RICHARD D. BENNETT, District Judge.
This pro se action is the second such action filed by Plaintiff Robert D. Thompson ("Plaintiff" or "Mr. Thompson") regarding a terminated contract with the United States Naval Academy Athletic Association. In the first action, Thompson v. Naval Academy Athletic Association, Civ. A. No. RDB-12-2676, Mr. Thompson brought suit against the Naval Academy Athletic Association (the "NAAA), alleging that the NAAA breached a written contract between the parties by terminating said contract prior to the expiration of the three-year term.
In the present action, Mr. Thompson asserts two claims arising from same contract at issue in Thompson v. Naval Academy Athletic Association (the "Contract"). Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), he alleges that Defendant United States of America ("Defendant" or "the Government"), through the United States Naval Academy (the "Naval Academy"), committed certain fraudulent misrepresentations to induce him into signing the Contract (Count I). Amended Compl. 11, ECF No. 9-1. These actions were, according to Plaintiff, grossly negligent (Count II). Id. at 12. He seeks damages of $4,175,000, in addition to the $120,085.48 previously awarded. Id.
Currently pending are Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment (ECF No. 5); Plaintiff's Motion for Leave to Amend Complaint (ECF No. 9); and Defendant's Motion to Dismiss the Amended Complaint, or in the alternative, for Summary Judgment (ECF No. 10). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment (ECF No. 5) is MOOT;
The background facts of this action were fully set forth in Thompson v. Naval Academy Athletic Association, 2014 WL 7240054, at *1-2. To summarize, Plaintiff Robert Thompson entered into a "Letter Agreement" with the NAAA on October 29, 2010. Id. at *1; Amended Compl. ¶ 12. After a review of the Naval Academy's financial records revealed that the Contract was not signed by an officer with contracting authority, Commander Justin Francis of the Financial Management Assessment Group recommended that the Contract be terminated. Amend. Compl. ¶¶ 21-23. Mr. Thompson received notice of the termination of the Contract on May 20, 2011. Id. ¶ 18. Through Thompson v. Naval Academy Association, he subsequently sought full payment under the Contract. Id. ¶ 19; see generally Thompson v. Naval Academy Athletic Ass'n, 2014 WL 7240054. As noted supra, this Court determined that the NAAA breached the Contract only to the extent that the NAAA terminated the agreement without 180-day notice. Thompson v. Naval Academy Athletic Ass'n, 2014 WL 7240054, at *3-4. This Court thus awarded Mr. Thompson $120,085.48 in damages. Id.
Of relevance to the present action, Plaintiff subsequently filed an administrative tort claim seeking $4,175,000 in damages with the Department of the Navy (the "Navy") pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA"), on March 2, 2015. Def.'s Mot. to Dismiss Ex. 4, ECF No. 5-5 (Copy of Plaintiff's Administrative Complaint).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P 8(a)(2). The Government has moved to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The Supreme Court's opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), "require that complaints in civil actions be alleged with greater specificity than previously was required." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated "[t]wo working principles" that courts must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true the factual allegations contained in the complaint, the court is not so constrained when the factual allegations are conclusory or devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). Moreover, a court need not accept any asserted legal conclusions drawn from the proffered facts. Iqbal, 556 U.S. at 678. (stating that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to plead a claim). In the context of pro se litigants, however, pleadings are "to be liberally construed," and are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); accord Brown v. N.C. Dept. of Corr., 612 F.3d 720, 724 (4th Cir. 2010).
Second, even a pro se complaint must be dismissed if it does not allege "a plausible claim for relief." Iqbal, 556 U.S. at 679; see also O'Neil v. Ponzi, 394 F. App'x. 795, 796 (2d Cir. 2010).Although a "plaintiff need not plead the evidentiary standard for proving" her claim, she may no longer rely on the mere possibility that she could later establish her claim. McCleary-Evans v. Maryland Department of Transportation, State Highway Administration, 780 F.3d 582, 584 (4th Cir. 2015) (emphasis omitted) (discussing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) in light of Twombly and Iqbal).
In moving to dismiss the subject Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant argues that Plaintiff's claims are time-barred under the FTCA statute of limitations, 28 U.S.C. § 2401(b).
