Ediagbonya v. Mnuchin et al

Filing 48

OPINION & ORDER re: 31 MOTION for Summary Judgment filed by United States. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED, and Plaintiff's Complaint is DISMISSED. The Clerk's Office is respectfully directed to terminate the motion at Document 31 and close the case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/23/2020) (rro) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
PATRICK EDIAGBONYA,
:
:
Plaintiff,
:
:
- against :
:
UNITED STATES OF AMERICA,
:
:
Defendant. :
:
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9/23/2020

18-CV-3882 (VSB)
OPINION & ORDER

Appearances:
Nadi Ganesan Viswanathan
Viswanathan Asia-Pacific International Law Practice GR.
New York, New York
Counsel for Plaintiff
Danielle J. Levine
United States Attorney’s Office for the Southern District of New York
New York, New York
Counsel for Defendant.
VERNON S. BRODERICK, United States District Judge:
Plaintiff Patrick Ediagbonya (“Plaintiff” or “Ediagbonya”) brings this action pursuant to
the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671, et seq. (“FTCA”), seeking to
recover for alleged injuries stemming from a motor vehicle accident on August 12, 2015,
involving an employee of the Internal Revenue Service (“IRS”). Because Plaintiff has failed to
show that Plaintiff’s counsel acted diligently in his attempt to timely file Plaintiff’s Complaint,
equitable tolling cannot be invoked, and Defendant’s motion for summary judgment dismissing
Plaintiff’s Complaint as untimely is GRANTED.

Background
On August 12, 2015, Plaintiff was involved in a motor vehicle accident with an employee
of the IRS. (Pl. Fact St.1 ¶ 1.) Plaintiff sustained injuries to his shoulder and ankle, and
continues to suffer from neck, shoulder, lower back, hip, and ankle pain. (Compl.2 ¶¶ 14–18.)
Plaintiff filed a claim with the Claims Management Office of the IRS, which was denied. (Pl.
Fact St. ¶¶ 2, 3.) The IRS Claims Office notified Plaintiff by letter dated October 30, 2017, that
if he intended to appeal the denial of his claim, he must file suit in an appropriate Federal District
Court no later than six months from the date of the letter—on or before April 30, 2018. (Id. ¶¶
4–6; Levine Decl.3 Exh. 6, Doc. 33-6.) Plaintiff filed this action on May 1, 2018, at 12:05 a.m.
(Viswanathan Decl.4 Exh. 1.)
Procedural History
Plaintiff commenced this action by filing a Complaint on May 1, 2018, (Doc. 1), which
was re-filed on May 2, 2018 (Doc. 5), as the initial filing was deemed deficient by the Clerk’s
Office.5 On the same day he initially attempted to file the Complaint, Plaintiff also filed a
motion seeking relief nunc pro tunc, claiming that he made the requisite efforts to file the case on
or before April 30, 2018, but was unable to do so due to a “computer technical-hang of the

1

“Pl. Fact St.” refers to Plaintiff’s Response Rule 56.1 Statement and Plaintiff’s Rule 56.1 Statement. (Doc. 40.)

2

“Compl.” refers to Plaintiff’s Complaint, filed on May 1, 2018, (Doc. 1), and re-filed on May 2, 2018 (Doc. 5), as
the initial filing was deemed deficient by the Clerk’s Office.
3
“Levine Decl.” refers to the Declaration of Danielle J. Levine in support of Defendant’s motion for summary
judgment. (Doc. 33.)
4

“Viswanathan Decl.” refers to the Declaration of [Ganesh] Nadi Viswanathan filed in opposition to Defendant’s
motion for summary judgment. (Doc. 37.)
5

Plaintiff’s Complaint is deemed as having been filed on May 1, 2018. See Johnson v. Colvin, No. 15–cv–3865
(KBF), 2015 WL 7078648, *2–*3 (S.D.N.Y. Nov. 13, 2015) (finding that a complaint which was “not docketed
solely due to a technical issue with the signature’s format,” is considered as having been filed on the date initially
received); Fed. R. Civ. P. 5 (“The clerk must not refuse to file a paper solely because it is not in the form prescribed
by these rules or by a local rule or practice.”).

