1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUBEN RIVERO JUAREZ, Case No.: 22-cv-1116-GPC-DEB 12 Plaintiff, 13 ORDER DENYING DEFENDANT’S v. MOTION TO DISMISS 14 UNITED STATES OF AMERICA, 15 [ECF No. 4] Defendant. 16
17 On December 8, 2022, Defendant United States of America (“Defendant”) filed a 18 Motion to Dismiss arguing the statute of limitations had expired. ECF No. 4. On January 19 12, 2023, Plaintiff Ruben Rivero Juarez (“Plaintiff” or “Juarez”) filed a Response, (ECF 20 No. 4), and on January 26, 2023, Defendant filed a Reply, (ECF No. 7). For the reasons 21 below, the Court DENIES Defendant’s Motion to Dismiss. 22 BACKGROUND 23 On July 21, 2022, Plaintiff filed a Complaint pursuant to the Federal Tort Claims 24 Act (“FTCA”) alleging Defendant United States was negligent in “failing to adhere to the 25 prevailing professional standard of care which is generally recognized as acceptable and 26 appropriate by reasonably prudent similar health care providers.” ECF No. 1 (“Compl.”) 27 1 at 1. Plaintiff’s Complaint is highly technical and does not attempt to translate or discuss 2 in lay terms his medical records, procedures, or diagnoses. As such, the Court has made 3 sense of the Complaint as best it could. Plaintiff alleges he arrived at a shelter in Tijuana 4 on June 5, 2019 and had a “headache, ear pain, and low-grade fever” from July 15 to 5 August 5. Id. at 3. On August 1, 2019, Plaintiff was treated at Hospital General in 6 Tijuana. Id. He was given a steroid injection, anti-inflammatory, and various 7 prescriptions. Id. Once taken into CPB custody on August 5, 2019, Plaintiff was held in 8 ICE & CBP Otay Mesa Detention Center for five days. Id. 9 Plaintiff states that, once in ICE & CBP custody, he “asked every day for the first 10 three days for medical attention,” and on August 7, 2019, was “finally allowed to see a 11 PA . . . who cleaned debris from his ear canal and prescribed ofloxacin drops.” Id. On 12 August 9, 2019, Plaintiff saw a different PA “with worsening symptoms” and was given 13 ciprofloxacin, which Plaintiff states is “not the appropriate antibiotic for an ear 14 infection.” Id. at 4. He was also given a prescription for “ofloxacin ear drops,” which 15 Plaintiff states is “standard treatment for otitis externa.” Id. Plaintiff and his family were 16 released from CBP custody that same day and taken to stay with a sponsor family in 17 Alpine, California. Id. 18 On August 10, 2019, Plaintiff saw a doctor at UCSD Medical Center who “started 19 him on Keflex oral antibiotic,” “stopped oral ciprofloxacin,” and “continued ofloxacin 20 drops.” Id. He states that two days later he “was not improving, now vomiting, having 21 fevers and worsening right-sided headache.” Id. Plaintiff eventually was advised to go to 22 the Emergency Room, where “he had a CT scan of his head and neck showing 23 mastoiditis.” Id. On August 13, he had a “Myringotomy procedure performed to drain 24 fluid and relieve pressure on right tympanic membrane.” Id. at 5. On August 15, 2019, 25 Plaintiff “had a right mastoidectomy.” Id. at 6. Plaintiff was released from the hospital on 26 August 28, 2019. Id. 27 1 In his Complaint, Plaintiff alleges that if he had been “properly diagnosed and 2 referred to a medical doctor or competent, supervised PA in a timely fashion after the 3 Defendant’s initial diagnosis and treatment proved unsuccessful,” he would not have had 4 to undergo surgery and his subsequent problems would have been avoided. Id. Plaintiff 5 seeks compensatory damages. Id. at 8. 