                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 26 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PATRICK D. POPPE,                                No.   15-17132

              Plaintiff-Appellant,               D.C. No. 2:14-cv-02103-KJD-PAL

 v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                            Submitted April 18, 2017**
                             San Francisco, California

Before: D.W. NELSON and IKUTA, Circuit Judges, and BURGESS,*** Chief
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Timothy M. Burgess, United States Chief District
Judge for the District of Alaska, sitting by designation.
      Patrick Poppe (“Poppe”) appeals the district court’s order dismissing his

claim for dental malpractice brought against the United States under the Federal

Tort Claims Act (“FTCA”) as time barred. We have jurisdiction under 28 U.S.C. §

1291, and we affirm. Because the parties are familiar with the facts, we do not

recount them here.

      The district court correctly dismissed Poppe’s FTCA action as time barred

by the FTCA’s six-month limitation period set forth at 28 U.S.C. § 2401(b). We

reject Poppe’s contention that the filing of his initial FTCA complaint,

subsequently dismissed without prejudice, excuses the untimely filing of his

second FTCA action. O’Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir.

2006) (“In instances where a complaint is timely filed and later dismissed, the

timely filing of the complaint does not ‘toll’ or suspend the . . . limitation period.

In such cases, the dismissal of the original suit, even though labeled as without

prejudice, nevertheless may sound the death knell for the plaintiff’s underlying

cause of action if the sheer passage of time precludes the prosecution of a new

action.” (citations and internal quotation marks omitted)).

      The district court also correctly held that the doctrine of equitable tolling

does not apply to save Poppe’s otherwise untimely claim. Although the district

court mistakenly characterized the statute of limitations at 28 U.S.C. § 2401(b) as

jurisdictional, it nonetheless applied the correct standard to determine whether the

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doctrine of equitable tolling might apply to Poppe’s FTCA claim. See Wong v.

Beebe, 732 F.3d 1030, 1047, 1052 (9th Cir. 2013) (en banc) (holding that “§

2401(b) is a nonjurisdictional claim-processing rule subject to the presumption of

equitable tolling” and that a plaintiff who seeks equitable tolling in an FTCA

action “bears the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstances stood

in his way” (quoting Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221,

227 (2012))), aff’d sub nom. United States v. Wong, 135 S. Ct. 162 (2015).

      Applying that standard, the district court correctly held that Poppe is not

entitled to equitable tolling of the FTCA’s six-month time limit. Poppe has not

identified any extraordinary circumstance that prevented him from timely filing his

FTCA complaint, and additional discovery on the issue would reveal none. See

Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 756 (2016) (“But

we have expressly characterized equitable tolling’s two components as ‘elements,’

not merely factors of indeterminate or commensurable weight. And we have

treated the two requirements as distinct elements in practice, too, rejecting requests

for equitable tolling where a litigant failed to satisfy one without addressing

whether he satisfied the other.” (citations omitted)).

      AFFIRMED.



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