McDonough v. El-Khal et al

Filing 32

ORDER signed by Judge Garland E. Burrell, Jr. on 7/15/15 ORDERING that Defendant's DISMISSAL MOTION 23 is GRANTED; Plaintiff's Action is DISMISSED with prejudice, and judgment shall be entered in favor of the Defendant. CASE CLOSED. (Mena-Sanchez, L)

1
2
3
4

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

6
7

Linda McDonough,

8

2:14-cv-01252-GEB-CMK

Plaintiff,

9
10

No.

v.

ORDER GRANTING DEFENDANT’S
DISMISSAL MOTION

United States of America,

11

Defendant.

12
Defendant

13

seeks

dismissal

with

prejudice

of

this

14

action, arguing it barred by 28 U.S.C. § 2401(b) of the Federal

15

Tort Claims Act because Plaintiff failed to commence her lawsuit

16

within six-months of the denial of her administrative tort claim,

17

as required by 28 U.S.C. § 2401(b). This statute prescribes: “A

18

tort claim against the United States shall be forever barred . .

19

. unless action is begun within six months after the date of

20

mailing, by certified or registered mail, of notice of final

21

denial of the claim by the agency to which it was presented.” 28

22

U.S.C. § 2401(b).

23

Plaintiff’s prior complaint was dismissed under this

24

statute but Plaintiff was granted leave to amend in light of the

25

Ninth Circuit’s en banc following holding in Kwai Fun Wong v.

26

Beebe, 732 F.3d 1030, 1033, 1047 (9th Cir. 2013) (en banc): Ҥ

27

2401(b) is a nonjurisdictional

28

to

.

.

claim-processing

. equitable tolling . . . .”
1

rule

subject

1

Subsequently,

Plaintiff

filed

the

amended

complaint

2

involved with the motion sub judice, in which Plaintiff includes

3

the following allegations concerning equitable tolling:

4

On or about April 7, 2013, [P]laintiff’s
counsel
received
[a]
letter
from
the
Department of Health & Human Services denying
[P]laintiff’s [administrative tort] claim.
Plaintiff’s counsel interpreted [the FTCA] to
allow [Plaintiff] to file an action within
two
years
of
the
denial
of
[her
administrative tort] claim . . . . Therefore,
based on this advice from her legal counsel,
[P]laintiff filed this action after six
months from the denial letter. [Further,
Plaintiff] was unaware of how much time she
had to file the lawsuit . . . [and]
reasonably relied upon the legal advice of
her counsel. As such, [P]laintiff took all
reasonable steps on her part to timely file
this
action.
Since
[P]laintiff
acted
diligently, advised her counsel to timely
file
the
action,
and
relied
upon
her
attorney’s
advice,
she
is
entitled
to
equitable
tolling
of
the
statute
of
limitation.

5
6
7
8
9
10
11
12
13
14
15
16

(FAC ¶¶ 5-6.)

17

Defendant argues “negligence by one’s attorney is not

18

enough to entitle a party to equitable tolling,” and “all that

19

Plaintiff claims here [is] a simple misreading of the statute of

20

limitations [and] this is insufficient for equitable tolling.”

21

(Mot.

22

attorney’s

23

variety” error that simply “leads a lawyer to miss a filing

24

deadline, [but it] does not warrant equitable tolling.” (Mot.

25

2:19-20)(citing

26

omitted).)

2:19-20).

Defendant

mistake

about

Wong,

732

further

the

filing

F.3d

at

contends
deadline

1052

is

(internal

Plaintiff’s
a

“garden

quotations

27

Plaintiff rejoins that the Supreme Court’s holding in

28

Holland v. Florida, 560 U.S. 631 (2010), supports her equitable
2

1

tolling

2

tolling in the circumstances involving an “attorney’s failure to

3

file a petition on time despite the client’s direction that he do

4

so[;]

5

deadline[;] and . . . failure to inform the client in a timely

6

manner about the status of his case . . . ” (Opp’n to Def.’s Mot.

7

3:4-8, ECF No. 27.)

position,

.

.

8
9

.

since

failure

Holland

to

v.

properly

Florida

applied

research

the

equitable

filing

date

“[A] party is entitled to equitable tolling only if
[she]

shows

(1)

that

[she]

has

been

pursuing

[her]

rights

10

diligently, and (2) that some extraordinary circumstance stood in

11

[her] way and prevented timely filing.” Holland v. Florida, 560

12

U.S.

13

omitted). The Supreme court states in Holland v. Florida: “[A]

14

garden variety claim of excusable neglect, . . . such as a simple

15

miscalculation that leads a lawyer to miss a filing deadline . .

16

. does not warrant equitable tolling.” Id. at 651-52 (internal

17

quotation

18

attorney’s simple misunderstanding of the filing deadline is what

19

is involved in this action, this mistake has not been shown to

20

constitute an extraordinary circumstance justifying an equitable

21

solution for the untimely filing problem.

631,

22

649

(2010)

marks

and

Therefore,

23

prejudice,

24

Dated:

citations

quotation

judgment

shall

July 15, 2015

26
27
28
3

marks

omitted).

Plaintiff’s

Defendant.

25

and

(internal

action
be

and

Since

is

entered

citations

Plaintiff’s

dismissed
in

with

favor

the

of