6 LEGAL STANDARD 7 The FTCA allows for a limited waiver of federal government sovereign immunity 8 in tort suits. See United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA provides 9 two statutes of limitations periods for filing a tort claim. See 28 U.S.C. § 2401(b). First, a 10 claimant must present their claim “to the appropriate Federal agency within two years 11 after such claim accrues.” Id. Second, a claimant must file their lawsuit in the district 12 court “within six months after . . . final denial of the claim by the agency to which it was 13 presented.” Id. Section 2401(b) is not jurisdictional and may be subject to equitable 14 tolling. See Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1033, 1051 (9th Cir. 2013) 15 (overruling Marley v. United States, 567 F.3d 1030 (9th Cir. 2009)), aff’d United States v. 16 Wong, 575 U.S. 402 (2015). 17 DISCUSSION 18 Plaintiff filed an administrative claim with CBP on July 30, 2021. ECF No. 4, Exh. 19 A. Plaintiff’s claim was denied via certified mail dated January 25, 2022. ECF No. 4, 20 Exh. B. Thus, according to 28 U.S.C. § 2401(b)’s six-month limitations period, Plaintiff 21 was required to file his Complaint in this Court on or before July 25, 2022. Plaintiff’s 22 Complaint was instead filed on July 29, 2022, four days late. ECF No. 1. 23 I. Section 2401(b) and Equitable Tolling 24 In United States v. Wong, 575 U.S. 402 (2015), the Supreme Court resolved a 25 Circuit split and affirmed the Ninth Circuit’s holding in Kwai Fun Wong v. Beebe, 732 26 F.3d 1030 (9th Cir. 2013), which found “the FTCA’s time bars are nonjurisdictional and 27 1 subject to equitable tolling.” United States v. Wong, 575 U.S. 402, 420 (2015). The 2 Supreme Court in Wong stated that § 2401(b) was subject to the “rebuttable presumption” 3 of equitable tolling. Id. at 408-412 (discussing Irwin v. Dep’t of Veterans Affairs, 498 4 U.S. 89 (1990) and its holding that suits between private parties are presumptively 5 subject to equitable tolling). This presumption in favor of equitable tolling can only be 6 overcome if Congress “made the time bar at issue jurisdictional,” and given the “harsh 7 consequences” of a strict time bar, the Court required a “clear statement” that Congress 8 intended to “tag a statute of limitations as jurisdictional.” Id. at 408-10. The Court did not 9 find that “the text nor the context nor the legislative history indicate[d] (must less [did] so 10 plainly)” that § 2401(b) is anything other than a “standard time bar” subject to equitable 11 tolling. Id. at 410. 12 Defendant argues that § 2401(b) is “jurisdictional.” ECF No. 4 at 6 (“The statutes 13 of limitations contained within the FTCA are a threshold jurisdictional requirement and 14 the failure to follow them deprives a court of jurisdiction.”). Defendant states the “Ninth 15 Circuit has squarely addressed the issue presented by this case and ruled that a complaint 16 is untimely even where it is filed six months and one day after the agency denies 17 Plaintiffs’ administrative claims in certified letters.” ECF No. 4 at 7. These statements by 18 Defendant are misleading and ignore the contrary controlling Ninth Circuit and Supreme 19 Court precedent discussed above. To make its argument, the Government relies on Adams 20 v. United States, 658 F.3d 928 (9th Cir. 2011), a pre-Wong case in which the Ninth 21 Circuit stated § 2401(b) could not be equitably tolled. See Adams v. United States, 658 22 F.3d 928, 933 (9th Cir. 2011) (stating FTCA’s statute of limitations is not subject to 23 equitable tolling and “FTCA claimants must strictly adhere to the statute of limitations or 24 lose the right to invoke federal jurisdiction”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUBEN RIVERO JUAREZ, Case No.: 22-cv-1116-GPC-DEB 12 Plaintiff, 13 ORDER DENYING DEFENDANT’S v. MOTION TO DISMISS 14 UNITED STATES OF AMERICA, 15 [ECF No. 4] Defendant. 16
