Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION
David C. Belton, )
) Plaintiff, ) Civil Action No. 3:15-1456-MBS )
v. ) ORDER AND OPINION )
United States of America, )
)
Defendant. )
______________________________)
This matter is before the court on a Motion to Alter or Amend Judgment pursuant to Fed.
R. Civ. P. 59(e) filed by Plaintiff David C. Belton (“Plaintiff”) on August 10, 2015. ECF No. 16.
Defendant United States of America (“Defendant”) filed a Memorandum of Law in Opposition
to Plaintiff’s Motion to Reconsider, Alter or Amend Complaint on August 25, 2015. ECF No.
17. Plaintiff filed a Reply to Defendant’s Memorandum of Law in Opposition to Plaintiff’s
Motion to Reconsider, Alter or Amend Complaint on September 3, 2015. ECF No. 18.
I. Background Plaintiff sued Defendant pursuant to the Federal Tort Claims Act (“FTCA” or “the Act”), 28 U.S.C. §§ 2671 et seq. , for injuries allegedly sustained during surgery due to medical
malpractice by doctors at the Dorn VA Medical Center in Columbia, South Carolina. [1] See ECF
No. 1 (Complaint). The Complaint did not mention by name the specific employees of
Defendant who allegedly injured Plaintiff. Id. In the administrative claim documents filed prior
to bringing this action, however, Plaintiff identified Drs. Mouratev and King as his treating
physicians. ECF No. 8-1 at 1 (Plaintiff’s Form SF95). Only Dr. King was alleged to be involved
in the surgery that injured Plaintiff. Id . at 3.
On June 2, 2015, Defendant filed a motion pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss the Complaint for lack of jurisdiction. ECF No. 8. Defendant contended that Dr. King was not
an employee of Defendant and, therefore, a claim based on her actions was not cognizable under
the FTCA. Id . at 2-3, 5-6. Defendant supported its contention that Dr. King was not an
employee of the United States with a declaration to that effect by Tamara Nichols, the human
resources chief at the Dorn VA Medical Center. ECF No. 8-2 at 1.
On June 25, 2015, Plaintiff filed a motion to amend the Complaint. ECF No. 11. The Proposed Amended Complaint alleged that “the VA, acting though its employees and agents,”
was negligent and reckless in failing to disclose a risk of the ablation procedure, failing to obtain
informed consent, burning through the liver, damaging the plaintiff’s diaphragm, and failing to
use due care. ECF No. 11-1. However, in the Proposed Amended Complaint, there was no
mention of Dr. King. Rather, Plaintiff alleged that a Dr. Savoca performed the surgery that
injured Plaintiff. ECF No. 11-1 at 2. In a response in opposition to the motion to amend,
Defendant argued that amendment should be denied as futile for two reasons: first, Dr. Savoca
was not an employee of the United States and so his alleged malpractice was not within the
scope of the FTCA; and, second, that Plaintiff’s administrative complaint (Form SF95, ECF No.
8-1) did not provide sufficient information to enable the agency to conduct its own investigation
into the claim. ECF No. 12 at 2-3. Defendant supported its contention that Dr. Savoca was not
an employee of the United States with a second declaration by Tamara Nichols to that effect.
ECF No. 12-1. Plaintiff filed a reply on July 23, 2015, in which he contested Defendant’s
second argument—that Plaintiff’s administrative notice was insufficient. ECF No. 13. Plaintiff
left unrebutted Defendant’s assertion that Dr. Savoca was not an employee of the United States.
Based upon these facts, the court issued an Opinion and Order on July 24, 2015. ECF No. 14. The court concluded that it lacked jurisdiction over the Complaint because the
Complaint did not allege that Plaintiff suffered injury caused by an employee of the United
States. Id. Furthermore, the court found that the Proposed Amended Complaint also failed to
allege a tort caused by an employee of the United States, and, therefore, it did not cure the
jurisdictional defect. Id. Accordingly, the court denied as futile Plaintiff’s motion to amend the
Complaint and the court granted Defendant’s 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction. Id.
Now, in his Rule 59(e) Motion, Plaintiff again moves the court to permit Plaintiff to file an Amended Complaint in this action to cure the issue of lack of subject matter jurisdiction.
ECF No. 16. Plaintiff asserts his request upon the grounds that the court “misread and
misapprehended the plaintiff’s Proposed Amended Complaint and erred in denying the plaintiff’s
motion to amend.” Id.
II. Legal Standard Rule 59 motions must not “be made lightly” because “[r]econsideration of a previous order is an extraordinary remedy, to be used sparingly in the interests of finality and conservation
of judicial resources.” Crossman Cmtys. of N.C., Inc. v. Harleysville Mut. Ins. Co. , No. Civ. A.
4:09-1379, 2014 WL 108316 at *1 (D.S.C. Jan 8. 2014) (quoting Nelson v. Sam's Club , No.
4:10-3020-RBH, 2011 WL 2559548 at *1 (D.S.C. June 28, 2012)); see also Pac. Ins. Co. v. Am.
Nat'l Fire Ins. Co. , 148 F.3d 396, 403 (4th Cir. 1998) (“In general, reconsideration of a judgment
after its entry is an extraordinary remedy which should be used sparingly.”). The court may
grant relief under Rule 59(e): “(1) to accommodate an intervening change in controlling law; (2)
to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent
manifest injustice.” Pac. Ins. Co. , 148 F.3d at 403.
A finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” United States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948). “Where
there are two permissible views of the evidence, the factfinder's choice between them cannot be
clearly erroneous.” Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 574 (1985).
“Manifest injustice occurs where the court ‘has patently misunderstood a party, or has made a
decision outside the adversarial issues presented to the Court by the parties, or has made an error
not of reasoning but of apprehension . . . .’” Quinton v. Toyota Motor Corp. , No. CIV. A. 1:10-
02187, 2014 WL 526332 at *2 (D.S.C. Feb. 7, 2014) (quoting Campero USA Corp. v. ADS
Foodservice, LLC , 916 F. Supp. 2d 1284, 1292-93 (S.D. Fla. 2012)).
A party moving pursuant to Rule 59 must demonstrate more than “mere disagreement” with the court's order to succeed on a Rule 59(e) motion. Hutchinson v. Staton , 994 F.2d 1076,
1082 (4th Cir. 1993). A Rule 59(e) motion is not a proper forum to “relitigate old matters, or to
raise arguments or present evidence that could have been raised prior to the entry of judgment.”
11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (3d ed.
1998). [1]
III. Discussion
In denying Plaintiff’s Motion to Amend and in granting Defendant’s Motion to Dismiss for Lack of Jurisdiction, the court erred in concluding that amendment would be futile. Upon
reconsideration, Plaintiff’s Proposed Amended Complaint cures the jurisdictional defect.
The burden of proving subject matter jurisdiction in response to a Rule 12(b)(1) motion is on the plaintiff. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). Here, Defendant
argues that Plaintiff has failed to allege any misconduct by any specific government employee
and that there has been “no mention or submission of any evidence rebutting Defendant’s
affidavits that either doctor [specifically mentioned in the Complaint or Proposed Amended
Complaint] is an employee of the United States.” ECF No. 17 at 2. However, Plaintiff does not
dispute that Defendant is not liable for the acts and omissions of the government contractors, Dr.
King and Dr. Savoca. ECF No. 16-1 at 3. Instead, Plaintiff’s Proposed Amended Complaint
alleges a failure to disclose a risk of the ablation procedure, a failure to obtain informed consent,
and additional negligence claims “based on the acts and omissions of VA doctors, not Dr.
Savoca.” Id. at 2. These allegations against United States’ employees are sufficient for the court
to assume jurisdiction over this claim.
Furthermore, Plaintiff is not required to plead the specific names of the doctors who Plaintiff alleges committed negligence in his treatment. Plaintiff, however, is required to file with
the administrative agency “(1) a written statement sufficiently describing the injury to enable the
agency to begin its own investigation, and (2) a sum certain damages claim.” 28 U.S.C. §
2675(a) (2012). Defendant contends that the allegations in the administrative claim’s written
statement do not align with those in the Proposed Amended Complaint, and that this is grounds
to find lack of jurisdiction. However, before making this determination, the court needs
additional information regarding the investigation performed by the VA. Therefore, this ruling is
best left for after limited discovery. Accordingly, the court will hold in abeyance the Motion to
Dismiss for Lack of Jurisdiction to allow the parties to conduct limited discovery to address the
adequacy of notice provided to Defendant by Plaintiff’s Form SF95.
In sum, leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P.
15(a). Here, justice requires the court reconsider its ruling, grant Plaintiff’s Proposed Amended
Complaint, give the parties a 30 day period of limited discovery, and subsequently, allow
Defendant the opportunity to amend the Motion to Dismiss for Lack of Jurisdiction.
IV. Conclusion For the reasons stated herein, the Motion to Alter or Amend Judgment pursuant to Fed. R.
Civ. P. 59(e) filed by Plaintiff David C. Belton, is GRANTED . The court’s Order and Opinion
granting Defendant’s Motion to Dismiss and denying Plaintiff’s Motion to Amend the Complaint
and the Judgment in favor of the United States of America are VACATED . Upon
reconsideration, Plaintiff’s Motion to Amend the Complaint, ECF No. 11, is GRANTED .
However, Defendant’s 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, ECF
No. 8, is HELD IN ABEYANCE , with leave to Defendant to amend the Motion to Dismiss for
Lack of Subject Matter Jurisdiction at the conclusion of a limited discovery period of 30 days.
IT IS SO ORDERED.
/s/ Margaret B. Seymour________ Margaret B. Seymour Senior United States District Judge Columbia, SC
November 3, 2015
[1] The FTCA only waives immunity for the torts of federal employees. The FTCA expressly excludes “any contractor with the United States” from coverage in the Act’s waiver of immunity. Under the FTCA, Department of Veterans Affairs’ doctors at the Dorn VA Medical Center are federal employees against whom Plaintiff may bring suit. 28 U.S.C. § 2671 (2012).
[1] The standard for motions pursuant to Rule 59(e) also applies to motions brought pursuant to Rule 52. See Ridgeway v. Stevenson , Civ. A. No. 3:10-490, 2011 WL 1466325 at *1 n.1 (D.S.C. Apr. 15, 2011) ("[I]t appears that [the] standard under Rule 52 is identical to the requisite standard under Rule 59(d)") (citing Wahler v. Countrywide Home Loans, Inc. , No. 1:05CV349, 2006 WL 3327074, at *1 (W.D.N.C. Nov. 15, 2006)).