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Thompson v. United States

United States District Court, D. Oregon, Portland Division

November 2, 2018

KYLE THOMPSON, Personal Representative of the Estate of Michael Eugene McGinness, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          FINDINGS AND RECOMMENDATIONS

          Youlee Yim You United States Magistrate Judge

         Plaintiff 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.

         For the reasons that follow, plaintiff's motion should be denied.

         BACKGROUND

         Decedent 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.

         FINDINGS

         I. FRCP 15(a)(2)

         Rule 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).

         II. Increase in Prayer Amount from $2 Million to $5 Million

          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.

         A.

         Relevant 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 ยง 2675(a) (1982)). The FTCA waives the United States' sovereign immunity for actions in tort, permitting claimants to sue the federal ...


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