17 On December 8, 2022, Defendant United States of America (“Defendant”) filed a 18 Motion to Dismiss arguing the statute of limitations had expired. ECF No. 4. On January 19 12, 2023, Plaintiff Ruben Rivero Juarez (“Plaintiff” or “Juarez”) filed a Response, (ECF 20 No. 4), and on January 26, 2023, Defendant filed a Reply, (ECF No. 7). For the reasons 21 below, the Court DENIES Defendant’s Motion to Dismiss. 22 BACKGROUND 23 On July 21, 2022, Plaintiff filed a Complaint pursuant to the Federal Tort Claims 24 Act (“FTCA”) alleging Defendant United States was negligent in “failing to adhere to the 25 prevailing professional standard of care which is generally recognized as acceptable and 26 appropriate by reasonably prudent similar health care providers.” ECF No. 1 (“Compl.”) 27 1 at 1. Plaintiff’s Complaint is highly technical and does not attempt to translate or discuss 2 in lay terms his medical records, procedures, or diagnoses. As such, the Court has made 3 sense of the Complaint as best it could. Plaintiff alleges he arrived at a shelter in Tijuana 4 on June 5, 2019 and had a “headache, ear pain, and low-grade fever” from July 15 to 5 August 5. Id. at 3. On August 1, 2019, Plaintiff was treated at Hospital General in 6 Tijuana. Id. He was given a steroid injection, anti-inflammatory, and various 7 prescriptions. Id. Once taken into CPB custody on August 5, 2019, Plaintiff was held in 8 ICE & CBP Otay Mesa Detention Center for five days. Id. 9 Plaintiff states that, once in ICE & CBP custody, he “asked every day for the first 10 three days for medical attention,” and on August 7, 2019, was “finally allowed to see a 11 PA . . . who cleaned debris from his ear canal and prescribed ofloxacin drops.” Id. On 12 August 9, 2019, Plaintiff saw a different PA “with worsening symptoms” and was given 13 ciprofloxacin, which Plaintiff states is “not the appropriate antibiotic for an ear 14 infection.” Id. at 4. He was also given a prescription for “ofloxacin ear drops,” which 15 Plaintiff states is “standard treatment for otitis externa.” Id. Plaintiff and his family were 16 released from CBP custody that same day and taken to stay with a sponsor family in 17 Alpine, California. Id. 18 On August 10, 2019, Plaintiff saw a doctor at UCSD Medical Center who “started 19 him on Keflex oral antibiotic,” “stopped oral ciprofloxacin,” and “continued ofloxacin 20 drops.” Id. He states that two days later he “was not improving, now vomiting, having 21 fevers and worsening right-sided headache.” Id. Plaintiff eventually was advised to go to 22 the Emergency Room, where “he had a CT scan of his head and neck showing 23 mastoiditis.” Id. On August 13, he had a “Myringotomy procedure performed to drain 24 fluid and relieve pressure on right tympanic membrane.” Id. at 5. On August 15, 2019, 25 Plaintiff “had a right mastoidectomy.” Id. at 6. Plaintiff was released from the hospital on 26 August 28, 2019. Id. 27 1 In his Complaint, Plaintiff alleges that if he had been “properly diagnosed and 2 referred to a medical doctor or competent, supervised PA in a timely fashion after the 3 Defendant’s initial diagnosis and treatment proved unsuccessful,” he would not have had 4 to undergo surgery and his subsequent problems would have been avoided. Id. Plaintiff 5 seeks compensatory damages. Id. at 8. 6 LEGAL STANDARD 7 The FTCA allows for a limited waiver of federal government sovereign immunity 8 in tort suits. See United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA provides 9 two statutes of limitations periods for filing a tort claim. See 28 U.S.C. § 2401(b). First, a 10 claimant must present their claim “to the appropriate Federal agency within two years 11 after such claim accrues.” Id. Second, a claimant must file their lawsuit in the district 12 court “within six months after . . . final denial of the claim by the agency to which it was 13 presented.” Id. Section 2401(b) is not jurisdictional and may be subject to equitable 14 tolling. See Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1033, 1051 (9th Cir. 2013) 15 (overruling Marley v. United States, 567 F.3d 1030 (9th Cir. 2009)), aff’d United States v. 16 Wong, 575 U.S. 402 (2015). 