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Flynn v. United States

United States District Court, W.D. Washington, Tacoma

June 28, 2018

VENUS FLYNN, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          ORDER ON DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT

          Ronald B. Leighton United States District Judge.

         This matter comes before the Court on Defendant the United States' Motion to Dismiss Plaintiffs' Amended Complaint. Dkt. 26. Filed on January 31, 2018, this tort case arises out of an auto accident allegedly caused by a federal employee, Beatrice Ashburn, on February 12, 2015. The United States seeks dismissal under Fed.R.Civ.P. 12(b)(1) and (6), arguing that the case is barred by the two year statute of limitations and that the Amended Complaint does not, and cannot, allege facts to establish equitable tolling. The United States also challenges the factual sufficiency of the Amended Complaint as to a common law claim for fraudulent concealment.

         As further explained, the fraudulent concealment should be dismissed for failure to state a claim, but the United States' motion should otherwise be denied.

         I. BACKGROUND

         A. Procedural History.

         On April 25, 2017, Plaintiff Venus Flynn filed a negligence action in Pierce County Superior Court for damages arising out a February 12, 2015 auto accident, naming as defendants Beatrice and “John Doe” Ashburn[1]. W.D.Wash. Cause No. 3:17-cv-05316-RBL, Dkt. 1-2. Ms. Ashburn removed the case on April 28, 2017, averring that at the time of the incident she was an employee of the Federal Deposit Insurance Corporation (FDIC), a federal agency, acting within the course and scope of her employment. Id. at Dkt. 1 at 2. The United States substituted itself as a party for Ms. Ashburn and John Doe Ashburn pursuant to 28 U.S.C. § 2679(d)(4). Id. at Dkt. 5. On June 14, 2017, the Court dismissed the United States from the case for Ms. Flynn's failure to exhaust administrative remedies under the Federal Tort Claims Act. Id. at Dkt. 12, citing 28 U.S.C. § 2675(a).

         On May 4, 2017, Ms. Flynn, along with two family members, Autumn Flynn and G.F. (collectively, “the Flynns”) filed administrative claims with the FDIC, which denied the Flynns' administrative claims on November 6, 2017. Dkt. 18 at ¶¶7, 8. The Flynns filed this case on January 31, 2018. Dkt. 1.

         B. Amended Complaint.

         1. Factual Allegations.

         For purposes of this motion, the following facts alleged in or incorporated by the Amended Complaint are taken as true.

         The Flynns sustained harm in a three car chain-reaction accident on February 12, 2015, caused by two other drivers, Ms. Ashburn and Defendant Lorraine Craig. Dkt. 18 at ¶¶10, 12, 13, 14. Ms. Ashburn, then-employed by a federal agency and acting within the scope of her employment, was not wearing anything to indicate that she was a federal employee, and she made no representations about her federal employment to the Flynns. Id. at ¶¶15, 16. Ms. Ashburn was driving an Enterprise rental car. Dkt. 5 at 2.

         In February of 2015, counsel to the Flynns contacted Enterprise, and Enterprise directed counsel to Defendant Rental Insurance Services, Inc. (RIS) for its claims handling. Dkt. 5 at 2. RIS, which accepted tender of the Flynns' insurance claims, negotiated the claims on behalf of Ms. Ashburn and the United States. Id.; Dkt. 18 at ¶17. On March 18, 2015, RIS sent a letter the Flynns acknowledging its investigation of their claims. Dkt. 1-2 at 2. The letter warns the Flynns: “Under Washington state law, you have three years from the date of the accident to file a lawsuit for bodily injury . . . This means you must settle your claim or file a lawsuit by that date or you will be barred from recovery.” Id. The Flynns' counsel first learned of Ms. Ashburn's federal employee status on April 16, 2017. Id. at ¶21.

         2. Parties and claims.

         The Amended Complaint names as defendants the United States, liable for its employee, Ms. Ashburn, who is not separately named; Ms. Craig; and RIS. Dkt. 18 at ¶¶2, 3. Damages are sought against the United States under the Federal Torts Claim Act and “RCW 46.61” for the negligent driving by Ms. Ashburn. Id. at ΒΆ25. The Prayer for Relief requests: (1) judgment against the defendants for damages from the February 12, 2015 collision, and (2) ...


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