1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Francisco Javier Laborin Rodriguez, No. CV-24-00049-TUC-RM
10 Plaintiff, ORDER
11 v.
12 United States of America, et al.,
13 Defendants. 14 15 Pending before the Court is Defendant United States of America’s Motion to 16 Dismiss. (Doc. 11.) Plaintiff has filed a Response (Doc. 14) and a Supplemental 17 Response (Doc. 16) to the Motion, and Defendant has filed a Reply (Doc. 15). For the 18 following reasons, the Court will deny the Motion. 19 I. Background 20 Plaintiff alleges that on January 25, 2021, a U.S. Customs and Border Protection 21 (“CBP”) agent struck him and ran him over with a government vehicle. (Doc. 1.) Based 22 on this alleged incident, Plaintiff asserts claims of negligence and negligence per se 23 against Defendant United States of America (“Defendant”) pursuant to the Federal Tort 24 Claims Act (“FTCA”). (Id.) The parties agree that Plaintiff timely submitted an 25 administrative tort claim to CBP in accordance with the FTCA’s exhaustion requirement, 26 and that CBP denied the claim in writing on July 25, 2023. (Doc. 11 at 2, 4; Doc. 14 at 27 2.) The docket reflects that Plaintiff’s Complaint was filed on January 26, 2024. (Doc. 28 1.) 1 In its Motion to Dismiss, Defendant contends that Plaintiff’s Complaint was filed 2 one day after the FTCA’s six-month limitations period expired. (Doc. 11 at 4.) 3 Defendant argues that because the untimeliness of Plaintiff’s suit is apparent on its face, 4 the Court should dismiss Plaintiff’s claims pursuant to Rule 12(b)(6) of the Federal Rules 5 of Civil Procedure. (Id. at 4.) 6 II. Legal Standard 7 A district court may dismiss a claim under Federal Rule of Civil Procedure Rule 8 12(b)(6) on the basis that it is barred by the applicable statute of limitations “only when 9 the running of the statute is apparent on the face of the complaint.” Von Saher v. Norton 10 Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (internal quotations 11 omitted). Dismissal is not appropriate unless it is evident “beyond doubt that the plaintiff 12 can prove no set of facts that would establish the timeliness of the claim.” Supermail 13 Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th Cir. 1995). 14 Under the FTCA, a tort claim against the United States must be filed in federal 15 court “within six months after the date of mailing” of the relevant federal agency’s notice 16 of denial of the claim. 28 U.S.C. § 2401(b); see also United States v. Wong, 575 U.S. 17 402, 405 (2015) (stating that an FTCA claim must be “brought to federal court ‘within six 18 months’ after the agency acts on the claim”) (quoting 28 U.S.C. § 2401(b)).1 19 However, “[t]he limitations periods in 28 U.S.C. § 2401(b) are subject to the 20 doctrine of equitable tolling.” Redlin v. United States, 921 F.3d 1133, 1141 n.9 (9th Cir. 21 2019) (citing Wong, 575 U.S. at 411). To be entitled to equitable tolling, a litigant must 22 establish “(1) that he has been pursuing his rights diligently, and (2) that some 23 extraordinary circumstance stood in his way and prevented timely filing.” Smith v. 24 Davis, 953 F.3d 582, 588 (9th Cir. 2020) (internal quotations omitted). 25 1 Section § 2401(b) states in full: 26 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 27 after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial 28 of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b). 1 III. Discussion 2 There is no dispute that CBP mailed Plaintiff a notice of final denial on July 25, 3 2023 (Doc. 11 at 2, 4; Doc. 14 at 2), and that Plaintiff’s Complaint was not filed until 4 January 26, 2024 (Doc. 11 at 2, 5; Doc. 14 at 1, 6). Therefore, Plaintiff’s Complaint is 5 untimely because it was filed one day after the statute of limitations expired on January 6 25, 2024. Plaintiff’s argument that the statutory deadline was January 26, 2024, is 7 inconsistent with Ninth Circuit precedent. In Redlin, the Ninth Circuit clarified that the 8 six-month limitations period under 28 U.S.C. § 2401(b) “begins running as soon as the 9 agency mails its initial final notice.” Redlin, 921 F.3d at 1139. Additionally, the Ninth 10 Circuit upheld the district court’s dismissal of the plaintiff’s FTCA claim under Rule 11 12(b)(6) on the grounds that it was time-barred, concluding that since the agency denial 12 letter was mailed on July 14, 2015, the complaint had to be filed by January 14, 2016, to 13 be timely under 28 U.S.C. § 2401(b). Id at 1139-49. 