United States District Court, D. Maine
TIMOTHY W. MANSIR, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER ON THE GOVERNMENT'S MOTION TO
LEVY U.S. DISTRICT JUDGE
W. Mansir, a veteran of the United States Marine Corps,
alleges that he was negligently treated by Dr. Thomas
Franchini (hereinafter “Franchini”), a former
Veterans Affairs Podiatrist at the Togus Veterans Affairs
Medical Center (the “VAMC”). He also alleges that
the VAMC and Franchini fraudulently concealed Franchini's
negligence, preventing him from asserting his rights in a
timely fashion. In his Third Amended Complaint (ECF No. 93),
Mansir brings claims against the federal government
(alternatively, “the VAMC” or the
“Government”) for vicarious liability for
Franchini's alleged negligence (Count I); negligent
infliction of emotional distress (Count II); and fraudulent
concealment (Count III). The Government has moved to dismiss
the Third Amended Complaint for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1) (ECF No. 99).
the second motion to dismiss that the Government has filed in
this case. In an Order issued in February 2016, I resolved
almost all of the issues raised in the Government's first
Motion to Dismiss in favor of the Government, ruling that
Maine's three-year limitations period for bringing claims
against health care providers, 24 M.R.S.A. § 2902
(2017), is a statute of repose and not a statute of
limitations, and that § 2902 is not preempted by the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.A.
§ 2401(b) (2017). See ECF No. 34 at 40. The
Government argues that because § 2902 is a statute of
repose, the three-year repose period for the medical
negligence alleged by Mansir began to run no later than May
2009-the month of Mansir's last surgery performed by
Franchini-rather than from January 2013, when Mansir
discovered the facts underlying his claims. Thus, the claims
alleged by Mansir are time-barred absent some reason in law
or equity for tolling the statute of repose.
asserts that the statutory tolling provision in 14 M.R.S.A.
§ 859 (2017) related to fraudulent concealment applies
to his claims:
If a person, liable to any action mentioned, fraudulently
conceals the cause thereof from the person entitled thereto,
or if a fraud is committed which entitles any person to an
action, the action may be commenced at any time within 6
years after the person entitled thereto discovers that he has
just cause of action[.]
14 M.R.S.A. § 859. If § 859 governs Mansir's
claims, its six-year limitations period “starts to run
when the existence of the cause of action or fraud [was]
discovered or should have been discovered by the plaintiff in
the exercise of due diligence and ordinary prudence.”
Westman v. Armitage, 215 A.2d 919, 922 (Me. 1966).
Extending the limitations period from three years from the
date of the alleged tortious act in accordance with §
2902's statute of repose, to six years from the time
Mansir discovered the alleged tortious act, brings
Mansir's claims within § 859's six-year statute
of limitations. Accordingly, I deferred a final ruling on the
applicability of § 859 in connection with the first
Motion to Dismiss to afford Mansir, and the plaintiffs in
five related actions,  the opportunity to conduct limited
discovery on the issue of fraudulent concealment and to seek
to amend their complaints on the basis of that discovery.
reasons explained below, I conclude that a genuine dispute of
material fact exists with regard to whether the VAMC and
Franchini fraudulently concealed instances of medical
malpractice from Mansir, and that these facts are
inextricably intertwined with the merits of Mansir's
claims. Thus, I cannot yet determine whether, as a matter of
law, § 859 governs Mansir's claims, and I deny the
Motion to Dismiss as to Count I (Negligence) and Count II
(Negligent Infliction of Emotional Distress) for that reason.
The Government also moves to dismiss Count II (Negligent
Infliction of Emotional Distress) and Count III (Fraudulent
Concealment) for lack of subject matter jurisdiction pursuant
to restrictions established by the FTCA in 28 U.S.C.A.
§§ 2675(a) and 2680(h), and, as explained below, I
conclude that Count III should be dismissed.
Government seeks to dismiss the Third Amended Complaint for
lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1). A federal court generally may
not rule on the merits of a case without first determining
that it has jurisdiction over the category of claim in the
suit, i.e., subject matter jurisdiction. See Sinochem
Int'l Co. v. Malaysia Int'l Shipping Corp., 549
U.S. 422, 430-31 (2007).
defendant may challenge the court's subject matter
jurisdiction pursuant to Rule 12(b)(1) in two ways: facially
or factually. See Torres-Negrón v. J & N
Records, LLC, 504 F.3d 151, 162 (1st Cir. 2007). In a
facial attack, the court accepts as true those allegations in
the complaint-“sometimes augmented by an explanatory
affidavit or other repository of uncontested
facts”-that are relevant to jurisdiction, draws all
reasonable inferences from them in the plaintiff's favor,
and determines whether they are sufficient to establish the
court's subject matter jurisdiction. Valentin v.
Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001);
see also Torres-Negrón, 504 F.3d at
defendant may also mount a facial challenge to subject matter
The second way to engage the gears of Rule 12(b)(1) is by
controverting the accuracy (rather than the sufficiency) of
the jurisdictional facts asserted by the plaintiff and
proffering materials of evidentiary quality in support of
that position. Unlike, say, a motion for summary judgment
under Federal Rule of Civil Procedure 56(c), this type of
challenge under Federal Rule of Civil Procedure
12(b)(1)-which we shall call a “factual
challenge”-permits (indeed, demands) differential
factfinding. Thus, the plaintiff's jurisdictional
averments are entitled to no presumptive weight; the court
must address the merits of the jurisdictional claim by
resolving the factual disputes between the parties. In
conducting this inquiry, the court enjoys broad authority to
order discovery, consider extrinsic evidence, and hold
evidentiary hearings in order to determine its own
Valentin, 254 F.3d at 363 (internal citations and
footnote omitted). “In a situation where the parties
dispute the predicate facts allegedly giving rise to the
court's jurisdiction, the district court will often need
to engage in some preliminary fact-finding.” Skwira
v. United States, 344 F.3d 64, 71-72 (1st Cir. 2003).
in a factual challenge, the necessary facts are relevant both
to jurisdiction and to the merits of the plaintiff's
case, however, “the standard applicable to a motion for
summary judgment” applies.
Torres-Negrón, 504 F.3d at 163 (quoting
Autery v. United States, 424 F.3d 944, 956 (9th Cir.
2005) (internal quotation marks omitted)). If the material
jurisdictional facts are not in dispute and the moving party
is entitled to prevail on the jurisdictional question as a
matter of law, then the motion to dismiss is granted.
Torres-Negrón, 504 F.3d at 163; Me. Human
Rights Comm'n v. Sunbury Primary Care, P.A., 770
F.Supp.2d 370, 397 (D. Me. 2011). On the other hand,
“[s]hould the plaintiff present evidence showing that
the relevant facts are genuinely disputed, the case proceeds
to trial and the jurisdictional dispute will be reevaluated
once the factfinder has resolved the issues of fact.”
Sunbury, 770 F.Supp.2d at 397 (citing
Torres-Negrón, 504 F.3d at 163); see also
Valentin, 254 F.3d at 363 n.3 (“[F]or cases in
which the jurisdictional facts, though genuinely disputed,
are inextricably intertwined with the merits of the case . .
. the court may defer resolution of the jurisdictional issue
until the time of trial.”). At trial, “[i]t is
the plaintiff's burden to prove the existence of subject
matter jurisdiction.” Aversa v. United States,
99 F.3d 1200, 1209 (1st Cir. 1996) (citing Murphy v.
United States, 45 F.3d 520, 522 (1st Cir. 1995)).
Third Amended Complaint alleges facts intended to demonstrate
fraudulent concealment in two ways: first, fraudulent
concealment allegedly committed by Franchini in misleading
Mansir as to the results of his initial surgery and the
reasons for the continuing problems he experienced with his
ankle; and second, fraudulent concealment allegedly committed
by the VAMC in concealing and/or failing to disclose
Franchini's negligent treatment to Mansir. I address, in
order, (1) the Government's challenges to Mansir's
allegations of fraudulent concealment; (2) whether a special
relationship existed between Mansir and the VAMC that imposed
a duty on the VAMC to disclose Franchini's alleged
negligence to Mansir; and (3) the Government's contention
that Count II and Count III be dismissed pursuant to 28
U.S.C.A. §§ 2675(a) and 2680(h).
Fraudulent Concealment under 14 M.R.S.A. § 859
benefit from the six-year statute of limitations provided by
§ 859, Mansir must establish that the VAMC or Franchini,
acting as its employee, actively concealed facts from him and
that he relied on the concealment to his detriment. Brawn
v. Oral Surgery Assocs., 819 A.2d 1014, 1026 (Me. 2003).
“Active concealment of the truth connotes steps taken
by a defendant to hide the true state of affairs from the
plaintiff.” Kezer v. Mark Stimson Assocs., 742
A.2d 898, 905 (Me. 1999) (internal quotation marks omitted).
Active concealment does not require an affirmative false
statement and “may consist as well in the concealment
of what is true as in the assertion of what is false.”
Horner v. Flynn, 334 A.2d 194, 203 (Me. 1975),
overruled on other grounds by Taylor v. Comm'r of
Mental Health & Mental Retardation, 481 A.2d 139
(Me. 1984); see also Sprague Energy Corp. v. Massey Coal
Sales Co., No. 05-222-P-S, 2006 WL 696197, at *17 (D.
Me. Mar. 15, 2006) (“Fraud need not necessarily take
the form of an express false statement; rather, it can be
predicated on active concealment of the truth.”).
plaintiff alleges fraudulent concealment through the active
concealment of facts, the court must assess the allegations
against the elements of fraud: (1) the making of a false
representation; (2) of a material fact; (3) with knowledge of
its falsity or in reckless disregard of whether it is true or
false; (4) for the purpose of inducing another to act upon
it; and (5) justifiable and detrimental reliance by the other
person. Brawn, 819 A.2d at 1026; see also Harris
Mgmt., Inc. v. Coulombe,151 A.3d 7, 16 n.7 (Me.
2016). “In alleging fraud or mistake, a
party must state with particularity the ...