Dagnesses v. United State of America

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-CV-23940-RAR
MONIQUE DAGNESSES,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
_______________________________________/
ORDER GRANTING MOTION TO DISMISS
THIS CAUSE comes before the Court on Defendant’s Motion to Dismiss (“Motion”),
[ECF No. 13], filed on December 1, 2025. Plaintiff filed a Response, [ECF No. 14], on December
15, 2025, and Defendant filed a Reply, [ECF No. 15], on December 17, 2025. The Court having
carefully considered the relevant submissions and applicable law, it is hereby
ORDERED AND ADJUDGED that the Motion is GRANTED as set forth herein.
BACKGROUND
Plaintiff Monique Dagnesses brings this action against Defendant United States of
America, seeking damages under the Federal Tort Claims Act (“FTCA”), after sustaining injuries
on a United States Air Force base. On April 2, 2023, Plaintiff attended the Wings Over Homestead
Air Show, which included a walkthrough of a C-5 Galaxy Aircraft. Compl., [ECF No. 1] ¶¶ 7–8.
The C-5 Galaxy Aircraft was equipped with entrance and exit ramps to allow attendees to tour the
aircraft. 	Id. ¶ 9. 	Plaintiff alleges that the grooves in the exit ramp were “not clearly marked,
cordoned off, or accompanied by any signage warning of tripping or entrapment hazards.” 	Id.
¶ 10. While walking on the exit ramp, Plaintiff’s right foot became stuck in a groove, resulting in
a fall. 	Id. ¶ 11. 	Plaintiff collapsed on the ramp and was assisted by Miami-Dade Fire Rescue,
Case 1:25-cv-23940-RAR Document 23 Entered on FLSD Docket 02/23/2026 Page 1 of 7

Page 2 of 7
Miami-Dade Police, and the United States Airforce. Id. ¶ 12. Plaintiff’s ankle was stabilized with
a splint, before she was transported to Baptist Homestead Hospital. Id.
While at Baptist Homestead Hospital, Plaintiff received various exams and scans which
revealed “complex and severe fractures to Plaintiff’s right ankle.” Id. ¶ 13. As a result, Plaintiff
had emergency surgery that required inserting “two long screws” into Plaintiff’s tibia, putting “a
metal plate and eight screws” into Plaintiff’s fibula, and placing “two metal bands” to “substitute
[Plaintiff’s] ruptured tendons.” Id. ¶ 14. Following the surgery, Plaintiff received post-surgical
care from Southernmost Foot and Ankle, as well as follow up neurological support for her
“endured and ongoing chronic pain, limited mobility, dependence on medications and significant
impairment in daily function.” Id. ¶ 15.
On September 2, 2025, Plaintiff initiated this lawsuit, bringing claims against the United
States for negligence (Count I), premises liability (Count II), negligent failure to warn (Count III),
and negligent mode of operation (Count IV). 	Id. ¶ 19–39. 	Plaintiff seeks $5,114,298.46 in
damages. Id. ¶ 40. Defendant moves to dismiss the Complaint on the grounds that (1) Plaintiff
failed to exhaust her administrative remedies before filing the Complaint, and (2) the Complaint
is a shotgun pleading. See generally Mot. Plaintiff, however, contends that she “timely submitted
an administrative claim, including a Standard Form 95, to the appropriate agency with a sum
certain demand,” Compl ¶ 6, and argues that the Complaint does not constitute a shotgun pleading,
Response at 8–9.
LEGAL STANDARD
Defendant’s Motion does not invoke a specific Federal Rule of Civil Procedure. 	See
generally Mot. 	But the United States Supreme Court has made clear that time bars under the
FTCA “are nonjurisdictional and subject to equitable tolling.” United States v. Wong, 575 U.S.
402, 420 (2015). Accordingly, the Eleventh Circuit has treated motions to dismiss based on the
Case 1:25-cv-23940-RAR Document 23 Entered on FLSD Docket 02/23/2026 Page 2 of 7