14 Plaintiff argues, however, that his Complaint should be deemed timely under the 15 doctrine of equitable tolling because he diligently pursued his rights and extraordinary 16 circumstances prevented timely filing. (Doc. 14 at 4.) Specifically, Plaintiff explains 17 that on January 24, 2024, his counsel’s paralegal, Shawna Cole, initiated this action by 18 uploading the Complaint, Summons, and Civil Cover Sheet via the Court’s electronic 19 filing system (“CM/ECF system”), paying the $405 filing fee, and receiving an email 20 confirming the payment. (Id. at 2.) On January 25, 2024, counsel contacted Ms. Cole, 21 who confirmed the lawsuit had been filed. (Id.) However, on January 26, 2024, a clerk’s 22 office employee informed Ms. Cole that the Complaint had not been successfully 23 uploaded. (Id. at 2-3.) Plaintiff states that Ms. Cole immediately followed the clerk’s 24 instructions “to upload the Complaint document to the existing case that had been 25 initiated on January 24.” (Id. at 3.) To support these assertions, Plaintiff has submitted 26 Ms. Cole’s affidavit (Doc. 14-1; Doc. 16-4), the filing fee payment confirmation sent on 27 January 24, 2024 (Doc. 14-2), the Civil Cover Sheet dated January 24, 2024 (Doc. 16-1), 28 and metadata information for Plaintiff’s Civil Cover Sheet and Plaintiff’s Complaint 1 dated January 24, 2024 (Docs. 16-2; Doc. 16-3). 2 Defendant argues that equitable tolling is not warranted because Plaintiff was not 3 “without fault” nor the victim of “extraordinary circumstances” beyond his control that 4 would have prevented timely filing. (Doc. 11 at 4-6.) Defendant asserts that the filing 5 issue resulted from “garden variety” error or negligence. (Id. at 5.) Thus, Defendant 6 maintains that Plaintiff fails to satisfy either prong of the equitable tolling standard. (Id. 7 at 4-6.) 8 The Court finds that Plaintiff satisfies both prongs for equitable tolling. First, 9 Plaintiff has shown that he diligently pursued his rights. Ms. Cole acted reasonably by 10 attempting to file the Complaint on January 24, 2024, the day before the statute of 11 limitations expired.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Francisco Javier Laborin Rodriguez, No. CV-24-00049-TUC-RM
10 Plaintiff, ORDER
11 v.
12 United States of America, et al.,
13 Defendants. 14 15 Pending before the Court is Defendant United States of America’s Motion to 16 Dismiss. (Doc. 11.) Plaintiff has filed a Response (Doc. 14) and a Supplemental 17 Response (Doc. 16) to the Motion, and Defendant has filed a Reply (Doc. 15). For the 18 following reasons, the Court will deny the Motion. 19 I. Background 20 Plaintiff alleges that on January 25, 2021, a U.S. Customs and Border Protection 21 (“CBP”) agent struck him and ran him over with a government vehicle. (Doc. 1.) Based 22 on this alleged incident, Plaintiff asserts claims of negligence and negligence per se 23 against Defendant United States of America (“Defendant”) pursuant to the Federal Tort 24 Claims Act (“FTCA”). (Id.) The parties agree that Plaintiff timely submitted an 25 administrative tort claim to CBP in accordance with the FTCA’s exhaustion requirement, 26 and that CBP denied the claim in writing on July 25, 2023. (Doc. 11 at 2, 4; Doc. 14 at 27 2.) The docket reflects that Plaintiff’s Complaint was filed on January 26, 2024. (Doc. 28 1.) 1 In its Motion to Dismiss, Defendant contends that Plaintiff’s Complaint was filed 2 one day after the FTCA’s six-month limitations period expired. (Doc. 11 at 4.) 3 Defendant argues that because the untimeliness of Plaintiff’s suit is apparent on its face, 4 the Court should dismiss Plaintiff’s claims pursuant to Rule 12(b)(6) of the Federal Rules 5 of Civil Procedure. (Id. at 4.) 6 II. Legal Standard 7 A district court may dismiss a claim under Federal Rule of Civil Procedure Rule 8 12(b)(6) on the basis that it is barred by the applicable statute of limitations “only when 9 the running of the statute is apparent on the face of the complaint.” Von Saher v. Norton 10 Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (internal quotations 11 omitted). Dismissal is not appropriate unless it is evident “beyond doubt that the plaintiff 12 can prove no set of facts that would establish the timeliness of the claim.” Supermail 13 Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th Cir. 1995). 14 Under the FTCA, a tort claim against the United States must be filed in federal 15 court “within six months after the date of mailing” of the relevant federal agency’s notice 16 of denial of the claim. 28 U.S.C. § 2401(b); see also United States v. Wong, 575 U.S. 17 402, 405 (2015) (stating that an FTCA claim must be “brought to federal court ‘within six 18 months’ after the agency acts on the claim”) (quoting 28 U.S.C. § 2401(b)).1 19 However, “[t]he limitations periods in 28 U.S.C. § 2401(b) are subject to the 20 doctrine of equitable tolling.” Redlin v. United States, 921 F.3d 1133, 1141 n.9 (9th Cir. 21 2019) (citing Wong, 575 U.S. at 411). To be entitled to equitable tolling, a litigant must 22 establish “(1) that he has been pursuing his rights diligently, and (2) that some 23 extraordinary circumstance stood in his way and prevented timely filing.” Smith v. 24 Davis, 953 F.3d 582, 588 (9th Cir. 2020) (internal quotations omitted). 