UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

KACIE KRAUSE and MARCUS ) 

HARVEY, individually and on behalf ) 

of K.H., a minor, ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) CAUSE NO.: 2:16-CV-209-TLS 

 ) 

UNITED STATES OF AMERICA, ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

 This matter comes before the Court on Defendant United States of America’s Motion to 

Dismiss or, alternatively, Summary Judgment [ECF No. 14], filed on December 13, 2016. 

Plaintiffs Kacie Krause and Marcus Harvey, individually and on behalf of K.H., a minor, filed a 

Complaint [ECF No. 1] on June 7, 2016. The Defendant moved to dismiss pursuant to Rule 

12(b)(6), asserting that the Complaint fails to state a claim upon which relief can be granted. 

Alternatively, the Defendant moved for summary judgment on all of the Plaintiffs’ claims. This 

matter is now ripe for the Court’s review. 

FACTUAL AND PROCEDURAL BACKGROUND 

 On June 28, 2010, Plaintiff Krause was admitted to “St. Catherine Hospital, in East 

Chicago, Indiana . . . for the birth of her child, K.H.” (Compl. ¶ 1, ECF No. 1.) Plaintiff Harvey 

was the biological father of K.H. (Id. ¶ 10.) At the Hospital, Dr. Keith M. Ramsey “car[ed] for 

and treat[ed] Krause during the labor and delivery of . . . K.H.,” whom Plaintiff Krause “had 

never met with or been treated by before.” (Id. ¶¶ 3, 8.) Ramsey was allegedly an employee at 

“NorthShore Health Centers, Inc., . . . a federally supported health facility,” and Plaintiff Krause 
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“had never received medical treatment at . . . [or] been a patient of NorthShore Healthcare 

Centers, Inc.” (Id. ¶¶ 5–6.) Ramsey’s delivery of K.H. allegedly resulted in numerous 

complications and injuries. (See id. ¶ 8a–8e.) 

 On September 9, 2011, the Plaintiffs “filed a Proposed Complaint with the Indiana 

Department of Insurance . . . against Ramsey alleging negligent medical care.” (Id. ¶ 11.) During 

that lawsuit, Cause No. 45D01-1208-CT-178,1

 Ramsey allegedly “concealed and/or otherwise 

failed to disclose . . . that he was an employee and/or agent of a federally supported health 

facility and subject to the Federal Tort Claims Act until June 17, 2013.” (Id. ¶ 13.) “On March 5, 

2015, the Lake County Superior Court . . . found that Ramsey was an employee of a federally 

funded healthcare facility.” (Id. ¶ 14.) 

Then, on April 3, 2015, the Plaintiffs submitted an administrative claim to the HHS 

regarding the events of June 28, 2010. (HHS Compl. 1–6, ECF No. 1-1.) On August 19, 2015, 

the HHS denied the Plaintiffs’ administrative claim and its “denial letter was delivered on 

August 24, 2015.” (Recio Decl. ¶¶ 4–6, ECF No. 15-4.) The Plaintiffs filed this Complaint on 

June 7, 2016, which the Defendant moved to dismiss on December 13, 2016. On February 9, 

2017, the Plaintiffs filed a Notice [ECF No. 18] that they would not respond to or seek a hearing 

on the Defendant’s Motion. 

 1

 In its Motion, the Defendant offered evidence that this state court case was removed to federal 

court on September 25, 2013, under Cause No. 2:13-CV-345-PPS. (Mot. Dismiss 2, ECF No. 15.) Once 

in federal court, the Defendant moved to dismiss “due to Plaintiffs’ failure to exhaust administrative 

remedies” because they had “never filed an administrative tort claim with the Department of Health and 

Human Services (HHS), prior to initiating their” state court case. (Id. (citing Torres Decl. ¶¶ 4–5, ECF 

No. 15-5.) The Defendant was subsequently dismissed without prejudice from that case, with the “case 

against the remaining defendants . . . remanded back” to state court. (Id. at 3.) 
3 

STANDARD OF REVIEW 

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the 

sufficiency of the complaint and not the merits of the suit. Gibson v. City of Chi., 910 F.2d 1510, 

1520 (7th Cir. 1990). The court presumes all well-pleaded allegations to be true, views them in 

the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn 

from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 

1995). 

