United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT UNITED STATES OF AMERICA'S
MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT
B. Leighton United States District Judge.
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
further explained, the fraudulent concealment should be
dismissed for failure to state a claim, but the United
States' motion should otherwise be denied.
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. 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).
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.
purposes of this motion, the following facts alleged in or
incorporated by the Amended Complaint are taken as true.
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
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.
Parties and claims.
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 ¶25.
The Prayer for Relief requests: (1) judgment against the
defendants for damages from the February 12, 2015 collision,
and (2) ...