United States District Court, D. Colorado
REALITY TECHNOLOGY, INC.; IVAN DRINKS, SR.; and IVAN DRINKS, JR., Plaintiff,
UNITED STATES OF AMERICA, Defendants
For Reality Technology, Inc., Ivan Drinks, Sr, Ivan Drinks, Jr, Plaintiffs: M. Gabriel McFarland, LEAD ATTORNEY, Cyd Hunt, Evans & McFarland, LLC-Golden, Golden, CO.
For United States of America, Defendant: Elizabeth Mary Froehlke, LEAD ATTORNEY, U.S. Attorney's Office-Denver, Denver, CO.
ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Robert E. Blackburn, United States District Judge.
The matters before me are (1) the Recommendation of United States Magistrate Judge [#54], filed May 29, 2015, and (2) Plaintiffs' Objection to Recommendation of United States Magistrate Judge [#55], filed June 12, 2015. I overrule plaintiffs' objections, adopt the recommendation, and grant defendant's motion to dismiss.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed, and have considered carefully the recommendation, the objections, and the applicable caselaw. The recommendation is detailed and well reasoned. Plaintiffs' objections, while inventive, are ultimately without merit.
Plaintiffs insist they have alleged but a single claim for negligence implicating their dealings with the Small Business Administration (" SBA" ), and that therefore the magistrate judge erred in examining each of the thirteen separately enumerated examples of such alleged negligence set forth in the complaint to determine whether they fell within one of the exceptions to the Federal Tort Claims Act (" FTCA" ). See 28 U.S.C. § 2680. This argument fails to acknowledge that negligence does not exist apart from -- indeed, is defined by -- the duty one party owes to another to exercise reasonable care. There is no Gestalt theory of negligence that exists beyond or separate from such specific duties. Thus, regardless of the label plaintiffs would affix to their claim, it was entirely proper for the magistrate judge to consider individually each of the ways in which they allege the SBA breached its duty of care. Her conclusion that none of these allegations ultimately states a cause of action exempt from the FTCA is cogent and thoroughly persuasive and need not be reiterated here. Suffice to say that I agree with her excellent analysis in all particulars.
Moreover, and even if plaintiffs had stated a cognizable, exempt claim, I nevertheless also concur with the magistrate judge's conclusion that plaintiffs' claims are barred by limitations. As the magistrate judge aptly noted, there is no authority for plaintiffs' attempt to extend a " continuing tort" theory to toll limitations as to a cause of action for negligence. Plaintiffs' alleged injury was " definite and discoverable." Tiberi v. Cigna Corp., 89 F.3d 1423, 1430 (10th Cir. 1996) (citation and internal quotation marks omitted). Such injury was (or should have been) known to them no later than October 2008. The statute of limitations therefore had clearly expired at the time plaintiffs filed their administrative complaint in January 2011. For this reason, their claims must be dismissed with prejudice.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#54], filed May 29, 2015, is approved and adopted as an order of this court;
2. That the objections stated in Plaintiffs' Objection to Recommendation of United States Magistrate Judge [#55], filed June 12, 2015, are overruled;
3. That Defendant's Motion to Dismiss and For Judgment on the Pleadings [#33], filed ...