 The Supreme Court has articulated the following standard regarding factual allegations 

that are required to survive dismissal: 

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 

detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his 

“entitlement to relief” requires more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do. Factual allegations must 

be enough to raise a right to relief above the speculative level, on the assumption 

that all the allegations in the complaint are true (even if doubtful in fact). 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, ellipsis, citations, and 

footnote omitted). A complaint must contain sufficient factual matter to “state a claim that is 

plausible on its face.” Id. at 570. “A claim has facial plausibility when the pleaded factual 

content allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 

556). Although the court must accept as true all well-pleaded facts and draw all permissible 

inferences in the plaintiff’s favor, it need not accept as true “[t]hreadbare recitals of the elements 

of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly at 

555). Legal conclusions can provide a complaint’s framework, but unless well-pleaded factual 

allegations move the claims from conceivable to plausible, they are insufficient to state a claim. 
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Id. at 680. Determining whether a complaint states a plausible claim for relief requires a 

reviewing court to “draw on its judicial experience and common sense.” Id. at 679. 

Plaintiffs can also plead themselves out of court if the allegations clearly establish all the 

elements of an affirmative defense, including the defense that the action was filed after the 

statute of limitations period expired. Chi. Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 

610, 613–14 (7th Cir. 2014); see also Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir. 2011) 

(“[W]hen the allegations of the complaint reveal that relief is barred by the applicable statute of 

limitations, the complaint is subject to dismissal for failure to state a claim.”); United States v. 

Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (citing exception to the rule that complaints do not have 

to anticipate affirmative defenses to survive a motion to dismiss where “the allegations of the 

complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a 

complaint plainly reveals that an action is untimely under the governing statute of limitations”); 

Tregenza v. Great Am. Comm’ns Co., 12 F.3d 717, 718 (7th Cir. 1993) (noting that even though 

a plaintiff is not required to negate a statute of limitations affirmative defense in his complaint, 

“if he pleads facts that show that his suit is time-barred or otherwise without merit, he has 

pleaded himself out of court”). 

Rule 12(b) requires that a court treat a motion to dismiss as one for summary judgment 

under Rule 56 when “matters outside the pleadings are presented to and not excluded by the 

court.” Fed. R. Civ. P. 12(b). Despite the language of Rule 12(b), a court has the option to 

convert the motion to one for summary judgment and consider the documents, or to ignore the 

documents and confine its analysis to the motion to dismiss. Id. 12(d); Tierney v. Vahle, 304 F.3d 

734, 738 (7th Cir. 2002); Venture Ass’n Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th 

Cir. 1993). Finally, a court may also take judicial notice of matters of public record without 
5 

converting a Rule 12(b)(6) motion into a motion for summary judgment. Henson v. CSC Credit 

Servs., 29 F.3d 280, 284 (7th Cir. 1994) (citing United States v. Wood, 925 F.2d 1580, 1582 (7th 

Cir. 1991)); see also Ennega v. Starns, 677 F.3d 766, 773–74 (7th Cir. 2012) (noting that the 

affirmative defense of the statute of limitations may sometimes “be resolved at the motion-todismiss stage based on the allegations in the complaint and a few undisputable facts within [a 

court’s] judicial-notice power”).

ANALYSIS 

 This Court has jurisdiction over the Complaint pursuant to the Federal Tort Claims Act 

(FTCA), 28 U.S.C. § 2674. The Defendant moves to dismiss the Complaint for failure to state a 

claim on the grounds that the Plaintiffs’ administrative claim with the HHS was untimely or, 

alternatively, that the Plaintiffs’ lawsuit was untimely. The Plaintiffs filed a Notice that they did 

“not intend to file a Response” to the Defendant’s Motion. (Notice 1, ECF No. 18.) 

