 “a component of the appropriate agency[,]” because claimants are not required “to 27 thoroughly familiarize themselves with the organizational intricacies of their tortfeasor.” 28 Freeman v. Lincalis, 158 F.4th 166, 176 (3d Cir. 2025). Other courts have reached the 1 same conclusion. Scogin v. United States, No. CIV.A. L-12-20, 2013 WL 391164, at *3 2 (S.D. Tex. Jan. 30, 2013) (finding exhaustion where claim was presented to TSA, an 3 “office or entity” of appropriate agency DHS); Morigeau v. United States, No. CV 04- 4 228-M-DWM, 2006 WL 8435854, at *4 (D. Mont. Sept. 19, 2006) (finding exhaustion 5 where claim was presented to tribe, which was deemed part of appropriate agency BIA); 6 see also Briley v. United States, No. 1:16CV505(LO/IDD), 2016 WL 5402216, at *5 7 (E.D. Va. Sept. 26, 2016) (no presentment where plaintiff did not present claim to 8 appropriate agency or its “components”). These decisions do not conflict with the 9 statutory text, which “includes” executive departments in the definition of “agency” but 10 does not speak to their components. Fed. Trade Comm’n v. MTK Mktg., Inc., 149 F.3d 11 1036, 1040 (9th Cir. 1998) (the word “include” in statutory construction “does not 12 connote limitation,” but rather “extension or enlargement”). 13 Accordingly, though online instructions designate HHS General Counsel as the 14 proper FTCA claim recipient for all agencies under the HHS umbrella, the United States 15 has provided no legal reason why timely filing with an HHS component agency should 16 not count as exhaustion under the relevant statutes and regulations. In timely presenting 17 her claims to IHS and TCRHCC and waiting over six months to file suit, Scott exhausted 18 her administrative remedies. 19 IV. Motion to Strike 20 The court’s preliminary order warned Scott that “[n]otices of supplemental 21 authority . . . are limited to 350 words[.]” (Doc. 5 at 2.) She made no effort to comply 22 with that order, having filed a notice (Doc. 16) that includes no new authority and 23 consists primarily of additional arguments she could have made in her response. See 24 ThermoLife Int’l LLC v. Aesthetic Distribution, LLC, No. CV-19-02048-PHX-DJH, 2020 25 WL 12581996, at *1 n.2 (D. Ariz. Jan. 7, 2020) (parties may not include additional 26 arguments in notice of supplemental authority); Jones v. Metro. Life Ins. Co., No. C-08- 27 02971-JW(DMR), 2019 WL 4055928, at *6 (N.D. Cal. Oct. 15, 2019) (“a court may 28 strike material from the docket . . . reflecting . . . lack of compliance with court rules or 1 orders.”). 2 Accordingly, the United States’ motion to strike (Doc. 17) is granted. 3 IT IS ORDERED the Motion to Dismiss (Doc. 9) is DENIED. The Motion to 4 Strike (Doc. 17) is GRANTED. 5 IT IS ORDERED FURTHER ORDERED as follows: 6 The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case 7 Management Report, which must be filed within 4 weeks of the date of this order. It is 8 the responsibility of plaintiff(s) to initiate the Rule 26(f) meeting and prepare the Joint 9 Case Management Report. Defendant(s) shall promptly and cooperatively participate in 10 the Rule 26(f) meeting and assist in preparation of the Joint Case Management Report. 11 The Joint Case Management Report shall contain the following information in 12 separately-numbered paragraphs. 13 1. The parties who attended the Rule 26(f) meeting and assisted in developing 14 the Joint Case Management Report; 15 2. A list of all parties in the case, including any parent corporations or entities 16 (for recusal purposes); 17 3. Any parties that have not been served and an explanation of why they have 18 not been served, and any parties that have been served but have not 19 answered or otherwise appeared; 20 4. A statement of whether any party expects to add additional parties to the 21 case or otherwise amend pleadings; 22 5. The names of any parties not subject to the court’s personal (or in rem) 23 jurisdiction; 24 6. A description of the basis for the court’s subject matter jurisdiction, citing 25 specific jurisdictional statutes. If jurisdiction is based on diversity of 26 citizenship, the report shall include a statement of the citizenship of every 27 party and a description of the amount in dispute. See 28 U.S.C. §1332; 28 7. A short statement of the nature of the case (no more than three pages), 1 including a description of each claim, defense, and affirmative defense; 2 8. A listing of contemplated motions and a statement