Atkinson v. Las Vegas Valley Water District

• Court: District Court, D. Nevada
• Decided: April 8, 2025
• Docket: 2:23-cv-01350
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 Devontia Atkinson, Case No. 2:23-cv-01350-ART-MDC

6 Plaintiff, ORDER DENYING R&R v. (ECF No. 16) 7 Las Vegas Valley Water District, 8 Defendant. 9 10 11 Plaintiff Devontia Atkinson sued Defendant Las Vegas Valley Water District 12 pro se under Title VII for wrongful discharge, discrimination, and a hostile work 13 environment. (ECF No. 12.) The Magistrate Judge issued a Report and 14 Recommendation (R&R) recommending that the Court dismiss Atkinson’s suit as 15 untimely. (ECF No. 16.) Atkinson objected to the R&R. (ECF No. 17.) The Court 16 grants Atkinson’s objection and denies the R&R. 17 I. BACKGROUND 18 Atkinson filed a charge with the Equal Employment Opportunity 19 Commission (EEOC) around August 16, 2022, regarding alleged discrimination 20 by Defendant. (ECF No. 2-1 at 5.) He received a Notice of Right to Sue from the 21 EEOC on May 24, 2023, which permitted him to sue in federal court within 90 22 days. (ECF No. 12 at 12.) After receiving the Right to Sue, he found a lawyer who 23 would represent him, but the lawyer, “due to an overwhelming caseload, was 24 forced to drop [his] case.” (ECF No. 17 at 1.) Atkinson then met with another 25 lawyer, who refused to take Atkinson’s case, leaving him “without representation 26 in the final days of the filing deadline.” (Id. at 1–2.) 27 Atkinson filed this suit pro se at the Las Vegas Justice Court on August 24, 28 2023, within the three months permitted by his Right to Sue. Early the next week, 2 been filed in the wrong court. (ECF No. 12 at 10.) Two days later Atkinson filed it 3 in this Court. (See ECF No. 1.) 4 The Magistrate Judge issued a R&R that Atkinson’s suit be dismissed as 5 untimely. (ECF No. 16.) Atkinson timely objected to the R&R, explaining his 6 difficulties securing counsel. (ECF No. 17.) 7 II. STANDARD OF REVIEW 8 The Court conducts a de novo review of the objected-to findings and 9 conclusions of a report and recommendation. 28 U.S.C. § 636(b)(1)(C); LR IB 3- 10 2(b). The Court “may accept, reject or modify, in whole or in part, the magistrate 11 judge’s findings or recommendations.” LR IB 3-2(b); United States v. Reyna– 12 Tapia, 328 F.3d 1114, 1121–22 (9th Cir. 2003). 13 III. ANALYSIS 14 Atkinson seeks equitable tolling based on his difficulty finding counsel and 15 because he timely filed in the wrong court. Equitable tolling applies when a 16 litigant shows that they pursued their rights diligently and that an extraordinary 17 circumstance stood in the way of timely filing. Menominee Indian Tribe of Wis. v. 18 United States, 577 U.S. 250, 255 (2016). 19 To meet the diligence requirement, a litigant need only show reasonable 20 effort, not “maximum feasible diligence.” Holland v. Florida, 560 U.S. 631, 653 21 (2010) (internal citations removed). Diligence may be shown “by filing a defective 22 pleading during the statutory period.” Irwin v. Dep't of Veterans Affs., 498 U.S. 23 89, 96 n.3 (1990) (collecting cases and citing Burnett v. N. Y. Cent. R.R. Co., 380 24 U.S. 424 (“plaintiff timely filed complaint in wrong court”)). Atkinson timely filed 25 his case in the wrong court and promptly filed the case in the correct court upon 26 learning of his error. (ECF No. 17.) Additionally, the fact that Atkinson sought 27 legal counsel and promptly filed in the correct court after learning of his mistake 28 also shows diligent pursuit of his rights. 1 To show extraordinary circumstances, a litigant seeking equitable tolling 2 || must show that “matters outside [the litigant’s] control” prevented timely filing. 3 || Menominee Indian Tribe of Wis., 577 U.S. at 257. Extraordinary circumstances 4 || may arise out of attorney misconduct, “not limited to abandonment.” Milam v. 5 || Harrington, 953 F.3d 1128, 1134 (9th Cir. 2020) (citing Luna v. Kernan, 784 F.3d 6 || 640, 648 (9th Cir. 2015)); see also Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 7 || 1999), as amended (Mar. 22, 1999) (relationship with lawyer may constitute 8 || extraordinary circumstance). Atkinson faced extraordinary circumstances when 9 || his retained lawyer dropped him as a client, leaving him “without representation 10 || in the final days of the filing deadline.” (ECF No. 17 at 1-2.) Accordingly, the Court 11 || finds that Atkinson’s retained lawyer dropping Atkinson’s case is a sufficient 12 || extraordinary circumstance to justify equitable tolling. 13 || IV. CONCLUSION 14 The Court denies the R&R (ECF No. 16) and grants Atkinson’s objection 15 || (ECF No. 17). 16 17 DATED THIS 8th day of April, 2025. 18 1 den 19 ? res / ANNE R. TRAUM 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28