17 DISCUSSION 18 Plaintiff filed an administrative claim with CBP on July 30, 2021. ECF No. 4, Exh. 19 A. Plaintiff’s claim was denied via certified mail dated January 25, 2022. ECF No. 4, 20 Exh. B. Thus, according to 28 U.S.C. § 2401(b)’s six-month limitations period, Plaintiff 21 was required to file his Complaint in this Court on or before July 25, 2022. Plaintiff’s 22 Complaint was instead filed on July 29, 2022, four days late. ECF No. 1. 23 I. Section 2401(b) and Equitable Tolling 24 In United States v. Wong, 575 U.S. 402 (2015), the Supreme Court resolved a 25 Circuit split and affirmed the Ninth Circuit’s holding in Kwai Fun Wong v. Beebe, 732 26 F.3d 1030 (9th Cir. 2013), which found “the FTCA’s time bars are nonjurisdictional and 27 1 subject to equitable tolling.” United States v. Wong, 575 U.S. 402, 420 (2015). The 2 Supreme Court in Wong stated that § 2401(b) was subject to the “rebuttable presumption” 3 of equitable tolling. Id. at 408-412 (discussing Irwin v. Dep’t of Veterans Affairs, 498 4 U.S. 89 (1990) and its holding that suits between private parties are presumptively 5 subject to equitable tolling). This presumption in favor of equitable tolling can only be 6 overcome if Congress “made the time bar at issue jurisdictional,” and given the “harsh 7 consequences” of a strict time bar, the Court required a “clear statement” that Congress 8 intended to “tag a statute of limitations as jurisdictional.” Id. at 408-10. The Court did not 9 find that “the text nor the context nor the legislative history indicate[d] (must less [did] so 10 plainly)” that § 2401(b) is anything other than a “standard time bar” subject to equitable 11 tolling. Id. at 410. 12 Defendant argues that § 2401(b) is “jurisdictional.” ECF No. 4 at 6 (“The statutes 13 of limitations contained within the FTCA are a threshold jurisdictional requirement and 14 the failure to follow them deprives a court of jurisdiction.”). Defendant states the “Ninth 15 Circuit has squarely addressed the issue presented by this case and ruled that a complaint 16 is untimely even where it is filed six months and one day after the agency denies 17 Plaintiffs’ administrative claims in certified letters.” ECF No. 4 at 7. These statements by 18 Defendant are misleading and ignore the contrary controlling Ninth Circuit and Supreme 19 Court precedent discussed above. To make its argument, the Government relies on Adams 20 v. United States, 658 F.3d 928 (9th Cir. 2011), a pre-Wong case in which the Ninth 21 Circuit stated § 2401(b) could not be equitably tolled. See Adams v. United States, 658 22 F.3d 928, 933 (9th Cir. 2011) (stating FTCA’s statute of limitations is not subject to 23 equitable tolling and “FTCA claimants must strictly adhere to the statute of limitations or 24 lose the right to invoke federal jurisdiction”). As the Court discussed above, Kwai Fun 25 Wong held § 2401(b) was presumptively subject to equitable tolling, and the Supreme 26 Court affirmed this holding. See Kwai Fun Wong, 732 F.3d at 1048 (“We therefore hold 27 1 that § 2401(b) is a nonjurisdictional claim-processing rule subject to the presumption in 2 favor of equitable tolling, and so overrule Marley’s contrary holding.”). As a result, if the 3 Court finds equitable tolling is warranted, the Court is not required to dismiss a complaint 4 brought pursuant to the FTCA simply because it was filed more than six months after 5 agency denial, as Defendant argues. Section 2401(b) is not a threshold jurisdictional 6 requirement. Wong, 575 U.S. at 420 (“FTCA’s time bars are nonjurisdictional”). 