Marianne Maddalena v. Derrick John Toole, No. 2:2013cv04873 - Document 22 (C.D. Cal. 2013)
Court Description: ORDER GRANTING DEFENDANT TOOLES MOTION TO DISMISS 15 Plaintiffs federal claims are hereby DISMISSED WITH PREJUDICE. Plaintiffs state-law claims are hereby DISMISSED WITHOUT PREJUDICE. The Clerk of the Court shall close this case. by Judge Otis D. Wright, II. (MD JS-6. Case Terminated) (lc) Modified on 10/1/2013 (lc).
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Marianne Maddalena v. Derrick John Toole Doc. 22 O JS6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 MARIANNE MADDALENA v. 19 20 Case No. 2:13-cv-6007-ODW(RZx) Defendant. ORDER GRANTING MOTION TO DISMISS [15], [12] PEGGY ROBINSON, 17 18 Plaintiffs, DERRICK JOHN TOOLE, 15 16 Case No. 2:13-cv-4873-ODW(RZx)-** v. Plaintiff, DERRICK JOHN TOOLE, Defendant. 21 I. 22 INTRODUCTION 23 On September 17, 2013, the Court consolidated the cases of Peggy Robinson v. 24 Derrick John Toole, No. 13-cv-06007-ODW(RZx) (C.D. Cal. filed August 15, 2013) 25 and Marianne Maddalena v. Derrick John Toole, No. 13-cv-04873-ODW(RZx) (C.D. 26 Cal. filed July 5, 2013). 27 Defendant Derrick Toole’s carefully-executed cyberstalking, which spanned the 28 course of at least two years. Toole now moves to dismiss both Plaintiffs’ Complaints (ECF No. 21.) Both Plaintiffs’ claims center around Dockets.Justia.com 1 as time-barred. For the following reasons, the Court GRANTS Toole’s Motion to 2 Dismiss. 1 II. 3 BACKGROUND 4 From October 2009, through at least January 2011, Toole used spyware 5 programs, GPS devices, and other technology to pry into every last detail of Plaintiffs’ 6 lives. Toole commenced his haunting of Plaintiffs’ lives by monitoring his girlfriend 7 Marianne Maddalena’s electronic communications. (Compl. ¶ 9.) Eventually, Toole 8 expanded his cyberstalking to Maddalena’s work life and began electronically 9 monitoring Peggy Robinson, Maddalena’s coworker and friend. Robinson, ECF No. 1, 10 ¶¶ 9–10. 11 A. Plaintiff Maddalena 12 Maddalena and Toole met in late 2007 and dated on and off for several years. 13 (Compl. ¶ 9.) On October 6, 2009, Toole—without Maddalena’s knowledge— 14 installed the Spectorsoft eBlaster spyware program on her laptop. (Id. ¶¶ 9, 10.) 15 Toole used Spectorsoft to send himself a direct report of Maddalena’s every email and 16 instant message. (Id. ¶ 10.) Toole also sent himself hourly reports of her Internet 17 activity, ultimately gathering over 7,000 reports. (Id. ¶ 12.) 18 In March 2010, Toole installed Spector Pro spyware on Maddalena’s work 19 computer. (Compl. ¶ 13.) Then, in April, he installed a GPS tracking device on her 20 car. (Id. ¶ 20.) Effectively, Toole tracked Maddalena’s every keystroke and physical 21 movement. 22 relationships by impersonating her via emails and text messages to her friends and 23 family. (Id. ¶ 21.) Against the backdrop of Toole’s activity, Maddalena was caring 24 for a close family friend afflicted with a terminal illness. (Id. ¶ 22.) (Id. ¶ 19.) By late 2010, Toole began to unravel her personal 25 Finally, in January 2011, Maddalena realized that someone had been 26 intercepting her emails when she received a reply to an email that she knew she had 27 28 1 Having carefully considered the papers filed in support of and in opposition to the instant Motions, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L. R. 7-15. 2 1 not sent. (Id. ¶¶ 6, 22.) On January 25, 2011, Maddalena hired the computer 2 company Mac SOS to investigate her suspicions. (Maddalena Decl. ¶ 4.) Mac SOS 3 discovered Spectorsoft on her laptop. 4 admitted installing the spyware on her laptop. (Id.) But Maddalena did not yet know 5 about the spyware installed on her other computers or GPS tracking on her car. (Id.) (Id.) Maddalena confronted Toole who 6 Maddalena hired legal counsel in February 2011, and reported the incident to 7 the FBI in March 2011. (Maddalena Decl. ¶ 56.) On September 19, 2011, the FBI 8 conducted a formal search of Toole’s home. Two days later, the FBI informed 9 Maddalena that Toole had carefully curated a database of her messages, emails, texts, 10 and other private electronic data. (Compl. ¶ 23.) This news came as a shock to 11 Maddalena. (Maddalena Decl. ¶¶ 8, 10.) Since then, Maddalena has been diagnosed 12 with Post Traumatic Stress Disorder and is regularly attending therapy. (Id. ¶ 8.) 13 After meeting with the FBI, Maddalena claims that she continued to learn the 14 “type and extent of [Toole’s] secretive infiltrations” that are the basis of this action. 15 (Maddalena Decl. ¶ 8.) For instance, Maddalena learned that since 2010, her mother 16 and sister had been receiving countless hurtful emails from Maddalena, in which she 17 had accused them of being bad mothers. (Id. ¶ 13.) Maddalena never sent these 18 emails. (Id. ¶ 11). In retrospect, Maddalena considers this her first indication of how 19 Toole used spyware to steal her identity and dismantle her personal relationships. 