Seastrom v. Department of the Army, San Francisco District, Corps of Engineers et al

Filing 27

ORDER vacating 24 Order of November 26, 2008. Signed by Judge Edward M. Chen on December 9, 2008. (emclc1, COURT STAFF) (Filed on 12/9/2008)

1 2 3 4 5 6 7 8 9 10 v. DEPARTMENT OF THE ARMY, SAN FRANCISCO DISTRICT, CORPS OF ENGINEERS, Defendant. ___________________________________/ JANET B. SEASTROM, Plaintiff, ORDER VACATING ORDER OF NOVEMBER 26, 2008 (Docket No. 24) No. C-08-4108 EMC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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Previously, the Court issued an order converting Defendant the Department of the Army's motion to dismiss into a motion for summary judgment. See Docket No. 24 (order, filed on 11/26/2008). In the order, the Court gave Ms. Seastrom an opportunity to show that there is a genuine dispute of material fact that equitable estoppel should apply, thus tolling the FTCA statute of limitations. The Court held that equitable estoppel might be applicable because the Ninth Circuit had previously indicated that the FTCA statute of limitations is not jurisdictional in nature. See Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996) (stating that "[e]quitable tolling is available in suits against the United States absent evidence that Congress intended the contrary" and that "[n]othing in the FTCA indicates that Congress intended for equitable tolling not to apply"; therefore, "equitable tolling is available for FTCA claims in the appropriate circumstances").

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After the Court issued its order, the Ninth Circuit issued an opinion in Marley v. United States, No. 06-36003, slip. op. (9th Cir. Dec. 8, 2008).1 There, the appellate court specifically overruled Alvarez-Machain and concluded that the FTCA statute of limitations is jurisdictional in nature such that "equitable doctrines that otherwise could excuse a claimant's untimely filing do not apply." Id. at 1 (emphasis added). This Court is bound by the rulings of the Ninth Circuit, and therefore, it must VACATE its prior order of November 26, 2008. The Court now rules as follows. Based on the recent Ninth Circuit opinion, the Court holds that the FTCA statute of limitations is jurisdictional in nature, and therefore equitable estoppel -- or any equitable tolling -- is not possible. The Court shall still convert the Army's motion to dismiss into one for summary judgment to give Ms. Seastrom an opportunity to demonstrate that there is a genuine dispute of material fact that her case is not barred by the statute of limitations. The Court shall give Ms. Seastrom until December 24, 2008, to file with the Court and serve on opposing counsel: (1) additional legal authority to support any argument that her case is not barred by the statute of limitations and (2) any and all evidence to support the same. The Army shall then have until January 7, 2008, to file a reply and any supporting documentation. The matter shall then be deemed submitted, and the Court shall not accept any further submissions from either party, absent leave of the Court and a showing of good cause.

United States District Court

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For the Northern District of California

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IT IS SO ORDERED.

Dated: December 9, 2008 _________________________ EDWARD M. CHEN United States Magistrate Judge

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The Department notified the Court of the decision pursuant to Civil Local Rule 7-3(d).

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1 2 3 4 5 6 7 8 9 10 v. DEPARTMENT OF THE ARMY, SAN FRANCISCO DISTRICT, CORPS OF ENGINEERS, Defendant. ___________________________________/ JANET B. SEASTROM, Plaintiff, CERTIFICATE OF SERVICE No. C-08-4108 EMC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the U.S. District Court, Northern District of California. On the below date, I served a true and correct copy of the attached, by placing said copy/copies in a postage-paid envelope addressed to the person(s) listed below, by depositing said envelope in the U.S. Mail; or by placing said copy/copies into an inter-office delivery receptacle located in the Office of the Clerk. JANET B. SEASTROM, Pro Se 166 Tunstead Avenue #8 San Anselmo, CA 94960 415/453-7284 Dated: December 9, 2008 ALL OTHER COUNSEL SERVED VIA ELECTRONIC FILING ("E-FILING")

RICHARD W. WIEKING, CLERK

By:

/s/ Leni Doyle Deputy Clerk