7 II. Equitable Tolling and Plaintiff’s Complaint 8 Still, the Court must determine if equitable tolling is justified under the 9 circumstances of this case. A litigant seeking equitable tolling must establish: (1) that 10 they have pursued their rights diligently; and (2) that some extraordinary circumstances 11 stood in their way. See Kwai Fun Wong, 732 F.3d at 1052 (quoting Credit Suisse Secs. 12 (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012)); see also Wong, 575 U.S. at 408 13 (stating court may “pause the running of a limitations statute in private litigation when a 14 party ‘has pursued his rights diligently but some extraordinary circumstances’ 15 prevent[ed] him from meeting a deadline”). The first prong does not “‘require an 16 overzealous or extreme pursuit of any and every avenue of relief. It requires the effort 17 that a reasonable person might be expected to deliver under his or her particular 18 circumstances.’” Id. (quoting Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011)). 19 “Central to this analysis is whether the plaintiff was ‘without any fault’ in pursuing his 20 claim.” Id. (quoting Fed. Election Comm’n v. Williams, 104 F.3d 237, 240 (9th Cir. 21 1996)). As to the second prong, a litigant must show “‘extraordinary circumstances’” 22 were the cause of any untimeliness. Id. (quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th 23 Cir. 2009)). A “‘garden variety claim of excusable neglect, such as a simple 24 miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable 25 tolling.’” Id. (quoting Holland v. Florida, 560 U.S. 631, 651-52 (2010)). Equitable tolling 26 is typically appropriate when a litigant is unable to timely file due to “‘external 27 1 circumstances beyond their direct control.’” Id. (quoting Harris v. Carter, 515 F.3d 1051, 2 1055 (9th Cir. 2008)). 3 Plaintiff’s Opposition to the Motion to Dismiss states that Plaintiff’s counsel 4 attempted to file the Complaint on July 21, 2022. ECF No. 6 at 1. Counsel received a 5 payment confirmation but did not receive a Notice of Electronic Filing (“NEF”). Id.; ECF 6 No. 6-1 at 14 (Exh. 2) (payment confirmation dated July 21, 2022). The Opposition also 7 states that counsel dealt with a kidney stone from July 26 to July 27. Id. at 2. Counsel 8 made “several attempts without success to contact the CM/ECF Help Desk Support . . . 9 during their working hours,” and was first able to speak with someone on July 29, 2022. 10 Id. CM/ECF Help Desk Support advised counsel that his case had not been filed, and 11 counsel subsequently re-filed the identical Complaint on July 29, 2022. Id. Plaintiff’s 12 Opposition states that “[h]ad CM/ECF given notice of a refund of the $402 filing fee paid 13 on July 21, 2022, [counsel] would have had Friday, July 22nd through Monday, July 25th 14 at midnight—four days to easily re-file this matter within the FTCA’s Six Month Statute 15 of Limitations.” Id. 16 A. Diligence 17 The diligence prong “‘covers those affairs within the litigant’s control.’” Perez v. 18 Diaz, 2017 WL 882229, at *4 (S.D. Cal. Mar. 6, 2017) (quoting Menominee Indian Tribe 19 of Wis. v. United States, 136 S. Ct. 750, 756 (2016)). The diligence inquiry is intended to 20 determine whether a “litigant was responsible for its own delay.’” Id. (quoting 21 Menominee, 136 S. Ct. at 756). Still, this prong does not require an “overzealous” or 22 “extreme pursuit” of the claim. Id. 23 Here, Plaintiff’s counsel attempted to file the Complaint on July 21, 2019, four 24 days before expiration of the six-month time bar. See ECF No. 6-1, Exhs. 2 (payment 25 confirmation dated July 21, 2019), 3 (metadata of July 21, 2019 complaint). Plaintiff paid 26 the $402 filing fee and received a payment confirmation email stating that the payment 27 1 had been “successfully processed.” Id., Exh. 2. The Court finds filing the Complaint and 2 paying the associated fee four days prior to the expiration of the six-month time limit 3 constitutes reasonable diligence in this matter. This is not a case in which Plaintiff made 4 no attempt to file suit prior to expiration of the limitations period, and this is not a case in 5 which the “litigant’s own mistake clearly contributed to his predicament.” Harris, 515 6 F.3d at 1055. It appears there was a processing error on behalf of the district’s e-filing 7 system. It was reasonable for Plaintiff’s counsel to assume the Complaint had been 8 properly filed upon receipt of the payment confirmation email. Indeed, as Plaintiff states, 9 “[n]o clerk of court would ever accept the filing fee for depositing without the 10 complaint.” ECF No. 6 at 3. 