Tompkins v. Union Pacific Railroad Company
Filing
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ORDER granting 7 Defendant's Motion to Dismiss with leave to amend, signed by Judge John A. Mendez on 10/1/12. Plaintiff's Amended Complaint must be filed within 20 days from the date of this Order. If Plaintiff elects not to file an Amended Complaint, the case will proceed on the original Complaint without the first and second causes of action. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BURLEY D. TOMPKINS,
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2:12-cv-01481 JAM-GGH
Plaintiff,
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No.
v.
UNION PACIFIC RAILROAD
COMPANY,
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
Defendant.
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This matter is before the Court on Defendant Union Pacific
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Railroad Company’s (“Defendant”) Motion to Dismiss the first and
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second causes of action (Doc. #7).
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(“Plaintiff”) opposes the motion (Doc. #9).1
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Plaintiff Burley Tompkins
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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for September 19, 2012.
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I.
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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff filed his complaint (Doc. #1) with this Court on
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June 1, 2012.
Plaintiff alleges seven causes of action pursuant
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to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§
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51–60: (1) negligence in 1998; (2) negligence—deprivation of
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medical care in 1998; (3) negligence in 2011; (4) violation of
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the Federal Safety Appliance Act, 49 U.S.C. §§ 20301–20306; (5)
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violation of the Federal Locomotive Inspection Act, 49 U.S.C. §§
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20701–20703; (6) Violation of Federal Safety Regulation, 49
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C.F.R. § 229.45; and (7) Violation of Federal Safety Regulation,
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49 C.F.R. § 229.13. As noted above, Defendant only challenges
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the first two claims in the instant motion.
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A.
First Cause of Action—Negligence in 1998
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Plaintiff alleges that in or about August through October
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1998, he was working for Defendant at Defendant’s Oroville yard
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near Oroville, California.
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him while he was releasing the handbrakes of an open-top gondola
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car.
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injury.
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B.
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During work, a trespasser startled
As a result, he fell from the railcar and sustained a back
Second Cause of Action—Deprivation of Medical Care in
1998
Plaintiff alleges that he attempted to timely report his
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injury to Defendant, but Defendant’s manager harassed and
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intimidated him by threatening to terminate him if he made an
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on-duty injury claim.
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prevent Plaintiff from timely filing an on-duty injury claim and
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from seeking proper medical treatment until the statute of
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limitations had run.
Defendant intended to discourage and
Defendant also prevented Plaintiff from
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seeking and receiving proper medical treatment from in or about
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August through October 1998 until about April 2010.
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II. OPINION
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A.
Legal Standard
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A party may move to dismiss an action for failure to state
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a claim upon which relief can be granted pursuant to Federal
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Rule of Civil Procedure 12(b)(6).
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dismiss, the court must accept the allegations in the complaint
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as true and draw all reasonable inferences in favor of the
In considering a motion to
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plaintiff.
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overruled on other grounds by Davis v. Scherer, 468 U.S. 183
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(1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).
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are mere “legal conclusions,” however, are not entitled to the
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assumption of truth.
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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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(2007)).
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plead “enough facts to state a claim to relief that is plausible
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on its face.”
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appropriate where the plaintiff fails to state a claim
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supportable by a cognizable legal theory.
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Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
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Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
Assertions that
Ashcroft v. Iqbal, 556 U.S. 662, 678
To survive a motion to dismiss, a plaintiff needs to
Twombly, 550 U.S. at 570.
Dismissal is
Balistreri v.
Upon granting a motion to dismiss for failure to state a
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claim, the court has discretion to allow leave to amend the
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complaint pursuant to Federal Rule of Civil Procedure 15(a).
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“Dismissal with prejudice and without leave to amend is not
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appropriate unless it is clear . . . that the complaint could
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not be saved by amendment.”
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Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Eminence Capital, L.L.C. v. Aspeon,
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B.
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Defendant moves to dismiss Plaintiff’s first and second
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causes of action for failure to plead facts that demonstrate
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Plaintiff has satisfied the statute of limitations and for
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failure to state a claim pursuant to FELA.
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that the injury alleged in Plaintiff’s first and second causes
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of action occurred in 1998 and would be barred by the three-year
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statute of limitations unless an equitable doctrine applies.
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Plaintiff argues that the Defendant should be estopped from
Discussion
Both parties agree
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asserting the statute of limitations as a defense because
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Defendant engaged in improper behavior by threatening him with
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termination if he filed a claim.
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threat of termination is insufficient to estop Defendant from
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asserting the statute of limitations eleven years after the
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limitations period expired.
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Defendant responds that one
FELA provides railroad employees with a private cause of
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action for job-related injuries caused by an employer’s
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negligence.
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FELA claims is three years from the day the cause of action
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accrued.
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employee knows or has reason to know of the injury and its
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cause.
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(C.D. Cal. 1991) (collecting cases).
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45 U.S.C. §§ 51–60.
45 U.S.C. § 56.
The statute of limitations for
The cause of action accrues when an
Frasure v. Union Pac. R. Co., 782 F. Supp. 477, 480
Nonetheless, this limitation period is flexible, and under
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appropriate circumstances, it may be extended beyond three years
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for equitable reasons.
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U.S. 424, 427 (1965); Atkins v. Union Pac. R. Co., 685 F.2d
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1146, 1148 (9th Cir. 1982).
Burnett v. New York Cent. R. Co., 380
The Ninth Circuit recognizes two
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equitable doctrines: (1) equitable tolling and (2) equitable
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estoppel.