Page 3 of 7
time bars included in 28 U.S.C. § 2401(b) as motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6), not 12(b)(1). Harris v. United States, 627 F. App’x 877, 879–80 (11th Cir.
2015); see also United States ex rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811–12 (11th Cir.
2015) (reviewing motion to dismiss under Rule 12(b)(6) because defense was nonjurisdictional,
even though district court had considered the motion to dismiss as raising a subject matter
jurisdiction defense under Rule 12(b)(1)). 	As such, the Court treats Defendant’s Motion as a
motion to dismiss under Rule 12(b)(6). See, e.g., Harrison v. United States, No. 8:24-cv-01610,
2025 WL 418008, at *2 (M.D. Fla. Feb. 6, 2025) (deciding defendant’s motion under Rule 12(b)(6)
because the FTCA’s limitations period under § 2401(b) is nonjurisdictional (citing Wong, 572 U.S.
at 420; Harris, 627 F. App’x at 878–79)); Green v. Kendall, No. 1:23-cv-03024, 2024 WL
6874234, at *3–4 (N.D. Ga. July 2, 2024) (dismissing complaint under Rule 12(b)(6) due to
plaintiff’s failure to sufficiently allege that he presented his FTCA claim to the United States Air
Force before commencing the lawsuit); Chaverra v. United States, No. 4:19-cv-81, 2020 WL
5579554, at *1 (M.D. Ga. Sept. 17, 2020) (same).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). 	When reviewing a motion to dismiss pursuant to Rule
12(b)(6), a court must accept as true all factual allegations contained in the complaint, and the
plaintiff receives the benefit of all favorable inferences that can be drawn from the facts
alleged. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Iqbal, 556 U.S.
at 678. A dismissal for failure to state a claim under Rule 12(b)(6) is a “judgment on the merits”
and is “presumed to operate as a dismissal with prejudice unless the district court specifies
Case 1:25-cv-23940-RAR Document 23 Entered on FLSD Docket 02/23/2026 Page 3 of 7

Page 4 of 7
otherwise.” Eiber Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., 673 F. App’x 925, 929 (11th
Cir. 2016) (citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001)).
ANALYSIS
The doctrine of sovereign immunity “bars suit against the United States except to the extent
that it consents to be sued.” Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999). The
FTCA “‘is a specific, congressional exception’ to the United States’ sovereign immunity for tort
claims, under which the government may ‘be sued by certain parties under certain circumstances
for particular tortious acts committed by employees of the government.’” Turner ex rel. Turner v.
United States, 514 F.3d 1194, 1200 (11th Cir. 2008) (quoting Suarez v. United States, 22 F.3d
1064, 1065 (11th Cir. 1994)). But a claimant seeking to sue the United States under the FTCA
must abide by certain procedural requirements. Namely, the tort claim must be (1) presented to
the appropriate Federal agency within two years after the claim accrues; and (2) an action must be
filed within six months after the agency has mailed notice of final denial of the claim. Harris, 627
F. App’x at 878 (citing 28 U.S.C. § 2401(b)). 	A tort claim that fails to meet these timeliness
requirements under the FTCA is “forever barred.” 28 U.S.C. § 2401(b).
Plaintiff avers that she “timely submitted an administrative claim, including a Standard
Form 95, to the appropriate agency with a sum certain demand.” 	Compl. ¶ 6. 	However, the
Complaint is devoid of any allegations supporting this conclusion. 	See generally id. 	Plaintiff
further contends that Ҥ 2401(b) establishes two independent avenues for a claimant to satisfy the
FTCA’s timing requirements: namely a tort claim is timely if done within two years of accrual, or
if the claimant files suit within six months after the agency’s final denial.” 	Response at 5.
Therefore, Plaintiff argues that since she filed suit within six months of the agency’s final denial,
her claim was timely. Response at 6–7.
Case 1:25-cv-23940-RAR Document 23 Entered on FLSD Docket 02/23/2026 Page 4 of 7

