Carr v. U.S. Bank National Association

Filing 38

ORDER by Hon. Vince Chhabria granting 19 Motion to Dismiss. (vclc1S, COURT STAFF) (Filed on 6/9/2016)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

ANITA B. CARR,

Case No. 16-cv-01690-VC

Plaintiff,
ORDER GRANTING MOTION TO
DISMISS

v.
U.S. BANK NATIONAL ASSOCIATION
et al.,

Re: Dkt. No. 19

Defendants.

Plaintiff Anita B. Carr, appearing in pro se, brought this suit in Alameda County Superior
Court against defendant U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage
Acquisition Trust 2006-NC1, Asset Backed Pass-Through Certificates, Series 2006 ("U.S.
Bank"), and unnamed Doe defendants, asserting fourteen causes of action relating to her 2006
home loan and the subsequent foreclosure of her home in 2008. U.S. Bank timely removed the
action, and now moves to dismiss Carr's complaint. U.S. Bank argues, among other things, that
all of Carr's claims are time-barred. Having considered U.S. Bank's briefing on the motion to
dismiss, and Carr's brief in opposition (though it was untimely filed more than a week after it
was due), the Court grants the motion to dismiss with prejudice.
To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a complaint must allege
sufficient facts, taken as true, to state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] district court may
grant a 12(b)(6) motion to dismiss on statute of limitations grounds 'only if the assertions of the
complaint, read with the required liberality, would not permit the plaintiff to prove that the

statute was tolled.'" Morales v. City of L.A., 214 F.3d 1151, 1153 (9th Cir. 2000) (quoting
Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)).
The most recent of Carr's claims accrued, at latest, when the deed was recorded after the
foreclosure sale on October 24, 2008. The longest applicable statute of limitations in this case is
four years. Carr did not file this suit until February 29, 2016. U.S. Bank therefore argues that
Carr's claims are all long time-barred, and that, even accepting all of her factual allegations as
true and drawing all reasonable inferences in her favor, the allegations in the complaint would
not permit Carr to prove the statutes were tolled.
Carr's complaint conclusorily asserts that all of the applicable statutes of limitations were
tolled by U.S. Bank's concealment of unidentified facts, which allegedly rendered Carr unable to
discover its wrongdoing earlier. It is true that under the "delayed discovery rule," which applies
both to federal and to California causes of action, a statute of limitations does not begin to run
until the plaintiff knows or reasonably should have known that she has been injured. See, e.g.,
Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 940 (9th Cir. 2009) (quoting NormanBloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir. 1998)); see also, e.g., Fox v.
Ethicon Endo-Surgery, Inc., 110 P.3d 914, 921 (Cal. 2005). But "to rely on the discovery rule
for delayed accrual of a cause of action, '[a] plaintiff whose complaint shows on its face that his
claim would be barred without the benefit of the discovery rule must specifically plead facts to
show (1) the time and manner of discovery and (2) the inability to have made earlier discovery
despite reasonable diligence.'" Fox, 110 P.3d at 920-21 (quoting McKelvey v. Boeing N. Am.,
Inc., 86 Cal. Rptr. 2d 645, 651 (Ct. App. 1999) (alteration original)). Carr's bare invocation of
the discovery rule, devoid of any facts supporting its application, is insufficient to survive a
motion to dismiss. See id.; see also, e.g., Perez v. Wells Fargo Bank, N.A., No. C-11-02279-JCS,
2011 WL 3809808, at *14 (N.D. Cal. Aug. 29, 2011).
Normally, Carr would be given leave to amend her complaint to allege facts supporting
the applicability of the delayed discovery rule to her case. See, e.g., Perez, 2011 WL 3809808 at
*22; Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (citing

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)
(per curiam)). But Carr's complaint elsewhere indicates that she learned of the relevant facts that
form the basis of her claims long ago, in 2006 and 2008, or at latest, in early 2009. Indeed,
Carr's complaint discloses that she sued U.S. Bank in Alameda County Superior Court in March
2009, asserting many virtually identical claims arising from her 2006 home loan and the 2008
foreclosure sale, including causes of action for fraud, quiet title, wrongful foreclosure, slander of
title, the federal Truth in Lending Act, California's Unfair Competition Law, California's
Rosenthal Fair Debt Collection Practices Act, and civil conspiracy in that earlier state court
action.1 It therefore is clear that leave to amend to invoke the discovery rule would be futile:
Carr cannot plausibly allege that she was unable to discover her claims earlier, given that she
both knew of and brought closely related and/or identical claims for relief arising out of the same
set of facts in 2009. See Cervantes, 656 F.3d 1034, 1041 (9th Cir. 2011) (citing Cook, Perkiss &
Liehe, Inc., 911 F.2d at 247).
Carr alternatively argues in her opposition that the statutes of limitation were tolled while
her prior state court action was pending, i.e. between March 2009 and April 2014. It is true that
the filing of a lawsuit can toll the running of a statute of limitations. But "if [a] suit is dismissed
without prejudice, meaning that it can be refiled, then the tolling effect of the filing of the suit is
wiped out and the statute of limitations is deemed to have continued running from whenever the
cause of action accrued, without interruption by that filing." Elmore v. Henderson, 227 F.3d
1009, 1011 (7th Cir. 2000). As Carr admits in her opposition and the state court record reflects,
Carr voluntarily dismissed her earlier lawsuit without prejudice in April 2014.2 Because "a suit
dismissed without prejudice is treated for statute of limitations purposes as if it had never been
filed," id., Carr's claims were therefore not tolled by her prior state court action. See also, e.g.,

