United States District Court, W.D. Wisconsin
OPINION & ORDER
WILLIAM M. CONLEY District Judge
se plaintiff Diane Mary Feltz brought a wrongful death
claim against the United States under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 2679, which this
court initially dismissed as barred by Wisconsin's
three-year statute of limitations for medical malpractice and
wrongful death claims. (Dkt. #9 (citing Wis.Stat.
§§ 893.54(2), 893.55(1m).) Feltz then moved for
reconsideration, arguing that her claim was not time-barred
because she had been following the procedures under the FTCA
for administrative exhaustion and had filed her claim within
the deadlines set forth in the FTCA itself. (See
dkt. #13.) The court agreed and reopened the case, finding
that Feltz had at least made a colorable argument. (Dkt.
is the United States' subsequent, formal motion to
dismiss the case, arguing that because Wisconsin law treats
statutes of limitations as “substantive” law,
unlike the majority of jurisdictions, the Wisconsin statute
of limitations is incorporated into the FTCA and is not
preempted by the FTCA's own procedural rules.
(See dkt. #25.) After reviewing the parties'
arguments and the relevant case law, the court concludes that
this case must be dismissed as time-barred by the applicable
statute of limitations. Accordingly, the court will grant the
United States' motion and dismiss this case with
argument is that her claim should be governed by the FTCA
notice of claim provision and statute of limitations,
provisions with which she indisputably complied, rather than
the three-year statute of limitations in Wis.Stat.
§§ 893.54 and 893.55. The relevant FTCA provisions
[a] tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues or
unless action is begun within 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). In support, plaintiff cites
Fisk v. United States, 657 F.2d 167, 170 (7th Cir.
1981), in which the court stated, “[t]o avoid anomalous
results as the result of geographic fortuity, . . . the
federal statute of limitations, set forth at 28 U.S.C. §
2401(b) (1976), controls whether. . . a claim [arising under
the Federal Tort Claims Act] is time barred.” See
also Quinton v. United States, 304 F.2d 234, 239-40 (5th
Cir. 1962) (“[W]e look to . . . federal law to
determine whether the [FTCA] action is stale” and
“federal law then controls as to whether the plaintiff
has timely instituted his suit to recover on that cause of
support of a contrary conclusion, the government relies on
two cases, Augutis v. United States, 732 F.3d 749
(7th Cir. 2013), and Wenke v. Gehl Co., 2004 WI 103,
274 Wis.2d 220, 682 N.W.2d 405. In Augutis, 732 F.3d
at 752, the court reaffirmed the general principle that
“the FTCA incorporates the substantive law of the state
where the tortious act or omission occurred.” Applying
that principle, the court held that an Illinois statute of
repose barred a plaintiff's claim because “Illinois
courts have consistently construed the four-year [statute of
repose] as a substantive limit on liability, not a
procedural bar to suit.” Id. (emphasis added).
That court also expressly rejected the argument that §
2401(b) preempted the Illinois rule: “The FTCA does not
expressly preempt state statutes of repose, nor does it
impliedly preempt state substantive law; to the contrary, it
expressly incorporates it.” Id. at 754.
Wenke, 2004 WI 103, the court also held that
Wisconsin statutes of limitations are substantive,
rather than procedural.
[I]n most states, a statute of limitation merely extinguishes
the plaintiff's remedy. This, however, was not and is not
the law in Wisconsin. In Wisconsin, we adopted the minority
proposition that the limitation of actions is a right as well
as a remedy, extinguishing the right on one side and creating
a right on the other. . . .Under Wisconsin law, statutes of
limitation [are viewed as] substantive statutes because they
create and destroy rights.
Id. at ¶ 55 (citations and internal quotations
Augutis and Wenke together, the government
argues that plaintiff's claim is barred because
§§ 893.54 and 893.55 are substantive laws and the
Federal Tort Claims Act does not preempt substantive state
laws. The court reluctantly agrees. Admittedly, this result
seems somewhat unfair -- given that a plaintiff seeking to
bring an FTCA claim in Wisconsin would understandably review
the procedural notice of claim and limitations provisions of
the FTCA and assume that compliance with those provisions
would protect her claim. However, there appears no obvious
way to distinguish the Seventh Circuit's Augutis
decision from this case. Moreover, Fisk is not
controlling because the court in that case was not
considering a statute of limitations that had been construed
as substantive by the state supreme court. Because
Wisconsin's substantive statute of limitations applies,
and plaintiff brought this action after the limitations
period had expired, her claim is, therefore, time-barred.
Accordingly, it must be dismissed.
ORDERED that the United States' motion to dismiss (dkt.
#25) is GRANTED. This case is DISMISSED WITH PREJUDICE as
time-barred under state applicable statute of limitations.
The clerk of court ...