Patrick D. Poppe v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK D. POPPE,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 15-17132
D.C. No. 2:14-cv-02103-KJD-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted April 18, 2017**
San Francisco, California
Before: D.W. NELSON and IKUTA, Circuit Judges, and BURGESS,*** Chief
District Judge.
FILED
APR 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Timothy M. Burgess, United States Chief District
Judge for the District of Alaska, sitting by designation.

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Patrick Poppe (“Poppe”) appeals the district court’s order dismissing his
claim for dental malpractice brought against the United States under the Federal
Tort Claims Act (“FTCA”) as time barred. We have jurisdiction under 28 U.S.C. §
1291, and we affirm. Because the parties are familiar with the facts, we do not
recount them here.
The district court correctly dismissed Poppe’s FTCA action as time barred
by the FTCA’s six-month limitation period set forth at 28 U.S.C. § 2401(b). We
reject Poppe’s contention that the filing of his initial FTCA complaint,
subsequently dismissed without prejudice, excuses the untimely filing of his
second FTCA action. O’Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir.
2006) (“In instances where a complaint is timely filed and later dismissed, the
timely filing of the complaint does not ‘toll’ or suspend the . . . limitation period.
In such cases, the dismissal of the original suit, even though labeled as without
prejudice, nevertheless may sound the death knell for the plaintiff’s underlying
cause of action if the sheer passage of time precludes the prosecution of a new
action.” (citations and internal quotation marks omitted)).
The district court also correctly held that the doctrine of equitable tolling
does not apply to save Poppe’s otherwise untimely claim. Although the district
court mistakenly characterized the statute of limitations at 28 U.S.C. § 2401(b) as
jurisdictional, it nonetheless applied the correct standard to determine whether the
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doctrine of equitable tolling might apply to Poppe’s FTCA claim. See Wong v.
Beebe, 732 F.3d 1030, 1047, 1052 (9th Cir. 2013) (en banc) (holding that Ҥ
2401(b) is a nonjurisdictional claim-processing rule subject to the presumption of
equitable tolling” and that a plaintiff who seeks equitable tolling in an FTCA
action “bears the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstances stood
in his way” (quoting Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221,
227 (2012))), aff’d sub nom. United States v. Wong, 135 S. Ct. 162 (2015).
Applying that standard, the district court correctly held that Poppe is not
entitled to equitable tolling of the FTCA’s six-month time limit. Poppe has not
identified any extraordinary circumstance that prevented him from timely filing his
FTCA complaint, and additional discovery on the issue would reveal none. See
Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 756 (2016) (“But
we have expressly characterized equitable tolling’s two components as ‘elements,’
not merely factors of indeterminate or commensurable weight. And we have
treated the two requirements as distinct elements in practice, too, rejecting requests
for equitable tolling where a litigant failed to satisfy one without addressing
whether he satisfied the other.” (citations omitted)).
AFFIRMED.
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