Morris v. Giovan (CA1 11/12/10)

This holds that a Federal Tort Claims Act case does not toll the statute of limitations if it is dismissed for lack of subject-matter jurisdiction.

in 2003 Giovan operated on Morris’ knee at Phoenix Indian Medical Center. In 2004 Morris sued “John Doe” for malpractice in Maricopa County, purportedly to obtain medical records as he claims not to have known whom to sue; suit was dismissed for lack of service. In August 2006 Morris filed in District Court an FTCA claim against the US and also against Phoenix Indian and Giovan, asking the court to take supplemental jurisdiction over the state malpractice claim. That was dismissed in October 2007 because Morris wasn’t suing a federal employee.

Meanwhile, in March 2007, he had filed another state court case, this time naming Giovan. Having blown the statute of limitations, Morris lost that on summary judgment in December. He did not appeal. But in April 2008 he filed a Rule 60(c)(6) motion, arguing that his federal case tolled the statute. (Whether he had made the same argument in opposition to summary judgment – and if not, why not – isn’t explained.) That was denied on its merits (a footnote points out that 60(c)(6) can’t be used for an error of substantive law but Giovan didn’t raise the issue). Morris appealed, even though the minute entry wasn’t signed; his appeal was suspended until it was.

Morris’ claim that his FTCA claim tolled the limitations period is based on a federal statute that says so. But the U.S. Supreme Court held (Raygor), as our Court of Appeals interprets it, that the tolling statute does not apply to supplemental state-law claims if the FTCA claim was dismissed for lack of subject-matter jurisdiction (Raygor was dismissed on 11th-Amendment grounds). The theory is that if the federal court had no subject-matter jurisdiction, it also had no power over supplemental state claims.

Perhaps we shouldn’t complain when Division One gives us an opinion that is only nine pages long. On the other hand, it also has nine footnotes. And it consists, basically, of a discussion of just one case.

As for counsel, perhaps you should give him credit for spending seven years and three lawsuits protecting his client’s claim. We won’t suggest what was perhaps really being protected, at a cost to the client of five years or more. We do wonder how many years ago he put it on notice.


(link to opinion)