         11-766-cv
         Dominguez v. United States

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of March, two thousand and twelve.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges.
 9                SIDNEY H. STEIN,*
10                         District Judge.
11
12
13       JEREMIAH DOMINGUEZ, an infant, by his
14       mother and natural guardian Cynthia
15       Dominguez, CYNTHIA DOMINGUEZ,
16       individually,
17
18                                     Plaintiffs-Appellants,
19
20                                     -v.-                                         11-766-cv
21
22       UNITED STATES OF AMERICA,
23
24                                     Defendant-Appellee.
25
26
27
28
29
30       FOR APPELLANTS:               LISA M. COMEAU (Michael B. Ronemus,

                *
              Judge Sidney H. Stein, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
 1                      Ronald Podolsky, on the brief), Ronemus &
 2                      Vilensky, LLP, New York, NY.
 3
 4   FOR APPELLEE:      CRISTINE IRVIN PHILLIPS, Assistant United
 5                      States Attorney (Neil M. Corwin,
 6                      Assistant United States Attorney, on the
 7                      brief), for Preet Bharara, United States
 8                      Attorney for the Southern District of New
 9                      York, New York, NY.
10
11        Appeal from the United States District Court for the
12   Southern District of New York (Cote, J.)
13
14       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15   AND DECREED that the judgment of the United States District

16   Court for the Southern District of New York be AFFIRMED.

17       Plaintiffs-Appellants appeal from a judgment of the

18   United States District Court for the Southern District of

19   New York (Cote, J.), dismissing their suit on the grounds

20   that it was untimely under the two-year statute of

21   limitations set forth in the Federal Tort Claims Act

22   (“FTCA”).   See 28 U.S.C. § 2401(b).   We assume the parties’

23   familiarity with the underlying facts and procedural

24   history.

25       Although the parties raised some question as to whether

26   the statute of limitations in the FTCA is jurisdictional, we

27   need not address the issue here because it does not affect

28   our decision.   Under the FTCA, “[t]he diligence-discovery

29   rule sets the accrual date at the time when, with reasonable


                                   2
1    diligence, the plaintiff has or . . . should have discovered

2    the critical facts of both his injury and its cause.”

3    A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 140

4    (2d Cir. 2011) (internal quotation marks and citations

5    omitted); Valdez ex rel. Donely v. United States, 518 F.3d

6    173, 177 (2d Cir. 2008).     In this case, the district court

7    held a hearing during which it heard testimony and argument.

8    The court found that Plaintiffs-Appellants were aware of the

9    critical facts of the injury and of the possibility of

10   iatrogenic harm shortly after Jeremiah Dominguez’s birth.

11       The court’s findings that Plaintiffs were aware of the

12   critical facts of the injury and of a possible iatrogenic

13   harm prior to February 12, 2007 were not clearly erroneous.

14   In addition, Plaintiffs forfeited any argument that

15   equitable tolling applies.     See Raniola v. Bratton, 243 F.3d

16   610, 613 n.1 (2d Cir. 2001); Hamilton v. Atlas Turner, Inc.,

17   197 F.3d 58, 61-62 (2d Cir. 1999).     We therefore affirm the

18   court’s dismissal of the complaint pursuant to the FTCA’s

19   statute of limitations.

20       Because we affirm the district court’s dismissal of

21   Appellants’ suit, their motion for summary reversal is

22   hereby DENIED.

23


                                     3
1

2       For the foregoing reasons, the judgment of the district

3   court is hereby AFFIRMED.
4
5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8
9




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