NOT RECOMMENDED FOR PUBLICATION File Name: 21a0311n.06
Case No. 20

- 6407
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

D.B., a minor, by and through his next of friend and mother , ANTOINETTE LUNDY , Plaintiff

- Appellee ,

v.
SHELBY COUNTY HEALTH CARE CORPORATION; UNITED STATES OF AMERICA, Defendants

- Appellants

. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

OPINION

BEFORE: GILMAN , M c KEAG U E, and BUSH , Circuit Judges.
JOHN K. BUSH , Circuit Judge. In August 2017, Antoinette Lundy filed a lawsuit on behalf of her infant child, D.B., asserting medical tort claims against several defendants. Unfortunately for Lundy and D.B., the applicable statute of limitations had expired the year before.
The distr ict court granted summary judgment in favor of the defendants on that basis, finding no

reason to toll the limitations period. We affirm.
I. On May 2, 2014, Antoinette Lundy gave birth to D.B. at the Regional One Medical Center in Memphis , Tennessee. D uring labor, D.B.’s oxygen and blood flow were restricted and , as a result, he sustained serious brain damage. Believing that the doctors were responsible for her son’sCase No. 20

- 1483 , D.B. v. Shelby C nty. Healthcare Corp.

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- injuries, Lundy sought advice from a law firm in December 2014

. 1 After review ing the facts and law, the firm advised Lundy that she had no case because it was too early to determine the extent of D.B.’s injuries. The firm closed its file on D.B.’s case in April 2015. In September 2016, Lundy retained new counsel.
Seven months later , on April 28, 2017, Lundy ’s new counsel sent letters to entities and
individuals she planned to sue for D.B.’s injuries , including the Medical Center , 2 Lundy’s prenatal care facility Christ Community Health Services, and one of CCHS’s employees, Dr. Will iam G. Mullinax, who helped deliver D.B. Shortly thereafter, the United States Department of Health and Human Services sent Lundy’s new counsel a letter noting that CCHS and its covered employees were deemed employees of the federal government for purpos es of tort coverage under the Federal Torts Claims
Act. The letter also notified counsel that the exclusive remedy against CCHS and its employees was an action pursuant to the FTCA , and that all administrative remedies would need to be
exhausted before su ch an action could be filed. Undeterred, Lundy filed suit in state court on August 22, 2017, alleging state causes of action for negligence. Sh e also filed an administrative complaint on October 13, 2017. On November 3, 2017, CCHS removed the state cas e to federal district court. And on December 6, 2017, the United States moved to substitute itself as a defendant in place of CCHS and Dr.
Mullinax. The district court granted the motion. It also granted the Government’s later

- filed
motion to dismiss be cause Lundy had not exhausted her administrati ve remedies.

1 Although D.B. is the named party, for clarity, and because this appeal is brought by and through D.B.’s mother, Lundy, we refer to P laintiff

- A ppellant as Lundy throughout.
2 The M edical C enter is formally named the Shelby County Health Care Corporation.Case No. 20

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- Five months later, Lundy filed an amended complaint substituting the United States as a defendant in place of CCHS and Dr. Mullinax. The Government quickly moved for summary judgment, arguing that Lundy’s tort claim was barred by the FTCA’s two

- year statute of
limitations. The district court agreed and found that there was no reason to toll the limitations period. Lundy appeals.
II. We review a district court’s grant of summary judgment de novo. Jackson v. City of
Cleveland , 925 F.3d 793, 806 (6th Cir. 2019). Summary judgment is appropriate when there is “no genuine dispute as to any material fact , ” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he evidence is construed and a ll reasonable inferences are drawn in favor of the nonmoving party.” Burgess v. Fischer , 735 F.3d 462, 471 (6th Cir. 2013) (citing Hawkins v. Anheuser

- Busch, Inc. , 517 F.3d 321, 332 (6th Cir. 2008)).
III. There is no dispute that Lundy filed this action a fter the FTCA’s applicable two

- year statute of limitations period. So the only issue on appeal is whether the district court erred in choosing not to toll that limitations period. Equitable tolling allows a court to extend a statute of limitations period when a litigant’s failure to file suit within that period was unavoidable. Jackson v. United States , 751 F.3d 712, 718 (6th Cir. 2014). In cases where the government is involved, we apply the doctrine “sparingly , . . . not when there has only been a garden variety claim of excusable neglect.” Id. (quoting Chomic
v. United States, 377 F.3d 607, 615 (6th Cir. 2004)). The party asserting its application carries the burden of establishing its relevance in any given case. Id. at 718

– 19. And for purposes of determining whether equitable tolling applies, the action or inaction of an attorney is attributableCase No. 20

- 1483 , D.B. v. Shelby C nty. Healthcare Corp.