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Court’s website at around midnight.” (Doc. 4 ¶ 7.)
On October 25, 2018, Defendants Steven Mnuchin, David Kautter and Laina
Marcandetti, filed an Answer to the Complaint, and a memorandum of law in opposition to the
motion for relief nunc pro tunc. (Docs. 18, 19.) Plaintiff filed his reply in further support of his
motion on October 30, 2018. (Doc. 20.) On November 5, 2018, I issued an order allowing
Plaintiff to amend the Complaint and substitute the United States as Defendant in place of
Defendants Steven Mnuchin, David Kautter and Laina Marcandetti. (Doc. 21.) I also explained
that “[b]ecause the limitations period set forth in § 2401(b) is non-jurisdictional, this action may
proceed if Plaintiff succeeds in establishing that he is entitled to equitable tolling.” (Id.)
On December 3, 2018, I entered a case management plan and scheduling order, which set
a schedule for summary judgment motions, (Doc. 25,) and that schedule was revised on February
8, 2019, (Doc. 30). Defendant filed its motion for summary judgment on March 7, 2019,
accompanied by a memorandum of law, a declaration with exhibits, and a rule 56.1 statement,
(Docs. 31–34). Plaintiff filed a memorandum of law in opposition accompanied by a rule 56.1
statement and a declaration with exhibits, on April 18, 2019, (Docs. 37, 39, 40,) and Defendant
filed a reply memorandum of law accompanied by a response to Plaintiff’s rule 56.1 statement
and a declaration on April 30, 2019, (Docs. 41–43).
Legal Standard
Summary judgment is appropriate when “the parties’ submissions show that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002); see also Fed. R. Civ. P.
56(a). “[T]he dispute about a material fact is ‘genuine[]’ . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit
under the governing law,” and “[f]actual disputes that are irrelevant or unnecessary will not be
counted.” Id.
On a motion for summary judgment, the moving party bears the initial burden of
establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the
nonmoving party to “set forth specific facts showing that there is a genuine issue for trial,” id. at
256, and to present such evidence that would allow a jury to find in his favor, see Graham v.
Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). To defeat a summary judgment motion, the
nonmoving party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials . . . .” Fed. R. Civ. P. 56(c)(1). In the event that “a party fails . . . to properly address
another party’s assertion of fact as required by Rule 56(c), the court may,” among other things,
“consider the fact undisputed for purposes of the motion” or “grant summary judgment if the
motion and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e)(2), (3).
Additionally, in considering a summary judgment motion, a court must “view the
evidence in the light most favorable to the non-moving party and draw all reasonable inferences
in its favor, and may grant summary judgment only when no reasonable trier of fact could find in
favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation and

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internal quotation marks omitted); see also Matsushita, 475 U.S. at 587. “[I]f there is any
evidence in the record that could reasonably support a jury’s verdict for the non-moving party,”
summary judgment must be denied. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286
(2d Cir. 2002).
Discussion
In my Order of November 5, 2018, I explained to the parties that “[b]ecause the
limitations period set forth in § 2401(b) is non-jurisdictional, this action may proceed if Plaintiff
succeeds in establishing that he is entitled to equitable tolling.” (Doc. 21 (citing United States v.
Wong, 575 U.S. 402, 418–20 (2015)).) “To qualify for [equitable tolling,] the [plaintiff] must
establish that extraordinary circumstances prevented him from filing his [claim] on time, and that
he acted with reasonable diligence throughout the period he seeks to toll.” Phillips v.
Generations Family Health Ctr., 723 F.3d 144, 150 (2d Cir. 2013) (quoting Doe v. Menefee, 391
F.3d 147, 159 (2d Cir. 2004)). “The plaintiff must also show that his lawyers were reasonably
diligent in determining ‘the appropriate parties to sue, and what, if any, restrictions on the time
and forum for bringing such a claim might exist.’” Id. (quoting A.O.C. ex rel. Castillo v. United
States, 656 F.3d 135, 145 (2d Cir. 2011)). “One who fails to act diligently cannot invoke
equitable principles to excuse [a] lack of diligence.” Ko v. JP Morgan Chase Bank, N.A., 730 F.
App’x 62, 64 (2d Cir. 2018) (quoting Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151
(1984)).
Here, Plaintiff has not demonstrated that he acted diligently during the relevant time
period, or that the circumstances are so extraordinary as to warrant equitable tolling. Although
he had six months to file the Complaint in this action, Plaintiff’s counsel did not attempt to file
the Complaint until the evening of the very last day of the limitations period—April 30, 2018—