 “Generally, an individual may not sue the United States for tortious conduct committed 

by the government or its agents.” Williams v. Fleming, 597 F.3d 820, 822 (7th Cir. 2010) (citing 

United States v. Navajo Nation, 556 U.S. 287, 289 (2009) (“The Federal Government cannot be 

sued without its consent.”). However, Congress created an exception through § 2674 of the 

FTCA, whereby a suit is permitted against the United States 

for injury or loss of property, or personal injury or death caused by the negligent or 

wrongful act or omission of any employee of the Government while acting within 

the scope of his office or employment, under circumstances where the United 

States, if a private person, would be liable to the claimant in accordance with the 

law of the place where the act or omission occurred. 

28 U.S.C. § 1346(b)(1). 

 Critically, plaintiffs may not bring an FTCA claim unless they first presented their claim 

to the appropriate federal agency and the agency denied the claim. See 28 U.S.C. § 2675(a); 

McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing 
6 

suits in federal court until they have exhausted their administrative remedies.”); Smoke Shop, 

LLC v. United States, 761 F.3d 779, 786 (7th Cir. 2014) (“[T]he FTCA bars would-be tort 

plaintiffs from bringing suit against the government unless the claimant has previously submitted 

a claim for damages to the offending agency, because Congress wants agencies to have an 

opportunity to settle disputes before defending against litigation in court.”) (citation omitted). 

The claim must be presented in writing to the appropriate Federal agency within two years after 

the claim accrues, and the plaintiff must then file suit within six months of the agency’s denial of 

the claim. 28 U.S.C. § 2401(b).2 The United States Supreme Court has held that because the 

FTCA represents a waiver of sovereign immunity, its provisions must be strictly construed. See 

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990); see also Palay v. United States, 349 

F.3d 418, 425 (7th Cir. 2003) (“A plaintiff’s failure to exhaust administrative remedies before he 

brings suit mandates dismissal of the claim.”) (citing McNeil, 508 U.S. at 113). 

 The Defendant contends that the Plaintiffs “did not submit a claim to the Department of 

Health and Human Services until April 3, 2015,” which was “almost five years after the accrual 

of the claim.” (Mot. Dismiss 7.) Alternatively, the Defendant notes that the HHS denied the 

Plaintiffs’ administrative claim on August 19, 2015, that “the denial letter was delivered to 

counsel on August 24, 2015,” and that “the Plaintiffs did not file this lawsuit until June 7, 2016,” 

outside of the six-month limitations window (Id. at 8.) The Court agrees with the Defendant. 

Even assuming that the Plaintiffs’ administrative complaint to the HHS was timely when filed in 

April 2015, the present lawsuit was filed more than six months “after the date of mailing, by 

certified or registered mail, of notice of final denial of the claim by the agency to which it was 

presented.” 28 U.S.C. § 2401(b). Accordingly, this lawsuit is time-barred. 

 

 2 The Court notes that the Seventh Circuit does not treat compliance with the FTCA’s exhaustion 

requirement as a jurisdictional prerequisite, but instead as a “condition precedent to the plaintiff’s ability 

to prevail.” Smoke Shop, 761 F.3d at 786–87 (internal quotation marks and citation omitted). 
7 

CONCLUSION

 For the reasons stated above, Defendant United States of America’s Motion to Dismiss 

[ECF No. 14] is GRANTED, and the alternative Motion for Summary Judgment is DENIED AS 

MOOT. The Complaint [ECF No. 1] is DISMISSED WITH PREJUDICE. 

 SO ORDERED on March 21, 2017. 

 s/ Theresa L. Springmann 

 CHIEF JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT