Keller v. United States
2:11-cv-02345
D. Ariz.Aug 29, 2017Background
- Case: Mary Jo Keller (surviving mother) sued the United States under the Federal Tort Claims Act for wrongful death after her daughter Amanda died in a cross‑median crash on I‑10 on September 7, 2007; plaintiff alleges a non‑crash‑tested three‑cable median barrier failed.
- Procedural posture: Suit filed August 26, 2011; court initially dismissed as time‑barred; Ninth Circuit and then Supreme Court clarified § 2401(b) is subject to equitable tolling, so case remanded to consider tolling.
- Keller filed administrative FTCA claims with FHWA on December 16, 2010 (over three years after the accident).
- Keller contends limitations should be equitably tolled from the accident until April 29, 2009 because FHWA concealed that the September 2005 FHWA memorandum misrepresented crash‑testing (it relied on tests of a different roadside barrier).
- Key factual backdrop: Keller’s counsel, John Leader, had litigated multiple cases involving the same cable barrier, exchanged letters with FHWA in 2006–2007, filed FTCA claims and litigation involving the barrier before and shortly after the accident, and had knowledge imputed to Keller.
- District court granted summary judgment for the United States, holding Keller’s claim accrued on the accident date and equitable tolling did not apply because Keller failed both diligence and extraordinary‑circumstances elements; action dismissed as time‑barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual date for § 2401(b) | Accrual did not occur (or limitations did not run) until discovery of FHWA negligence in April 2009 | Claim accrued on date of death (Sept 7, 2007) because injury and immediate physical cause were known then | Accrual at date of accident; federal law governs and ignorance of federal involvement irrelevant; claim accrued Sept 7, 2007 |
| Equitable tolling — diligence element | Keller pursued rights but could not discover FHWA misrepresentation earlier | Keller (through counsel) had sufficient knowledge and therefore did not exercise reasonable diligence | Keller failed diligence prong; counsel’s prior knowledge imputed to Keller; delay was unreasonable |
| Equitable tolling — extraordinary circumstances / concealment | FHWA concealed material facts and refused depositions under Touhy rules, preventing timely filing until April 2009 | No affirmative misconduct; FHWA lawfully invoked Touhy and mere government knowledge doesn’t toll limitations | No extraordinary circumstances; no fraudulent concealment shown; Touhy refusals lawful and do not warrant tolling |
| Imputation of attorney knowledge | Keller argues she did not know of Melvin/other proceedings until later | Knowledge of attorney Leader (letters, prior cases, FTCA filings, related litigation) is imputed to Keller | Attorney’s knowledge imputed to Keller; prior communications and filings defeated tolling claim |
Key Cases Cited
- Kwai Fun Wong v. Beebe, 732 F.3d 1030 (9th Cir. 2013) (en banc) (held § 2401(b) is nonjurisdictional and subject to equitable tolling)
- United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015) (Supreme Court affirmed that § 2401(b) is subject to equitable tolling)
- Kubrick v. United States, 444 U.S. 111 (1979) (accrual does not await awareness that injury was negligently inflicted)
- Hensley v. United States, 531 F.3d 1052 (9th Cir. 2008) (FTCA accrual when plaintiff knows injury and immediate physical cause)
- Dyniewicz v. United States, 742 F.2d 484 (9th Cir. 1984) (government knowledge alone does not toll FTCA limitations absent fraudulent concealment)
- Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750 (2016) (equitable tolling requires both diligence and extraordinary circumstances)
- Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (party is bound by acts and knowledge of counsel)
- United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (agencies may lawfully refuse testimonial production by employees under proper regulations)