
    Stephen LUKAS, Plaintiff, v. UNITED STATES of America, Defendant.
    CIVIL ACTION NO. 14-40152-TSH
    United States District Court, D. Massachusetts.
    Signed 09/24/2015
    
      David D. Dishman, Law Office of David D. Dishman, Boston, MA, Matthew J. Fo-gelman, Fogelman & Fogelman, Newton, MA, for Plaintiff.
    Jessica P. .Driscoll, United States Attorney’s Office, Boston, MA, for Defendant.
   ORDER AND MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD CORRENA LUKAS AS PLAINTIFF AND PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD CAMERON MACKAY AS DEFENDANT

HILLMAN, DISTRICT JUDGE

Pending before the Court are Plaintiffs motions to (1) amend his complaint to add Correna Lukas as a plaintiff; and (2) amend his complaint to add Cameron Mac-Kay as a defendant. For the following reasons, Plaintiffs motion is granted with respect to adding Correna Lukas as a plaintiff and denied with respect to adding Cameron Mackay as a defendant.

Background

On November 4, 2011, Stephen Lukas (Plaintiff) and Cameron MacKay were involved in a motor-vehicle accident in Leo-minster, MA. Plaintiff alleges that his vehicle was struck from behind by a vehicle driven by MacKay and that he suffered significant injuries as a result. Plaintiff brought suit against MacKay in Superior Court; on July 17, 2013, during the course of discovery, Plaintiff learned that MacKay had been employed by the United States Navy at the time of the accident.

On October 28, 2013, Plaintiff filed an administrative claim with the Office of the Judge Advocate General pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, seeking to recover from the United States damages for his injuries. Nearly one year later, on October 17, 2014, Plaintiffs wife, Correna Lukas, filed an administrative claim for her own damages relating to Plaintiffs injuries. Four days after that, Plaintiff filed suit against the United States in this Court, alleging negligence and negligent infliction of emotional distress. On February 6, 2015, both Plaintiffs and Correna Lukas’s administrative claims were denied by the Office of the Judge Advocate General. Plaintiff then moved on April 6, 2015 to amend his complaint to add Correna Lukas as a plaintiff in this lawsuit, so that she could assert her own claims for the loss of her husband’s consortium. On July 6, 2015, Plaintiff filed an additional motion to amend his complaint, this time to add Cameron MacKay as a defendant.

Discussion

Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend his or her complaint before trial with the court’s leave, and “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The grant or denial is within the discretion of this Court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Leave should be freely given absent an apparent or declared reason, “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment ....” Klunder v. Brown Univ., 778 F.3d 24, 34 (1st Cir.2015) (quoting Foman, 371 U.S. at 182, 83 S.Ct. 227).

1. Motion for Leave to Amend to Add Correna Lukas as Plaintiff

Plaintiff argues that his motion should be granted because it would be in the interest of justice to allow Correna Lukas to assert her claim for loss of consortium alongside her husband’s personal-injury claims. Plaintiff further asserts that Corre-na Lukas’s claim is timely because it did not accrue until Plaintiff learned that Mac-Kay had been employed by the United States' Navy. The United States, for its part, argues that Plaintiffs motion should be denied on the ground of futility; specifically, the United States avers that Correna Lukas’s loss-of-consortium claim is barred because she failed to file an administrative claim within two years of the accident.

“It is ‘elementary’ that the United States, as sovereign, is immune from suit unless it has consented to be sued.” Skwira v. United States, 344 F.3d 64, 72 (1st Cir.2003) (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)). The Federal Tort Claims Act (FTCA) “expressly waives the government’s sovereign immunity, permitting individuals to sue the government ‘for injury or loss , of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.’ ” Skwira, 344 F.3d at 73 (quoting 28 U.S.C. § 1346(b)). There are, however, constraints on this waiver, one of which is a statute of limitations: “‘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.’ ” Id. (quoting 28 U.S.C. § 2401(b)). “As with all waivers of sovereign immunity, the Supreme Court has warned that this limitation, which requires a timely presentation of tort claims against the government, must be strictly construed.” Id. (citing United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)).

The pertinent issue regarding Plaintiffs motion to add Correna Lukas as a plaintiff is the determination of when Correna Lu-kas’s loss-of-consortium claim accrued. If this claim accrued on the date of the accident in November of 2011, then her administrative claim filed in October of 2014— nearly three years later — would have been untimely. I am of the opinion, however, that Correna Lukas’s claim could not have accrued before July 17, 2013, which is the date on which Plaintiff discovered that MacKay was a federal employee at the time of the accident.

“The general rule, within the meaning of the FTCA, is that a tort claim accrues at the time of the plaintiffs injury.” Skwira, 344 F.3d at 73 (citing Attallah v. United States, 955 F.2d 776, 779 (1st Cir.1992)). In United States v. Kubrick, 444 U.S. 111, 113, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), however, “the Supreme Court recognized that a ‘discovery’ rule applies in the context of medical malpractice claims,” meaning that “a claim ‘accrues’ when an injured party ‘knows both the existence and the cause of his injury.’ ” Skwira, 344 F.3d at 73 (quoting Kubrick, 444 U.S. at 113, 100 S.Ct. 352). In Skwira, the First Circuit Court of Appeals extended this discovery rule beyond the realm of medical malpractice claims to encompass other torts as well. 344 F.3d at 75.