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(9th Cir. 1981).
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See Naton v. Bank of California, 649 F.2d 691, 696
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Equitable Tolling
Equitable tolling “may be applied if, despite all due
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diligence, a plaintiff is unable to obtain vital information
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bearing on the existence of his claim.”
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Bell, 202 F.3d 1170, 1178 (9th Cir. 2000).
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Santa Maria v. Pac.
Defendant argues that equitable tolling does not apply.
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Plaintiff does not respond to this argument in his opposition.
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The Court finds that plaintiff has not pleaded facts to show
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that Plaintiff was unable to obtain vital information.
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Accordingly, equitable tolling is not applicable.
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2.
Equitable Estoppel
Equitable estoppel focuses on the defendant’s affirmative
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actions that prevent a plaintiff from filing a suit.
Id. at
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1176 (citing Naton, 649 F.2d at 696).
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equitable estoppel applies, courts consider several factors,
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such as whether the plaintiff actually relied on the defendant’s
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representations, whether such reliance was reasonable, whether
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there is evidence that the defendant’s purpose was improper,
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whether the defendant had actual or constructive knowledge that
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its conduct was deceptive, and whether the purposes of the
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statute of limitations have been satisfied.
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696 (citations omitted).
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plaintiff must plead with particularity the conduct that gives
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rise to the estoppel.
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Cir. 2003).
To determine whether
Naton, 649 F.2d at
To survive a motion to dismiss, the
Guerrero v. Gates, 442 F.3d 697, 706 (9th
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Plaintiff contends that threatening an employee with
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termination to prevent the employee from filing a suit under
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certain circumstances might be grounds for estoppel.
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v. Pittsburgh & L. E. R. Co., New York Cent. Sys., 355 F.2d 443,
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444 (3d Cir. 1966).
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Plaintiff has alleged insufficient facts to satisfy the
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equitable estoppel factors because Plaintiff waited eleven years
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after the expiration of the statute of limitations to file this
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suit even though Plaintiff was not harassed or threatened in
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See Longo
In response, Defendant argues that
those years.
Even if a threat of termination were enough for equitable
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estoppel to apply, it does not apply here because Plaintiff has
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not alleged sufficient facts to estop Defendant from asserting
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the statute of limitations as a defense eleven years after the
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statute of limitations expired.
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to remain dormant for years and does not allege that any
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misrepresentations, misunderstandings, or threats occurred in
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those years, equitable estoppel will not apply.
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Union Pac. R. Co., 621 F.2d 902, 906 (8th Cir. 1980); Holifield
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v. Cities Serv. Tanker Corp., 421 F. Supp. 131, 137 (E.D. La.
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1976) aff’d, 552 F.2d 367 (5th Cir. 1977) (dismissing the
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plaintiff’s claim because the plaintiff allowed it “to lay
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dormant for over four years without any taint of the defendant’s
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alleged misrepresentation or his own misunderstanding concerning
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the injury”).
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portion of the district court’s opinion dismissing the
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plaintiff’s FELA claim on timeliness grounds.
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The plaintiff argued that equitable estoppel should apply
If a plaintiff allows a claim
Fletcher v.
In Fletcher, the Eighth Circuit affirmed that
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621 F.2d at 907.
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because the defendant’s agents delayed his action due to their
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erroneous diagnoses of his injury.
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this argument and affirming the dismissal, the Eighth Circuit
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noted that “the railroad’s misrepresentations will not estop it
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from asserting the statute of limitations where a substantial
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period of time supervened after expiration of the delay caused
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by the railroad.”
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Accordingly, there was no equitable estoppel “simply because
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there was no misrepresentation within three years of filing
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suit.”
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Id. at 906.
In rejecting
Id. (citing Holifield, 421 F. Supp. at 134).
Id. at 907.
Fletcher is instructive in this case because Plaintiff has
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not alleged any facts showing that in the past eleven years,
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Defendant has harassed Plaintiff or intimidated him in order to
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discourage him from filing.
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Defendant’s intent to discourage him from filing continued until
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the statute of limitations had run, which was in 2001.
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Plaintiff also alleges that Defendant prevented Plaintiff from
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seeking and receiving proper medical treatment until about April
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2010.
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facts that show affirmative actions by Defendant, such as
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threats or misrepresentations, that occurred within the past
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eleven years.
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remain dormant.
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after expiration of the delay caused by Defendant, Defendant is
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not estopped from using the statute of limitations as a defense.
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Plaintiff’s first and second causes of action are therefore
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barred by FELA’s three-year statute of limitations unless
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Plaintiff can allege facts to show affirmative actions by
Plaintiff has only alleged that
However, Plaintiff does not allege in particularity any
Therefore, Plaintiff has allowed his claim to
Because a substantial period of time supervened
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Defendant within the past eleven years.
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3.
Failure to State a Claim under 49 C.F.R. § 225.33
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Defendant also argues that Plaintiff’s second cause of
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action should be dismissed for failure to state a claim under 49
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C.F.R. § 225.33.
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this time.
The Court need not address this argument at
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III. ORDER
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For the reasons set forth above, Defendant’s Motion to
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Dismiss is GRANTED WITH LEAVE TO AMEND.
Plaintiff’s Amended
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Complaint must be filed within twenty (20) days from the date of
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this Order.
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Complaint, the case will proceed on the original Complaint
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without the first and second causes of action.
If Plaintiff elects not to file an Amended
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IT IS SO ORDERED.
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Dated: October 1, 2012
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____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE
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