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at which time he purportedly encountered “technical failure” on the ECF system and could not
file the Complaint until 12:05 a.m., on May 1, 2018. 6 (Pl. Mem.7 5.) A court in this District has
found that technical problems with the ECF system, when plaintiff waited until the last day to
file a complaint, is not sufficient to warrant the application of equitable tolling. Yesh Diamonds,
Inc. v. Yashaya, 2010 WL 3851993, at *3 (S.D.N.Y. Sept. 27, 2010) (finding plaintiff’s counsel
showed a lack of lack of due diligence by waiting “until the eleventh hour to attempt his filing,”
and that his inability to file the Complaint due to problems encountered on ECF was insufficient
to justify equitable tolling); Temburri v. Berryhill, No. 16-CV-5784 (PKC), 2018 WL 1175141,
*2 (E.D.N.Y. Mar. 5, 2018) (denying to apply equitable tolling when Plaintiff’s counsel’s
computer crashed and froze, causing Plaintiff’s counsel to file his motion 50 minutes after the
deadline) (listing cases).
Plaintiff’s counsel also does not explain why the Complaint was not filed at any point
during the six-month period from the date of the IRS’s letter, and merely states he “took all
diligent steps as were required to file this Complaint on or before April 30, 2018.” (Pl. Mem. 5;
see also Plaintiff’s Motion nunc pro tunc, Doc. 4 ¶ 7 (“Plaintiff . . . made all the efforts to file the
suit in this action on April 30, 2018. However, because of a computer technical-hang of the
Court’s website at around midnight, the Complaint could only be filed five minutes past the

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I note that the nature of the technical difficulties is not clear from and has not been explained in Plaintiff’s filings.
Based on Plaintiff’s memoranda of law he appears to claim that the technical difficulty was the fault of the ECF
system, (Pl. Mem. 5; see also Plaintiff’s Motion nunc pro tunc, Doc. 4 ¶ 7); however, after being confronted by
Defendant’s opposition papers, Plaintiff altered the basis for the alleged technical difficulty in response to
Defendant’s rule 56.1 fact statement claiming that his attorney’s computer froze, and it was his attorney’s computer
failure, not a failure of the ECF system, that caused the untimely filing, (Pl. Fact. St. ¶ 15). Plaintiff’s shifting
factual assertions were no doubt attributable to Defendant’s submission of a letter from the Clerk of Court dated
January 11, 2019, which states that the ECF system was operational on April 30, 2018, “without interruption.”
(Levine Decl. Exh. 7.) Based upon this letter, Plaintiff admits that the ECF system was operational in his response
to Defendant’s Rule 56.1 fact statement. (Pl. Fact St. ¶ 16.) In any event, neither explanation is sufficient to create
an issue of fact concerning whether or not counsel acted diligently; he clearly did not.
7

“Pl. Mem.” refers to Plaintiff’s memorandum of law in opposition to Defendant’s summary judgment motion.
(Doc. 39.)

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midnight, i.e. at 0.05 a.m.”).) This conclusory statement is insufficient to create an issue of fact
on summary judgment. Anderson, 477 U.S. at 248 (“a party opposing a properly supported
motion for summary judgment . . . must set forth specific facts showing that there is a genuine
issue for trial.” (internal quotation marks omitted)).
Indeed, the evidence in the record demonstrates an absence of diligence. Attorney
Viswanathan had from as early as February 2018, to either help Plaintiff’s initial counsel,
Kwadwo A. Opoku, gain admission to the Southern District of New York to file the Complaint,
or to file the Complaint himself. (Levine Decl. Exh. 4, 6–8; Pl. Fact St. ¶ 9). Opoku never
applied for admission to the Southern District. (Pl. Fact. St. ¶ 10.) In mid-April, Opoku asked
Viswanathan to file the Complaint, roughly two weeks before the filing deadline. (Levine Decl.
Exh. 4, 6–8; Pl. Fact St. ¶ 11.) Rather than immediately filing the Complaint, Viswanathan
instead waited until “late in the evening on April 30th, 2018” to file the Complaint. (Levine
Decl. Exh. 5, at 7.) Plaintiff’s counsel failed to explain why he did not file the Complaint within
the two weeks before the filing deadline. Therefore, he failed to act diligently, and cannot
invoke equitable tolling. See Phillips, 723 F.3d at 150. Accordingly, Plaintiff’s Complaint was
not timely filed, counsel did not act diligently, and the Complaint is dismissed.

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Conclusion
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED,
and Plaintiff’s Complaint is DISMISSED.
The Clerk’s Office is respectfully directed to terminate the motion at Document 31 and
close the case.
SO ORDERED.
Dated: September 23, 2020
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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