SOUMPHONPONPHAKDY v. WALILKO et al
LETTER OPINION. Signed by Judge Susan D. Wigenton on 2/17/2021. (bt, )
Case 2:19-cv-16830-SDW-LDW Document 28 Filed 02/17/21 Page 1 of 3 PageID: 166
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARTIN LUTHER KING COURTHOUSE
50 WALNUT ST.
NEWARK, NJ 07101
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
February 17, 2021
Mr. Khongsana Soumphonponphakdy
P.O. Box 67751
Rochester, New York 14617
James L. Pantages, Esq.
Faust Goetz Schencker & Blee
570 W. Mount Pleasant Avenue
Livingston, NJ 07039
Counsel for Defendant Geico 1
Karen E. Heller, Esq.
Pomeroy, Heller & Ley, LLC
98 Floral Avenue
New Providence, NJ 07974
Counsel for Defendant Geico
LETTER OPINION FILED WITH THE CLERK OF THE COURT
Soumphonponphakdy v. Geico et al., No. 19-16830 (SDW) (LDW)
Before this Court is Defendants Geico and Mary J. Walilko’s (together, “Defendants”)
Motions to Dismiss pro se Plaintiff Khongsana Soumphonponphakdy’s (“Plaintiff”) Complaint
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (D.E. 19; D.E. 25.) For the reasons
discussed below, the Court grants Defendants’ Motions.
This matter involves a motor vehicle accident between Plaintiff and Ms. Walilko that
occurred on February 14, 2017, in which Plaintiff seeks to recover damages for his alleged injuries.
While the docket reflects that Mr. Pantages is an attorney for defendant Geico, he submitted a motion to dismiss on
behalf of defendant Mary J. Walilko. (D.E. 25.)
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(D.E. 17 at 4–5.) 2 This Court initially found that Plaintiff’s complaint was barred by the two-year
statute of limitations applicable to personal injury actions under New Jersey law. (D.E. 2 at 2
(citing N.J. Stat. Ann. 2A:14-2).) After remand to this Court (see D.E. 13), 3 Plaintiff refiled his
initial complaint on July 16, 2020. (Compare D.E. 1, with D.E. 17.) Motions to dismiss the refiled
complaint were submitted by Geico on December 3, 2020 (D.E. 19), and Ms. Walilko on December
30, 2020 (D.E. 25). 4 By letter dated December 4, 2020, Plaintiff requested to toll the statute of
limitations. (D.E. 24.) This Court is also in receipt of correspondence from Plaintiff dated
December 15, 2020. (D.E. 27.) Although Plaintiff’s cover letter mentions a request for leave to
amend the pleadings (see D.E. 27-1), this Court construes the entire submission as an opposition
to defendant Geico’s motion to dismiss. (See D.E. 27-1; D.E. 27-2.) Defendant Geico filed a reply
on December 30, 2020. (D.E. 26.) Plaintiff has not opposed Ms. Walilko’s motion to dismiss.
Plaintiff’s initial complaint was properly dismissed as time-barred under New Jersey’s
statute of limitations for personal injury actions. See N.J. Stat. Ann. 2A:14-2 (providing that
“[e]very action at law for an injury to the person caused by the wrongful act, neglect or default of
any person within this State shall be commenced within two years next after the cause of any such
action shall have accrued”). Under New Jersey law, “equitable tolling” is permissible where a
plaintiff has been “induced or tricked by his adversary’s misconduct into allowing the filing
deadline to pass,” or where a plaintiff has been prevented from asserting his rights “in some
extraordinary way,” or has “timely asserted his rights mistakenly by either defective pleading or
in the wrong forum.” Freeman v. State, 788 A.2d 867, 880 (N.J. App. Div. 2002) (internal citations
omitted), cert. denied, 796 A.2d 895 (N.J. 2002); see Rowell v. Stecker, 698 F. App’x 693, 695 (3d
Cir. 2017). “[A]bsent a showing of intentional inducement or trickery by a defendant, the doctrine
of equitable tolling should be applied sparingly and only in the rare situation where it is demanded
by sound legal principles as well as the interests of justice.” Freeman, 788 A.2d at 880.