As the United States Court of Appeals for the Fourth Circuit has explained, a "key jurisdictional prerequisite to filing suit under the FTCA involves the presentation of an administrative claim to the government within two years of the incident." Kokotis, 223 F.3d at 278 (citing 28 U.S.C. § 2401(b)). Specifically, the FTCA commands that "a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues[.]" 28 U.S.C. § 2401(b) (emphasis added). Although state law determines whether the Government is liable under the FTCA, it is federal law that governs when a cause of action accrues. Gould v. United States Dep't of Health & Human Servs., 905 F.2d 738, 742 (4th Cir. 1990) (en banc) (internal citations omitted), cert. denied, 498 U.S. 1025 (1991). As such, a cause of action accrues under the FTCA "when the plaintiff knows or, in the exercise of due diligence, should have known both the existence and the cause of his injury." Id.
Recently, the Supreme Court reconsidered whether the time limitations set forth by the FTCA are jurisdictional or non-jurisdictional. In United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1631-32 (2015), the Court noted that characterizing a limitations period as jurisdictional has "harsh consequences," as "a litigant's failure to comply with the bar deprives a court of all authority to hear a case." Absent a clear statement from Congress that the time limitation is jurisdictional, the limitation will be classified as non-jurisdictional. Id. at 1632. The time limitations of the FTCA are one such example of a limitations period where Congress did not expressly categorize them as jurisdictional. Id. at 1632-33. The Court thus concluded that the FTCA time limitations are non-jurisdictional, and thereby subject to equitable tolling. Id. at 1633.
In this case, Mr. Thompson attempted to comply with the terms of the FTCA by filing an administrative claim with the appropriate federal agency—the Department of the Navy. Yet, he failed to file that claim within the strict limitations period set forth by 28 U.S.C. § 2401(b). Mr. Thompson's cause of action began to accrue on May 20, 2011, the day he received notice that the Contract was terminated. His injuries stem from the termination of the Contract; absent such termination, he would have no cause of action. Mr. Thompson, however, filed his administrative claim on March 2, 2015, nearly two years after the FTCA limitations period expired.
Plaintiff's efforts to prove timeliness are unpersuasive. He claims that he did not learn of Defendant's allegedly tortious actions until August 8, 2014 through September 3, 2014. See Amended Compl. ¶¶ 23-36. He was thus well within the limitations period when he filed his administrative claim on March 2, 2015. This argument, however, ignores that the FTCA does not require actual knowledge of the injury. Rather, the cause of action begins to accrue also when reasonable due diligence would have exposed such injury. Gould, 905 F.2d at 742. When the Contract was terminated, Plaintiff could have discovered, with reasonable due diligence, the allegedly tortious actions of employees of the Defendant.
This failure to exercise reasonable due diligence to discover his alleged injuries similarly precludes the equitable tolling of the limitations period. Mr. Thompson filed his complaint in the first action, Thompson v. Naval Academy Athletic Association, on September 7, 2012, still within the two-year limitations period for an FTCA claim. See Thompson v. Naval Academy Athletic Ass'n, RDB-12-2676. Although he did not assert a claim under the FTCA in that action, all claims stem from the same underlying incident—the termination of the Contract. Plaintiff's filing of the first action shows that he had the tools to investigate and "discover" any FTCA-related injuries, but failed to act until March 2, 2015. He offers no plausible explanation for the delay. This Court will not toll the two-year statute of limitations. As the Navy also concluded, Mr. Thompson's claims under the FTCA are "forever barred" as untimely.
For the foregoing reasons, Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment (ECF No. 5) is MOOT; Plaintiff's Motion for Leave to Amend Complaint (ECF No. 9) is GRANTED; and Defendant's Motion to Dismiss the Amended Complaint, or in the alternative, for Summary Judgment (ECF No. 10), construed as a Motion to Dismiss, is GRANTED WITH PREJUDICE. Quite simply, this case is essentially identical to an earlier action in which this Court awarded the Plaintiff damages of $120,085.48 and is procedurally barred. This case is thus DISMISSED WITH PREJUDICE.
A separate Order follows.