20 (Id.) 21 Finally, on November 1, 2012, Toole was convicted of a felony for his illegal 22 electronic monitoring. (Compl. ¶ 8.) At the restitution hearing on January, 11, 2013, 23 Maddalena “realized the need to bring a civil suit for damages which were not 24 compensated through the criminal proceeding.” 25 Accordingly, on July 5, 2013, Maddalena filed this Complaint, alleging sixteen causes 26 of action. (ECF No. 1.) 27 /// 28 /// 3 (Maddalena Decl. ¶ 15.) 1 B. Plaintiff Robinson 2 Peggy Robinson, Maddalena’s co-worker and confidante, also fell victim to 3 Toole’s wrongdoings. Robinson, ECF No. 1. In early 2010, Toole broke into 4 Robinson’s work offices and installed spyware on her laptop computer, effectively 5 gaining access to her email, Skype, and G-Chat accounts. Id. ¶¶ 9–10. As he did with 6 Maddalena, Toole printed and stored the entirety of Robinson’s electronic 7 communications at his house. Id. ¶ 15. 8 According to her Complaint, Robinson “began to discover” in January 2011, 9 that Toole had used spyware and other tracking devices to invade her personal and 10 professional life. Robinson, ECF No. 1. At this time, “through conversations with 11 each other,” Maddalena and Robinson discovered that Toole had read Robinson’s 12 G-Chats and emails. Id. ¶ 19. Robinson then reported the incident to the FBI through 13 her counsel. Id. ¶ 20. During the September, 2011 search of Toole’s home, the FBI 14 found plastic tubs filled with hard copies of Robinson’s online communications. Id. ¶ 15 20.) Robinson then filed her Complaint on August 15, 2013. (ECF No. 1.) 16 Plaintiffs allege various state-law-tort claims and the same three federal claims 17 for damages: (1) violation of the Electronic Communications Privacy Act, 18 U.S.C. 18 § 2510; (2) violation of the Stored Communications Act, 18 U.S.C. § 2701; and 19 (3) violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Toole moves 20 to dismiss the federal claims as time barred, contending that Plaintiffs filed their 21 complaints after the prescribed two-year statutes of limitations. Toole also moves to 22 dismiss the remaining state-law claims for lack of subject-matter jurisdiction. 23 III. LEGAL STANDARD 24 Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal 25 theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” 26 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint 27 need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)—a short 28 and plain statement—to survive a motion to dismiss for failure to state a claim under 4 1 Rule 12(b)(6). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); Fed. R. Civ. P. 2 8(a)(2). For a complaint to sufficiently state a claim, its “[f]actual allegations must be 3 enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 4 Twombly, 550 U.S. 544, 555 (2007). While specific facts are not necessary so long as 5 the complaint gives the defendant fair notice of the claim and the grounds upon which 6 the claim rests, a complaint must nevertheless “contain sufficient factual matter, 7 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 8 Iqbal, 556 U.S. 662, 678 (2009). 9 Iqbal’s plausibility standard “asks for more than a sheer possibility that a 10 defendant has acted unlawfully,” but does not go so far as to impose a “probability 11 requirement.” Id. Rule 8 demands more than a complaint that is merely consistent 12 with a defendant’s liability—labels and conclusions, or formulaic recitals of the 13 elements of a cause of action do not suffice. Id. Instead, the complaint must allege 14 sufficient underlying facts to provide fair notice and enable the defendant to defend 15 itself effectively. 16 determination whether a complaint satisfies the plausibility standard is a “context- 17 specific task that requires the reviewing court to draw on its judicial experience and 18 common sense.” Iqbal, 556 U.S. at 679. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The 19 When considering a Rule 12(b)(6) motion, a court is generally limited to the 20 pleadings and must construe “[a]ll factual allegations set forth in the complaint . . . as 21 true and . . . in the light most favorable to [the plaintiff].” Lee v. City of L.A., 250 F.3d 22 668, 688 (9th Cir. 2001). Conclusory allegations, unwarranted deductions of fact, and 23 unreasonable inferences need not be blindly accepted as true by the court. Sprewell v. 24 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Yet, a complaint should be 25 dismissed only if “it appears beyond doubt that the plaintiff can prove no set of facts” 26 supporting plaintiff’s claim for relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 27 1999). 