Here, the initial complaint was filed on August 15, 2019, more than two years from
February 14, 2017, the date of Plaintiff’s alleged injury. (D.E. 1; D.E. 17.) Plaintiff claims that
since February 14, 2017, he has sustained permanent injuries. (D.E. 17 at 5.) Although Plaintiff
filed a complaint in the Superior Court of New Jersey, Law Division, Morris County during the
limitations period, that action was dismissed before Plaintiff filed the instant federal action on
August 15, 2019. (Compare D.E. 1, with D.E. 19-3 (December 21, 2018 order dismissing the state
court action against defendant Geico with prejudice because Geico was not in privity of contract
with Plaintiff and no cognizable claim was asserted as to Geico), and D.E. 25-3 (March 15, 2019
order dismissing the state court action against Ms. Walilko without prejudice for Plaintiff’s failure
All page references to Docket Entry Number 17 refer to the CM/ECF pagination generated in the upper right-hand
The Third Circuit found that tolling of the limitations period might be warranted based on Plaintiff’s related state
court action. (D.E. 13.)
The Clerk of the Court filed a Notice of Call for Dismissal pursuant to Rule 4(m) on December 4, 2020. (D.E. 20.)
This Court subsequently dismissed the action as to Ms. Walilko on December 18, 2020, for Plaintiff’s failure to
effectuate service. (D.E. 21.) However, thereafter, Plaintiff electronically filed proof of service as to Ms. Walilko
which was purportedly executed on December 1, 2020. (D.E. 22 at 1.)
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to submit discovery, refusal to sign medical authorization forms, and failure to provide a necessary
certification), and D.E. 25-4 (August 2, 2019 order denying Plaintiff’s motion to transfer and
motion to reinstate without prejudice).) 5 Notably, it appears that Plaintiff declined an opportunity
to reinstate the case with a proper motion and needed documentation within 30 days of the state
court’s August 2, 2019 order. (D.E. 25-4 at 3.)
Plaintiff’s December 2020 correspondence does not proffer a single basis in support of
tolling based on the state court action, notwithstanding the benefit of the Third Circuit’s decision
on appeal. (See generally D.E. 24; D.E. 27.) Plaintiff has failed to establish extraordinary
circumstances to justify equitable tolling under New Jersey law. See Speth v. Goode, No. 95-0264,
2011 WL 221664, at *7, n.7 (D.N.J. Jan. 20, 2011) (noting that the party seeking equitable tolling
has the burden to establish its applicability); see also Randolph v. Sherrer, No. 08-069, 2008 WL
918500, at *5 (D.N.J. Apr. 1, 2008) (holding that plaintiff’s pursuit of “his claim in state court
first, where it was dismissed” was not “a basis for granting equitable tolling . . . . simply because
he d[id] not like the result of his action in state court”). Moreover, because Plaintiff’s personal
injury claim could have been brought in either state or federal court, this is not a case where the
claimant initially lodged a claim in the wrong forum. See, e.g., Randolph, 2008 WL 918500, at
*5 (stating that a timely but dismissed state court action does not make the state court the wrong
forum); see Kaminski v. Twp. of Toms River, 595 F. App’x 122, 127 (3d Cir. 2014) (noting that
plaintiffs did not argue that they “filed in the wrong forum or with a defective pleading”). Lastly,
a pro se plaintiff’s ignorance of the law is an insufficient basis to relax the applicable statute of
limitations. See Randolph, 2008 WL 918500, at *5 (rejecting plaintiff’s “best” argument that his
delayed federal filing resulted from ignorance of the law) (citing Fisher v. Johnson, 174 F.3d 710,
714 (5th Cir.1999), cert. denied, 531 U.S. 1164 (2001)); accord Rowell, 698 F. App’x at 696 (citing
D.D. v. Univ. of Med. & Dentistry of N.J., 61 A.3d 906, 921 (N.J. 2013)).
Accordingly, this Court finds that equitable tolling is unwarranted, and Plaintiff’s action is
For the reasons stated above, Defendants’ Motions to Dismiss Plaintiff’s Complaint are
GRANTED. Plaintiff’s Complaint is DISMISSED. An appropriate order follows.
___/s/ Susan D. Wigenton_____
SUSAN D. WIGENTON, U.S.D.J.
Leda D. Wettre, U.S.M.J.
See Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (“In evaluating a motion to dismiss, we may
consider documents that are . . . subject to judicial notice, matters of public record, orders, and items appearing in the
record of the case.”) (citations and internal quotation marks omitted).
Furthermore, as suggested by Geico (see D.E. 19-1 at 3), the doctrines of res judicata and collateral estoppel likely
preclude this Court from re-litigating matters that were previously decided by the state court. See Queen v.
Cedarbrook Condo. Ass’n, Inc., No. 14-6393, 2015 WL 790592, at *3 (D.N.J. Feb. 24, 2015).
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