11-766-cv Dominguez v. United States **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 
**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER**  **”). A**  **PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL**  **.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 13 thday of March, two thousand and twelve. 4 5 PRESENT: BARRINGTON D. PARKER, 6 RICHARD C. WESLEY, 7 Circuit Judges

. 8 SIDNEY H. STEIN, * 9 District Judge

. 10 11 12 JEREMIAH DOMINGUEZ, an infant, by his 13 mother and natural guardian Cynthia 14 Dominguez, CYNTHIA DOMINGUEZ, 15 individually, 16 17 Plaintiffs-Appellants , 18 19 -v.- 11-766-cv 20 21 UNITED STATES OF AMERICA, 22 23 Defendant-Appellee. 24 25 26 27 28 29 FOR APPELLANTS: LISA M. COMEAU (Michael B. Ronemus, 30

* Judge Sidney H. Stein, of the United States District Court for the Southern District of New York, sitting by designation.Ronald Podolsky, on the brief ), Ronemus & 1 Vilensky, LLP, New York, NY. 2 3 FOR APPELLEE: CRISTINE IRVIN PHILLIPS, Assistant United 4 States Attorney (Neil M. Corwin, 5 Assistant United States Attorney, on the 6 brief ), forPreet Bharara, United States 7 Attorney for the Southern District of New 8 York, New York, NY. 9 10 Appeal from the United States District Court for the 11 Southern District of New York (Cote, J. ) 12 13 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 14
**AND DECREED**that the judgment of the United States District 15 Court for the Southern District of New York be **AFFIRMED**
. 16 Plaintiffs-Appellants appeal from a judgment of the 17 United States District Court for the Southern District of 18 New York (Cote, J. ), dismissing their suit on the grounds 19 that it was untimely under the two-year statute of 20 limitations set forth in the Federal Tort Claims Act 21 (“FTCA”). See 28 U.S.C. § 2401(b). We assume the parties’ 22 familiarity with the underlying facts and procedural 23 history. 24 Although the parties raised some question as to whether 25 the statute of limitations in the FTCA is jurisdictional, we 26 need not address the issue here because it does not affect 27 our decision. Under the FTCA, “[t]he diligence-discovery 28 rule sets the accrual date at the time when, with reasonable 29

2diligence, the plaintiff has or . . . should have discovered 1 the critical facts of both his injury and its cause.” 2 A.Q.C. ex rel. Castillo v. United States , 656 F.3d 135, 140 3 (2d Cir. 2011) (internal quotation marks and citations 4 omitted); Valdez ex rel. Donely v. United States , 518 F.3d 5 173, 177 (2d Cir. 2008). In this case, the district court 6 held a hearing during which it heard testimony and argument. 7 The court found that Plaintiffs-Appellants were aware of the 8 critical facts of the injury and of the possibility of 9 iatrogenic harm shortly after Jeremiah Dominguez’s birth. 10 The court’s findings that Plaintiffs were aware of the 11 critical facts of the injury and of a possible iatrogenic 12 harm prior to February 12, 2007 were not clearly erroneous. 13 In addition, Plaintiffs forfeited any argument that 14 equitable tolling applies. See Raniola v. Bratton , 243 F.3d 15 610, 613 n.1 (2d Cir. 2001); Hamilton v. Atlas Turner, Inc. , 16 197 F.3d 58, 61-62 (2d Cir. 1999). We therefore affirm the 17 court’s dismissal of the complaint pursuant to the FTCA’s 18 statute of limitations. 19 Because we affirm the district court’s dismissal of 20 Appellants’ suit, their motion for summary reversal is 21 hereby **DENIED**
. 22 23

31 For the foregoing reasons, the judgment of the district 2 court is hereby **AFFIRMED**
. 3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 8 9

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