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- to his or her client. Mason v. Dep’t of Just. , 39 F. App’x 205, 207 (6th Cir. 2002). Finally, because
the facts are u ndisputed, we review the district court’s equitable

- tolling decision de novo, rather than simply for an abuse of discretion. See Zappone v. United States , 870 F.3d 551, 55 5 (6th Cir. 2017). Normally, we consider five factors when evaluating whether equitable tolling is appropriate

. See Jackson , 751 F.3d at 719. Those factors include “(1) the plaintiff ’ s lack of notice of the filing requirement; (2) the plaintiff’s lack of constructive knowledge of the filing requirement; (3) the plaintiff’s diligen ce in pursuing her rights; (4) an absence of prejudice to the defendant; and (5) the plaintiff’s reasonableness in remaining ignorant of the particular legal requirement.” Id. Though w e have lately recognized a few “limitations” to that elemental
approac h, we nonetheless continue to apply it in FTCA suits. See Zappone , 870 F.3d at 556

– 57

. The parties focus on all but factor one. In our view, factors two, three, and five overlap substantially and decide this case. 3
A. F ACTOR T WO : C ONSTRUCTIVE K NOWLEDGE Constructive knowledge is commonly understood to be “information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such a s to cast upon him the duty of inquiring into it.” Kirby v. Macon County , 892 S.W.2d 403, 409 (Tenn. 1994) (quoting Black’s Law Dictionary 1062 (6th Ed. 1990)). Since 2014

— the year of D.B.’s birth and related injuries

— CCHS has posted to its website clear notices of its (and its employees) federal ly

- designated status

. For example, in 2014, under the website ’ s “Patient Info” section, there was a webpage titled “FTC

3 Because none of those factors support equitabl e tolling, we need not evaluate factor f our, preju dice to the government

. See Kellum v. Comm’r of Soc. Sec. , 295 F. App’x 47, 49

– 50 (6th Cir. 2008) ( noting that factor four is immaterial absent other factors supporting equitable tolling)

.Case No. 20

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- Deeming Notice” clarifying that CCHS “receives HHS funding and has federal Publi c Health
Ser vice deemed status with respect to certain health or health

- related claims, including medical malpractice claims, for itself and its covered individuals.” That language provided Lundy with constructive knowledge of CCHS ’s and Dr. Mullinax’s federal status and her likely need to comport with the FTCA’s limitations period. See Bazzo v. United States , 494 F. App’x 545, 548 (6th Cir. 2012) (declining to equitably toll the statute of limitations on plaintiff’s FTCA claim, noting that “counsel’s review of the medical center’s website could have alerted him to the center’s ‘[f]ederally

- designated’ status” ). According to Lundy , for that language to establish constructive knowledge, it would have
had to appear in a more prominent part of the website , like the “About U s” page. She points to a
screenshot of CCHS’s “About U s” page taken in mid

- April 2014 , a m onth before D.B.’s birth, showing that no FTCA notices were present. But screenshots of the “About U s” page taken closer to the time of D.B.’s birth, and shortly thereafter

— during the timeframe Lundy and her attorneys would have presumably been investigat ing CCHS’s status in order to file suit

— contain language stating that CCHS is “an FTCA deemed facility,” that it “has medical malpractice liability protection through the . . . FTCA,” and that under the Act, it is considered to be a “[f]ederal employee.” So even if Lundy were correct that some notice had to be placed on a more prominent page, like the “About U s” page, CCHS did so during the relevant period

. T o the extent Lundy contends that knowing CCHS’s federal status was not enough to
establish knowle dge of Dr. Mullinax’s status, she is mistaken. The publicly available address for Dr. Mullinax’s place of work was a CCHS location in Tennessee. Lundy’s counsel even sent a
pre - suit notice letter to Dr. Mullinax at that address. Th e address should have tipped Lundy offCase No. 20

- 1483 , D.B. v. Shelby C nty. Healthcare Corp.

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- that Dr. Mullinax was an employee of CCHS and , according to CCHS’s website, a “covered
individual [] ” under the FTCA.
B. F ACTOR T HREE : D ILIGENCE To diligently investigate a claim, a plaintiff must inquire into not only wh ether the claim exists, but also who might be liab le , and what, if any, restrictions apply to the claim’s timeliness.
See A.Q.C. ex rel. Castillo v. United States , 656 F.3d 135, 145 (2d Cir. 2011)

. Lundy ’s assert ion that she diligent ly investigated her s on’s claim s and the defendants’ potential liability comes up short

. Other than hiring a law firm to review the case, she provides no specific information about what she did before the FTCA’s limitations period expired that would excuse her failure to comp ly with the statute. And a ll we know about th at first law firm ’s investigation is that it reviewed some medical records , and then advised Lundy that no action could
be taken because it was not yet clear that her son’s brain damage was sufficiently extensive. 4
In Bazzo , we denied a plaintiff’s claim for equitable tolling of the FTCA’s limitations period because he failed to “detail what steps counsel took to determine [the defendant’s] employment status , ” which related to the defendant ’s potential liability. 494 F. App’x at 548. The same failure is present in this case, and so the same outcome is warranted. See Chomic , 377 F.3d

at 616 (6th Cir. 2004) (noting that a lack of due diligence can defeat a claim for equitable tolling).
Wha t’s more, as in Bazzo , Lundy’s “counsel’s review of the medical center’s website could have
alerted him to the center ’ s federally

- designated status” and therefore to the center and its employees’ coverage under the FTCA. 494 F. App’x at 548 (internal quot ation marks omitted).

4 Lundy does mention briefly that she experienced mental and physic al challenges as a young mother taking care of a newborn with special needs, that she suffered an injury due to a car accident, and that she had to move from Tennessee to Florida so she could be closer to family. But she does not argue that any of those circumstances prevented her from diligently pursuing her claim; she argues that despite all of those challenges, she was able to pursue her claim diligently.Case No. 20

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- That neither Lundy nor her earlier counsel discovered the notice of federal designation publicly advertised on CCHS’s website evinces a lack of diligence. See Zappone , 870 F.3d at 558 ; A.Q.C.
ex rel. Castillo , 656 F.3d at 144

– 46 (holding that although plaintiff timely consulted counsel, counsel’s lack of due diligence precluded equitable tolling of the FTCA’s limitations period). 5 Lundy submit s that after her first counsel closed her case, she acquired new counsel who
did diligen tly pursue her claim. Specifically, her new counsel attempted and failed to access the federal government’s FTCA search tool to determine CCHS’s status because the website was
down

. Her new counsel also attempted and failed to uncover medical records tha t might identify CCHS or Dr. Mullinax as federally deemed employees for purposes of tort coverage. But all of that alleged due diligence took place in 2017 and 2018, well after the FTCA’s two

- year limitations period had expired (in May of 2016) , and there fore cannot serve as a predicate to toll the running
of the FTCA’s two

- year statute of limitations

. T here is simply no evidence in the record establishing Lundy ’s or her first law firm’s due diligence before the FTCA’s limitations period expired. That lack of information is detrimental to Lundy’s claim. See Blanche v. United States , 811 F.3d 953, 962 (7th Cir. 2016) (denying claim for equitable tolling where there was no evidence
that c ounsel , for example, attempted to look up organization in FTCA search

- tool database). 6

5 Lundy or counsel could have also asked CCHS directly ab out its status, or they could have presumably looked up CCHS in the United States Health Resources & Service Administration’s “Federal Tort Claims Act Search Tool.” See U.S. Dep’t of Health & Human Servs., FTCA Search Tool , https://data hrsa.gov/tools/ftc a - search

- tool (last visited June 18, 2021)

. True, the database does not identify specific doctors, like Dr. Mullinax. But the publicly available address for Dr. Mullinax’s place of work

— a CCHS location in Tennessee

— should have tipped them off to the fact that Dr. Mullinax was an employee of CCHS and covered by the database ’ s federal designation of CCHS.
6 To the extent post

- limitations

- period conduct is relevant to our inquiry, before Lundy’s new counsel discovered that the FTCA ’s database website was d own , the United States Department of Health Resources & Service Administration notified counsel, in response to Lundy’s pre - suit notices, that CCHS and its employees were potentially covered under the FTCA and that the exclusive remedy for Lundy’s claim wo uld need to be made in accordance with the Act.Case No. 20

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- C. F ACTOR F IVE : R EASONABLENESS Finally , Lundy argues that it was reasonable for her not to examine CCHS’s website or otherwise inquire too deeply into its status. A ccor ding to Lundy, CCHS purports to be a religious organization; it s website is replete with b iblical references and expressly Christian language. And Lundy relates that , a s a child, she was taught about the metaphoric wall of separation between church and state. Thus, she believe s it was reasonable to assume that, as a religious organization , CCHS could not be deemed a federal entity under the FTCA

. We disagree. Lundy’s assumption was unreasonable , e specially considering that a review of the health center’s website

—

just past the biblical references

— would have notified her that CCHS and its employees are federal employees for purposes of defending against medical tort claims. And

counse l should know better than to adopt Lundy’s assumption about CCHS’s status

. The concept that the federal government is prohibited from affiliating with or aiding a religious institution “has consistently been rejected” by the Supreme Court. Hunt v. McNair , 413 U.S. 734, 742 (1973). “Interaction between church and state is inev itable . . . and we have always tolerated some level of involvement between the two.” Agostini v. Felton , 521 U.S. 203, 233 (1997) (citation omitted).
IV. In the end, Lundy fails to show that her inability to comply with the FTCA’s two

- year statute of limitations was due to unavoidable circumstances beyond her control. So we affirm.