United States District Court, District of Columbia
P.-MEHTA UNITED STATES DISTRICT COURT JUDGE.
Second Amended Complaint, pro se Plaintiff Reuel Jacques
Abale Gnalega alleges that he suffered an injury as a result
of a nerve conduction test performed on his ankle in January
2014 by Dr. Michael H. Pfeiffer, an employee of the
Washington DC Veterans Affairs Medical Center
(“VA”). Sec. Am. Compl., ECF No. 31 [hereinafter
Sec. Am. Compl.], ¶¶ 5-8. Plaintiff asserts a claim
of negligence under the Federal Tort Claims Act premised on
two theories.First, he maintains that Dr. Pfeiffer
negligently performed the nerve conduction test that caused
his injury. See Id. ¶¶ 6-7, 16. Second, he
contends that the VA failed to disclose that Dr.
Pfeiffer's credentials and qualifications “had been
called into question at the VA.” See Id.
¶¶ 7-8. Plaintiff's Amended Complaint
emphasized the first theory of negligence, and the court
dismissed it as barred by the statute of limitations but
granted Plaintiff leave to amend. See Mem. Op. and
Order, ECF No. 29.
once more moves to dismiss Plaintiff's action as time
barred. See Def.'s Mot. to Dismiss, ECF No. 33
[hereinafter Def.' Mot.], at 2-4. Plaintiff counters that
Defendant fraudulently concealed Dr. Pfeiffer's lack of
credentials, thereby tolling the statute of limitations.
See Sec. Am. Compl. ¶ 9; see also
Pl.'s Opp'n to Def.'s Mot., ECF No. 35, at 5
(asserting that the “VA has incentive to cover up the
injury caused by [Dr. Pfeiffer] because [he] doesn't have
the proper credentials and the government knows this”).
Defendant offers no response to this argument. See
generally Def.'s Mot.; see also Def.'s
Reply, ECF No. 36.
should hesitate to dismiss a complaint on statute of
limitations grounds based solely on the face of the
complaint.” Firestone v. Firestone, 76 F.3d
1205, 1209 (D.C. Cir. 1996). “[B]ecause statute of
limitations issues often depend on contested questions of
fact, dismissal is appropriate only if the complaint on its
face is conclusively time-barred.” Id.
Plaintiff's allegation that the VA fraudulently concealed
Dr. Pfeiffer's qualifications and credentials, if true,
could toll the statute of limitations and make this case
timely, at least in part. See Id. (“A failure
to disclose by one who has a duty to do so-such as someone
standing in a fiduciary or confidential relationship-also can
establish fraudulent concealment.”). The negligence
claim insofar as it is premised on a failure-to-disclose
theory is thus not “conclusively time-barred.”
Plaintiff's alternative theory of negligence-that Dr.
Pfeiffer improperly performed the nerve conduction
test-arguably is time barred for the reasons stated in the
court's prior Memorandum Opinion and Order. See
Mem. Op. and Order, ECF No. 29. Plaintiff has not
alleged that the injury he suffered was somehow fraudulently
concealed. Nevertheless, because Plaintiff's two theories
of negligence are closely intertwined, the court will deny
the motion to dismiss in its entirety. The statute of
limitations defense remains available at the summary judgment
also seeks dismissal because Plaintiff improperly served the
District of Columbia Attorney General, and not the United
States Attorney for the District of Columbia, as required by
Federal Rule of Civil Procedure 4(i). See Def's
Mot. at 4-6. After Defendant filed its Motion, Plaintiff
submitted proof that he served the complaint by mail on
counsel of record for the United States. See ECF
Nos. 37 and 39. This service is deficient in two respects.
First, Plaintiff served counsel of record, not the United
States Attorney for the District of Columbia. See
Fed. R. Civ. P. 4(i)(1)(A)(i). And, second, even if such
service were adequate, Plaintiff himself mailed the process,
which he cannot do as a party to the case. See Fed.
R. Civ. P. 4(c)(2).
has indicated that it may be willing to waive perfected
service. See Def's Mot. at 6. Accordingly, by
June 27, 2019, Defendant shall notify the court whether it is
prepared to waive formal service of process. If not,
Plaintiff shall have until July 26, 2019, to complete proper
service under Rule 4(i).
 Plaintiff's Second Amended
Complaint listed the Washington Veterans Medical Center and
the United States of America as Defendants. The United States
of America is the only proper Defendant in this Federal Tort
Claims Act case. See Cureton v. U.S. Marshal
Service, 322 F.Supp.2d 23, 25 n.4 (D.D.C. 2004).
 The court construes the complaint
liberally because Plaintiff is proceeding pro se. See
Erickson v. Pardus, 551 ...