25 1 Section § 2401(b) states in full: 26 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 27 after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial 28 of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b). 1 III. Discussion 2 There is no dispute that CBP mailed Plaintiff a notice of final denial on July 25, 3 2023 (Doc. 11 at 2, 4; Doc. 14 at 2), and that Plaintiff’s Complaint was not filed until 4 January 26, 2024 (Doc. 11 at 2, 5; Doc. 14 at 1, 6). Therefore, Plaintiff’s Complaint is 5 untimely because it was filed one day after the statute of limitations expired on January 6 25, 2024. Plaintiff’s argument that the statutory deadline was January 26, 2024, is 7 inconsistent with Ninth Circuit precedent. In Redlin, the Ninth Circuit clarified that the 8 six-month limitations period under 28 U.S.C. § 2401(b) “begins running as soon as the 9 agency mails its initial final notice.” Redlin, 921 F.3d at 1139. Additionally, the Ninth 10 Circuit upheld the district court’s dismissal of the plaintiff’s FTCA claim under Rule 11 12(b)(6) on the grounds that it was time-barred, concluding that since the agency denial 12 letter was mailed on July 14, 2015, the complaint had to be filed by January 14, 2016, to 13 be timely under 28 U.S.C. § 2401(b). Id at 1139-49. 14 Plaintiff argues, however, that his Complaint should be deemed timely under the 15 doctrine of equitable tolling because he diligently pursued his rights and extraordinary 16 circumstances prevented timely filing. (Doc. 14 at 4.) Specifically, Plaintiff explains 17 that on January 24, 2024, his counsel’s paralegal, Shawna Cole, initiated this action by 18 uploading the Complaint, Summons, and Civil Cover Sheet via the Court’s electronic 19 filing system (“CM/ECF system”), paying the $405 filing fee, and receiving an email 20 confirming the payment. (Id. at 2.) On January 25, 2024, counsel contacted Ms. Cole, 21 who confirmed the lawsuit had been filed. (Id.) However, on January 26, 2024, a clerk’s 22 office employee informed Ms. Cole that the Complaint had not been successfully 23 uploaded. (Id. at 2-3.) Plaintiff states that Ms. Cole immediately followed the clerk’s 24 instructions “to upload the Complaint document to the existing case that had been 25 initiated on January 24.” (Id. at 3.) To support these assertions, Plaintiff has submitted 26 Ms. Cole’s affidavit (Doc. 14-1; Doc. 16-4), the filing fee payment confirmation sent on 27 January 24, 2024 (Doc. 14-2), the Civil Cover Sheet dated January 24, 2024 (Doc. 16-1), 28 and metadata information for Plaintiff’s Civil Cover Sheet and Plaintiff’s Complaint 1 dated January 24, 2024 (Docs. 16-2; Doc. 16-3). 2 Defendant argues that equitable tolling is not warranted because Plaintiff was not 3 “without fault” nor the victim of “extraordinary circumstances” beyond his control that 4 would have prevented timely filing. (Doc. 11 at 4-6.) Defendant asserts that the filing 5 issue resulted from “garden variety” error or negligence. (Id. at 5.) Thus, Defendant 6 maintains that Plaintiff fails to satisfy either prong of the equitable tolling standard. (Id. 7 at 4-6.) 8 The Court finds that Plaintiff satisfies both prongs for equitable tolling. First, 9 Plaintiff has shown that he diligently pursued his rights. Ms. Cole acted reasonably by 10 attempting to file the Complaint on January 24, 2024, the day before the statute of 11 limitations expired. Plaintiff’s counsel reasonably believed the Complaint had been 12 successfully filed, as the filing fee was debited on January 24, 2024, and the CM/ECF 13 system did not indicate a filing error. Upon learning of the issue on January 26, 2024, 14 Ms. Cole promptly corrected the problem by uploading the Complaint to the existing 15 case. These actions reflect diligent efforts to comply with the limitations period. 16 The Court further finds that the failure to upload the Complaint, whether due to 17 Ms. Cole’s actions or a CM/ECF system malfunction, constitutes an extraordinary 18 circumstance beyond Plaintiff’s control. In this unique situation, Plaintiff reasonably 19 relied on the CM/ECF system’s confirmation of the filing fee payment as evidence that 20 the filing was completed. The unexpected filing failure, coupled with the lack of an 21 immediate error notification, is a circumstance that “stood in the way” of timely filing. 22 Based on the preceding, the Court finds that Plaintiff is entitled to equitable 23 tolling. Accordingly, the Court will extend the filing deadline by one day and consider 24 Plaintiff’s Complaint timely. Defendant’s Motion to Dismiss (Doc. 11) will be denied. 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS ORDERED that Defendant United States of America’s Motion to Dismiss (Doc. 11) is denied. 3 Dated this 5th day of December, 2024. 4 5 rhe baer, 7 a) Z Honorable Rostsiary □□□□□□□ 8 United States District □□□□□ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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