Page 5 of 7
But Plaintiff’s interpretation of § 2401(b) is squarely foreclosed by Eleventh Circuit
precedent. See Ramos v. U.S. Dep’t of Health & Hum. Servs., 429 F. App’x 947, 950 (11th Cir.
2011) (“Under the FTCA, [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. . . . Additionally, to be timely, the lawsuit must be filed within six months of receipt of
the agency’s final decision.” (emphasis added) (citations and internal quotation marks omitted));
Harris, 627 F. App’x at 878 (explaining that under the FTCA, a tort claim against the United
States is forever barred unless it is presented within two years after the claim accrues and an
action is filed within six months after notice of a final agency decision); Phillips v. United States,
260 F.3d 1316, 1317 (11th Cir. 2001) (“It is undisputed that under section 2401(b), a tort claim
must be presented to the appropriate federal agency within two years after the claim accrues and
the lawsuit must be commenced within six months after the receipt of a final agency decision.”
(emphasis in original)).
Defendant argues that Plaintiff has failed to comply with all conditions precedent pursuant
to the FTCA before filing this case. Mot. at 2–5.1 Specifically, Defendant contends that Plaintiff
1 	In support, Defendant attaches a declaration by Lisa A. List, Paralegal and Office Manager at the
Headquarters Air Force Reserve Command (“Declaration”), [ECF No. 13-1]. In the Declaration, List attests
that the Headquarters of the Air Force Reserve Command did not receive the Standard Form 95 from
Plaintiff until April 24, 2025. See id. ¶ 5. “Although ‘a court generally may not consider matters outside
of the pleadings without treating the motion as a motion for summary judgment,’ one ‘exception[] to this
conversion rule’ is ‘the incorporation-by-reference doctrine.’” Watson v. Kingdom of Saudi Arabia, 159
F.4th 1234, 1266 n.4 (11th Cir. 2025) (quoting Johnson v. City of Atlanta, 107 F.4th 1292, 1298 (11th Cir.
2024)). The incorporation-by-reference doctrine provides that “a court may properly consider a document”
when resolving a motion to dismiss “if the document is (1) central to the plaintiff’s claims; and
(2) undisputed, meaning that its authenticity is not challenged.” Id. (quoting Johnson, 107 F.4th at 1300).
“A document, by definition, is central to a complaint when it is ‘a necessary part of [a plaintiff’s] effort to
make out a claim.’” Kalpakchian v. Bank of Am. Corp., 832 F. App’x 579, 583 (11th Cir. 2020). However,
“[a] document is not ‘central’ merely because it is directly responsive to a factual allegation.” Adamson v.
Poorter, No. 06-15941, 2007 WL 2900576, at *3 (11th Cir. Oct. 4, 2007). 	Upon careful review and
consideration, the Court finds that even assuming it would be proper to consider the Declaration, the Court
need not do so to address the Motion. Accordingly, the Court declines to consider the Declaration at this
juncture.
Case 1:25-cv-23940-RAR Document 23 Entered on FLSD Docket 02/23/2026 Page 5 of 7