1

The Court may take judicial notice of and consider on a Rule 12(b)(6) motion Carr's complaint
in the 2009 state court action, which is a matter of public record. See, e.g., United States v.
Ritchie, 342 F.3d 903, 909 (9th Cir. 2003).
2
The Court may also take judicial notice of and consider Carr's voluntary dismissal of the earlier
state court action. See, e.g., Ritchie, 342 F.3d at 909.

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Wood v. Elling Corp., 572 P.2d 755, 758 (Cal. 1977) (the same rule applies in California).
To the extent Carr argues in the alternative that she is entitled to equitable tolling, it is
clear that she is not. "Equitable tolling of the statute of limitations is a defense to all federal
statutes of limitations, even those expressly contained within a given cause of action, unless
tolling would be inconsistent with the legislative purpose." Ellis v. City of San Diego, 176 F.3d
1183, 1189 n.3 (9th Cir. 1999) (citing Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 557
(1974)). For a federal cause of action, "a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)
(citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). And in California,
"application of the doctrine of equitable tolling requires timely notice, and lack of prejudice, to
the defendant, and reasonable and good faith conduct on the part of the plaintiff." Addison v.
State, 578 P.2d 941, 943-44 (Cal. 1978); see also Wood, 572 P.2d at 758, 758 n.4; Aguilera v.
Heiman, 95 Cal. Rptr. 3d 18, 25 (Ct. App. 2009). In California, equitable tolling is generally
available where the plaintiff in good faith files timely suit in the wrong forum, or where the
plaintiff "has several legal remedies and, reasonably and in good faith, pursues one" and not the
others, and where the other elements are also met. Addison, 578 P.2d at 943 (quoting Elkins v.
Derby, 525 P.2d 81, 84 (Cal. 1974). It is not available in cases like this one, where the plaintiff
timely filed her claims in state court, voluntarily dismissed them without prejudice years later,
and years later still, attempts to reassert them in the same forum: "If a timely action dismissed
without prejudice were, without more, to have the effect of tolling the statute of limitations
during the pendency of that action, an indefinite extension of the statutory period through
successive filings and dismissals might well result." Wood, 572 P.2d at 758.
Carr's complaint contains no allegations that would support equitably tolling either her
federal or her state law claims. While Carr argues in her opposition that she had to dismiss her
prior state court action voluntarily in April 2014 because of health problems that necessitated
surgery on her hand and a lengthy recovery that summer, which prevented her from pursuing her

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claims, the Court notes that the District of Delaware found (and the Third Circuit affirmed) that
Carr's assertions of medical incapacity were undermined in part by her ability to file lengthy
briefs in that forum in the same time period. See In re New Century TRS Holdings Inc., 526 B.R.
562, 566 (D. Del. 2014); see also In re New Century TRS Holdings, Inc., 619 F. App'x 46, 48 (3d
Cir. 2015).3 Moreover, even assuming Carr had been completely disabled by her medical
condition for significant periods of time between February 2014 and November 2014, as she
asserted in the Delaware case, that would not excuse her failure to refile her claims in this case
until February 29, 2016, more than fifteen months after her medical problems ceased being an
alleged impediment to her diligent prosecution of her claims.
For the forgoing reasons, it is clear that amendment would be futile. Carr's complaint is
therefore dismissed with prejudice and without leave to amend. Cervantes, 656 F.3d at 1041
(citing Cook, Perkiss & Liehe, Inc., 911 F.2d at 247).
IT IS SO ORDERED.
Dated: June 9, 2016
______________________________________
VINCE CHHABRIA
United States District Judge

3

As with the state court records, the Court may take judicial notice of and consider the content
of these public records on this motion to dismiss. See, e.g., Ritchie, 342 F.3d at 909.

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