11 Further, upon learning that the initial Complaint had not been filed properly, 12 counsel took reasonable corrective steps considering the circumstances. Counsel re-filed 13 the identical Complaint on July 29, 2022, but as stated in the Opposition, Counsel was 14 suffering from a kidney stone on July 26th and 27th. ECF No. 6 at 2. Counsel took the 15 necessary steps to re-file this action upon recovering from his kidney stone and speaking 16 with the CM/ECF Help Desk Support. Thus, the Court finds that Plaintiff and his counsel 17 were diligent in pursuing this action. 18 B. Extraordinary Circumstances 19 The extraordinary circumstances prong examines the external circumstances 20 beyond the litigant’s direct control. A “‘garden variety of excusable neglect, such as a 21 simple miscalculation that leads a lawyer to miss a filing deadline,’” does not constitute 22 extraordinary circumstances. Kwai Fun Wong, 732 F.3d at 1052 (quoting Holland v. 23 Florida, 560 U.S. 631, 651-52 (2010)). 24 The Court finds extraordinary circumstances, beyond Plaintiff’s direct control, are 25 present in this case. As stated above, it was reasonable for Plaintiff’s counsel to assume 26 the Complaint was properly filed on July 21, 2019 upon email confirmation of a 27 1 successful payment. ECF no. 6-1 at 14. Plaintiff’s Opposition states that “CM/ECF then 2 lost, misplaced or deleted the pdf files.” ECF No. 6 at 3. The backend failure of the 3 district’s e-filing system is clearly beyond Plaintiff’s “direct control.” The system’s 4 failure to file the Complaint after receipt and confirmation of the $402 filing fee is an 5 extraordinary occurrence; a reasonable attorney would likely assume the Complaint had 6 been properly filed absent a subsequent notification that the fee and/or documents were 7 rejected. 8 Further, the four-day delay does not substantially prejudice the Defendant and does 9 not significantly undercut the “notice concern that partially underlies limitations 10 statutes.” Kwai Fun Wong, 732 F.3d at 1053. A four-day delay does not realistically 11 threaten the possibility that evidence has been lost or that memories have faded. See ECF 12 No. 4 at 5 (citing Ord. of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348-49 13 (1944) (“Statute of limitations . . . promote justice by preventing surprises through the 14 revival of claims that have been allowed to slumber until evidence has been lost, 15 memories have faded, and witnesses have disappeared.”)). 16 Equitable tolling exists “to relieve hardships which, from time to time, arise from a 17 hard and fast adherence to more absolute legal rules, which, if strictly applied, threaten 18 the evils of archaic rigidity.” Kwai Fun Wong, 732 F.3d at 1052; see also Harris, 515 19 F.3d at 1055 (stating the rationale behind equitable tolling is “to soften the harsh impact 20 of technical rules which might otherwise prevent a good faith litigant from having a day 21 in court”). To bar Plaintiff’s suit because of a four-day delay would risk falling into 22 “archaic rigidity.” Plaintiff clearly attempted to file his Complaint and paid the filing fee 23 four days prior to the § 2401(b) six-month deadline. For reasons unknown, the district’s 24 e-filing system rejected Plaintiff’s Complaint. Equitable tolling is warranted under these 25 circumstances. 26 27 1 CONCLUSION 2 For the reasons above, the Court finds equitable tolling is warranted, and 3 || Defendant’s Motion to Dismiss is DENIED. 4 IT IS SO ORDERED. 5 ||Dated: March 1, 2023 2 sale Od 6 Hon. Gonzalo P. Curiel 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22-cv-1116-GPC-DEB