Page 6 of 7
failed to present an administrative claim to the United States Air Force, which is the appropriate
federal agency in this matter, within two years after her claim accrued. Id. The Supreme Court
has stated that, generally, a claim “accrues” for purposes of the FTCA, “at the time of the
plaintiff’s injury.” 	Rushing v. United States, 288 F. App’x 616, 619 (11th Cir. 2008) (citing
United States v. Kubrick, 444 U.S. 111, 120 (1979)). Thus, a claim “accrues” when the plaintiff
is “armed with the facts about the harm done to [her], [and] can protect [herself] by seeking advice
in the medical and legal community.” Id. (citing Kubrick, 444 U.S. at 123).
Here, Plaintiff was injured on April 2, 2023, Compl. ¶ 7, so Plaintiff had to file an
administrative claim by April 2, 2025. But Plaintiff did not present her tort claims to the United
States Air Force until April 24, 2025—twenty-two days after the required date of April 2, 2025.
Mot. at 4. Defendant’s Motion attaches Plaintiff’s Standard Form 95, which indicates that the
Headquarters of the Air Force Reserve Command did not receive the Standard Form 95 from
Plaintiff until April 24, 2025. Standard Form 95, [ECF No. 13-2]. Indeed, the Standard Form 95
was not even executed, much less received, until April 2, 2025. 	See id. 	Moreover, the Final
Denial Letter from the Department of the Air Force, which Plaintiff offers for the Court’s
consideration, confirms that the Air Force Claims and Tort Litigation Division denied Plaintiff’s
claim due to untimeliness. See [ECF No. 14-1].2
2 As opposed to the Declaration, the Court may consider the Final Denial Letter that Plaintiff attached to
her Response, [ECF No. 14-1], as well as the Standard Form 95 attached to the Motion, [ECF No. 13-2],
pursuant to the incorporation-by-reference doctrine. The authenticity of the Final Denial Letter and the
Standard Form 95 are undisputed. Further, both are central to Plaintiff’s claims, that is, whether Plaintiff
timely presented her claim to the appropriate agency. Accordingly, the Court may consider the Final Denial
Letter and the Standard Form 95 at this juncture. See, e.g., Cho v. United States, No. 5:13-cv-153, 2013
WL 12177501, at *1 n.1 (M.D. Ga. Sept. 19, 2013) (finding consideration of an “attached Form 95” under
the incorporation-by-reference doctrine is appropriate when plaintiff “does not state any reason why she
believes the attached form is not a genuine copy of her administrative claim”); Rose v. United States, No.
6:24-cv-1590, 2025 WL 1795945, at *2 (M.D. Fla. June 30, 2025) (finding “[p]laintiff’s . . . claim form is
central to her claim because an FTCA action cannot be brought unless the claimant shall have first presented
the claim to the appropriate [f]ederal agency.” (citation and internal quotations omitted)); Est. of Dash ex.
rel. Dash v. United States, No. 22-cv-80015, 2022 WL 22317681, at *1 n.2 (S.D. Fla. Oct. 11, 2022) (finding
Case 1:25-cv-23940-RAR Document 23 Entered on FLSD Docket 02/23/2026 Page 6 of 7

Page 7 of 7
The FTCA’s time limitation under 28 U.S.C. § 2401(b) bars untimely suits, even if a
plaintiff has fully exhausted administrative remedies by presenting their claims to the appropriate
agency and receiving the agency’s denial. 	See McNeil v. United States, 508 U.S. 106, 110–13
(1993); see also Harris, 627 F. App’x at 879–81 (affirming dismissal of plaintiff’s FTCA lawsuit
as untimely due to the two-year time bar, despite plaintiff’s exhaustion of administrative
remedies); Hernandez v. United States, 771 F. Supp. 3d 1306, 1323 (S.D. Fla. 2025) (explaining
a claimant must abide by the FTCA’s time limitations, which “impose[] a two-year limit for
presenting claims, running from the date of accrual.”). Here, the record makes clear that Plaintiff
failed to timely present her administrative claim to the appropriate agency within two years of her
injury as required by 28 U.S.C. § 2401(b). 	Accordingly, Plaintiff’s claims are time-barred, and
dismissal of this case is warranted.3
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:
1. 	Defendant’s Motion to Dismiss, [ECF No. 13], is GRANTED.
2. 	The Complaint, [ECF No. 1], is DISMISSED with prejudice.
3. 	Any pending motions are DENIED as MOOT.
4. 	The Clerk is directed to CLOSE this case.
DONE AND ORDERED in Miami, Florida, this 23rd day of February, 2026.
_________________________________
RODOLFO A. RUIZ II
UNITED STATES DISTRICT JUDGE
plaintiffs’ administrative claim forms central to their FTCA claims and noting that the parties did not dispute
their authenticity).
3 The Court declines to reach Defendant’s argument that the Complaint is a shotgun pleading, as the Court
dismisses this action solely based on Plaintiff’s failure to exhaust.
Case 1:25-cv-23940-RAR Document 23 Entered on FLSD Docket 02/23/2026 Page 7 of 7