of the issues to be 3 decided by those motions; 4 9. Whether the case is suitable for reassignment to a United States Magistrate 5 Judge for all purposes or suitable for referral to a United States Magistrate 6 Judge for a settlement conference; 7 10. The status of any related cases pending before this or other courts; 8 11. A discussion of any issues relating to preservation, disclosure, or discovery 9 of electronically stored information (“ESI”), including the parties’ 10 preservation of ESI and the form or forms in which it will be produced; 11 12. A discussion of any issues relating to claims of privilege or work product; 12 13. A discussion of necessary discovery, which should take into account the 13 December 1, 2015 amendments to Rule 26(b)(1) and should include: 14 a. The extent, nature, and location of discovery anticipated by the 15 parties and why it is proportional to the needs of the case; 16 b. Suggested changes, if any, to the discovery limitations imposed by 17 the Federal Rules of Civil Procedure; 18 c. The number of hours permitted for each deposition. The parties also 19 should consider whether a total number of deposition hours should 20 be set in the case, such as twenty total hours for plaintiffs and twenty 21 total hours for defendants. Such overall time limits have the 22 advantage of providing an incentive for each side to be as efficient 23 as possible in each deposition, while also allowing parties to allocate 24 time among witnesses depending on the importance and complexity 25 of subjects to be covered with the witnesses; 26 14. Proposed deadlines for each of the following events. In proposing 27 deadlines, the parties should keep in mind the Case Management Order will 28 contain deadlines to govern this case and once the dates have been set the 1 court will vary them only upon a showing of good cause. A request by 2 counsel for extension of discovery deadlines in any case that has been 3 pending more than two years must be accompanied by a certification 4 stating the client is aware of and approves of the requested extension. The 5 court does not consider settlement talks or the scheduling of mediations to 6 constitute good cause for an extension. The parties must propose the 7 following: 8 a. A deadline for the completion of fact discovery, which will also be 9 the deadline for pretrial disclosures pursuant to Rule 26(a)(3). This 10 deadline is the date by which all fact discovery must be completed. 11 Discovery requests must be served and depositions noticed 12 sufficiently in advance of this date to ensure reasonable completion 13 by the deadline, including time to resolve discovery disputes. Absent 14 extraordinary circumstances, the court will not entertain discovery 15 disputes after this deadline; 16 b. Dates for full and complete expert disclosures and rebuttal expert 17 disclosures, if any; 18 c. A deadline for completion of all expert depositions; 19 d. A date by which any Rule 35 physical or mental examination will be 20 noticed if such an examination is required by any issues in the case; 21 e. A deadline for filing dispositive motions; 22 f. Case-specific deadlines and dates, such as the deadline to file a 23 motion for class certification or a date on which the parties are 24 available for a Markman (patent claim construction) hearing; 25 g. A date by which the parties shall have engaged in face-to-face good 26 faith settlement talks; 27 h. Whether a jury trial has been requested and whether the request for a 28 jury trial is contested, setting forth the reasons if the request is l contested; 2 1. Any other matters that will aid the court and parties in resolving this 3 case in a just, speedy, and inexpensive manner as required by 4 Federal Rule of Civil Procedure 1; 5 15. A statement indicating whether the parties would prefer that the court hold 6 a case management conference before issuing a scheduling order—and, if 7 so, an explanation of why the conference would be helpful. 8 IT IS FURTHER ORDERED the parties shall file a proposed Case Management 9|| Order containing all the proposed dates at the same time they file the Rule 26(f) Case || Management Report. The proposed Case Management Order must also be emailed in || Word format to Lanham_Chambers@azd.uscourts.gov. 12 Dated this 13th day of April, 2026. 13

Honorable Krissa M. Lanham 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

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