As to the issue of when an FTCA plaintiff learns that the alleged tortfeasor was a federal employee, the Skwira court held that, in the medical malpractice context, the discovery rule will not apply to this element of the claim “[ajbsent extraordinary circumstances.” Id. at 76-77 (citing Gould v. U.S. Dept. of Health & Human Svcs., 905 F.2d 738, 745 (4th Cir.1990)). Crucially, however, with regard to a plaintiffs discovery of a defendant’s federal status in woTC-medical-malpractice cases, the Skwira court held as follows:

Outside the medical malpractice context, ... the identity of the individual(s) responsible for an injury may be less evident, and a ’plaintiff may have less reason to suspect governmental involvement. ... [Ojutside the medical malpractice context,0 the proper subject of knowledge for accrual purposes under the FTCA is (1) the fact of injury and (2) the injury’s causal connection with the government.

Skwira, 344 F.3d at 77 (quoting Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir.1999)) (citing Kubrick, 444 U.S. at 123-24 & n. 10, 100 S.Ct. 352).

Accordingly, in determining the accrual date of Correna Lukas’s loss-of-eonsortium claim, the discovery rule applies with regard to the date on which she found out that MacKay was a federal employee and thus learned that her alleged injury had a “causal connection with the government.” Id. Although under Massachusetts law a loss-of-consortium claim is independent of the underlying personal injury claim, the factual predicate to this claim is the accident involving Plaintiff and Mac-Kay, which allegedly caused the significant injuries to Plaintiff. See Genereux v. Am. Beryllia Corp., 577 F.3d 350, 363 (1st Cir.2009) (applying Massachusetts law) (citing Olsen v. Bell Tel. Labs., Inc., 388 Mass. 171, 445 N.E.2d 609, 612 (1983)). Because Correna Lukas did not learn of MacKay’s federal employment until July 17, 2013, her claim could not have accrued pursuant to the FTCA before this date; she filed an administrative action on October 17, 2014, which was within two years of July 17, 2013. Therefore, her proposed loss-of-consortium claim before this Court is not barred by the FTCA’s statute of limitations.

There is no suggestion in this case that Plaintiff has a dilatory motive or has acted in bad faith in moving to amend his complaint to add Correna Lukas as a plaintiff. See Foman, 371 U.S. at 182, 83 S.Ct. 227. Furthermore, allowing this amendment will not cause undue delay or prejudice to the United States, as trial is not imminent and Correna Lukas’s loss-of-consortium claim arises from the same" incident as Stephen Lukas’s direct tort claims. Plaintiffs motion for leave to amend to add Correna Lukas as a plaintiff in this lawsuit is granted.

2. Motion for Leave to Amend to Add Cameron MacKay as Defendent.

Unlike the issue of MacKay’s status as a federal employee, Plaintiff has long been aware of MacKay’s identity as the driver of the vehicle that allegedly caused his injuries. There is no indication that MacKay’s identify was unknown at the time of the accident, and Plaintiff filed suit against MacKay personally in Superir Court in February of 2013. According to Plaintiff, the Superior Court case was dismissed “once it became apparent that the United States was MacKay’s employer and needed to be sued in federal court.” (Plaintiffs Motion to Amend, Docket No. 21, at 2.) Plaintiff has provided no explanation for why he did not include MacKay as a defendant when he filed suit in this Court in October of 2014; nor has he explained why he waited nine months after filing suit to move to amend his complaint to add MacKay as a defendant. In my opinion, justice does not require granting Plaintiffs motion under these circumstances. See Foman, 371 U.S. at 182, 83 S.Ct. 227.

Conclusion

For the foregoing reasons, Plaintiffs Motion for Leave to Amend Complaint to Add Correna Lukas as Plaintiff (Docket No. 9) is granted, and Plaintiffs Motion for Leave to Amend Complaint to Add Cameron MacKay as a Defendant (Docket No. 21) is denied.

SO ORDERED. 
      
      . In FTCA cases, the action is governed by the substantive tort law of the state in which the tortious act allegedly occurred. 28 U.S.C.A. § 1346(b)(1); Bolduc v. United States, 402 F.3d 50, 56 (1st Cir.2005) (citing FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)).
     
      
      . The United States brings my attention to the recent case of Desir v. Steward Health Care Sys., LLC, No. 14-CV-13629-ADB, 109 F.Supp.3d 401, 2015 WL 3682483 (D.Mass. June 15, 2015), and argues that Plaintiffs motion should be dealt with in similar fashion. Desir, however, was a case that concerned the issue of equitable tolling, whereas the issue here is the date upon which Correna Lukas’s claim accrued.
     