United States District Court, D. Oregon, Portland Division
KYLE THOMPSON, Personal Representative of the Estate of Michael Eugene McGinness, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
FINDINGS AND RECOMMENDATIONS
Yim You United States Magistrate Judge
Kyle Thompson, acting as personal representative of the
Estate of Michael Eugene McGinness (“decedent”),
has brought a claim against defendant United States of
America, alleging wrongful death and seeking damages under
the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671-2680. Plaintiff seeks leave to
amend the complaint to add allegations that Dr. Miranda
Devine (“Dr. Devine”) prescribed a nonsteroidal
anti-inflammatory drug (“NSAID”) to decedent on
April 12, 2013, and to increase the prayer for relief from $2
million to $5 million in noneconomic damages.
reasons that follow, plaintiff's motion should be denied.
passed away on April 17, 2013, after being treated at the
Portland Veterans Administration (“VA”) Hospital.
Compl. ¶ 6, ECF #1. On May 20, 2013, a member of
decedent's family requested his VA Hospital records
dating from January 2009 to May 5, 2013. Decl. of Brian Roth
(“Roth Decl.”) ¶ 2, ECF #56; id.,
Ex. 1, ECF #56-1. The hospital provided the records on June
27, 2013. Id. ¶ 3; id., Ex. 2, ECF
#56-2. In April 2015, the VA received administrative claim
forms seeking $2 million in damages for the wrongful death of
decedent. Richards Decl. ¶ 4, ECF #9.
15(a)(2) provides that “[t]he court should freely give
leave when justice so requires.” However, leave to
amend “is not to be granted automatically.”
Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th
Cir. 1990) (emphasis added). The court “may exercise
its discretion to deny leave to amend due to ‘undue
delay, bad faith or dilatory motive on part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party, .
. . [and] futility of amendment.'” Carvalho v.
Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th
Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178,
182 (1962)) (alterations in original).
Increase in Prayer Amount from $2 Million to $5
Plaintiff's request to amend the prayer from $2 million
to $5 million should be denied as futile because he has not
satisfied either of the exceptions to the sum certain
requirement under the FTCA.
Law of FTCA Sum Certain Requirement
“The jurisdiction of federal courts to entertain
actions for damages against the United States is limited by
the Federal Tort Claims Act.” Warren v. U.S.
Dept. of Interior Bureau of Land Mgmt., 724 F.2d 776,
777 (9th Cir. 1984) (en banc) (citing 28 USC § 2675(a)
(1982)). The FTCA waives the United States' sovereign
immunity for actions in tort, permitting claimants to sue the