28 /// 5 1 As a general rule, leave to amend a complaint that has been dismissed should be 2 freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when 3 “the court determines that the allegation of other facts consistent with the challenged 4 pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well 5 Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); see Lopez v. Smith, 203 F.3d 6 1122, 1127 (9th Cir. 2000). IV. 7 DISCUSSION 8 Toole moves to dismiss Plaintiffs’ entire action because they filed their 9 complaints after the federal claims’ two-year statute of limitations had expired. 10 (Mot. 2; Robinson, ECF No. 12.) Toole further maintains that, because Plaintiffs have 11 failed to state a federal claim, the Court has no basis to exercise supplemental 12 jurisdiction over the remaining state-law claims. (Mot. 3; Robinson, ECF No. 12.) 13 Plaintiffs assert that (1) their federal claims are not time-barred, and (2) even if the 14 federal claims are time-barred, the Court should borrow and apply California Code of 15 Civil Procedure section 340.3, a tolling statute, in this action. (Opp’n 5; Robinson, 16 ECF No. 15.) 17 (Opp’n 8; Robinson, ECF No. 12.) Because the Court finds that Plaintiffs’ claims are 18 time-barred by the applicable statues of limitations and declines to import California 19 Civil Procedure Code section 340.3, Toole’s motion to dismiss is GRANTED. 20 A. Alternatively, they argue that equitable-tolling principles apply. Plaintiffs’ federal claims are time-barred 21 The three federal claims at issue in this action have two-year statutes of 22 limitations. To recover civil damages for a violation of 18 U.S.C. § 2510, a party 23 must file within two years after the date upon which a claimant has a “reasonable 24 opportunity” to discover the violation. 18 U.S.C. § 2520(e) For 18 U.S.C. § 2701, a 25 civil action runs only for two years after the date upon which the claimant “first 26 discovered or had a reasonable opportunity to discover the violation.” 18 U.S.C. § 27 2707(f). The applicable statute of limitations for 18 U.S.C. § 1030 explains that an 28 /// 6 1 action must be raised “within two years of the date of the act complained of or the 2 date of the discovery of the damage.” 18 U.S.C. § 1030(g). 3 Defendant asserts that Plaintiffs’ federal claims accrued when Plaintiffs 4 discovered the illegally installed spyware in January 2011, and therefore the two-year 5 statutes of limitations have passed. (Mot. 4; Robinson, ECF No. 12.) Plaintiffs 6 contend that although they initially suspected Toole’s actions in January 2011, they 7 did not discover every technological mechanism used to spy on them, nor “the extent 8 of Toole’s secretive infiltrations,” until September 21, 2011, when the FBI explained 9 the findings from their raid of Toole’s home. (Opp’n 7; Robinson, ECF No. 15.) 10 Therefore, Plaintiffs argue, September 2011, is the proper accrual date. The Court 11 disagrees. 12 Like many statutes of limitation, the statutes at issue in this action do not 13 require that the claimant have actual knowledge of the violation. Rather, 18 U.S.C. 14 § 2520(e), § 2707(f), and 1030(g) demands only that the claimant have had a 15 reasonable notice to discover the violation. One court has explained that the statute of 16 limitations for 18 U.S.C. § 2520(e) will bar a suit if the plaintiff “had such notice as 17 would lead a reasonable person either to sue or to launch an investigation that would 18 likely uncover the requisite facts.” Sparshott v. Feld Entm’t, Inc., 311 F.3d 425, 429 19 (D.C. Cir. 2002); accord Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998) 20 (“[plaintiff] had to bring his claim under the Federal Wiretap Act within two years of 21 the time when he had a reasonable opportunity to discover the violation.”) (internal 22 quotations omitted); Lanier v. Bryant, 332 F.3d 999, 1003 (6th Cir. 2003). 23 Here, Plaintiffs had a reasonable opportunity to discover the violations long 24 before the FBI investigation in September 2011. 25 reasonable opportunity to discover Toole’s illegal activity on January 25, 2011, when 26 she discovered the Spectorsoft software on her computer. 27 acknowledges in her Complaint that she actually discovered that Toole was 28 responsible for the installation of Spectorsoft when she confronted him. (Compl. 7 Maddalena certainly had a In fact, Maddalena 1 ¶ 23.) Thus, beyond a reasonable opportunity, Maddalena had actual knowledge of 2 Toole’s illegal electronic monitoring. (Maddalena Decl. ¶ 1.) 3 Similarly, Robinson had sufficient notice of Toole’s misconduct by January 4 2011. Robinson admits that she “[began] to discover the illegal use of . . . spyware on 5 her computers” in early January, 2011. (Robinson, ECF No. 1, ¶¶ 8, 29.) Robinson 6 asserts that “Through conversations with each other Ms. Maddalena and [Robinson] 7 came to discover that Defendant was privy to information that could not possibly be 8 obtained by normal means.” (Id. ¶ 19) Thus, Robinson also had actual knowledge of 9 Toole’s illegal electronic monitoring in January 2011. 10 Plaintiffs’ argument that the “secretive technological nature” of Toole’s 11 wrongdoing prevented them from fully discovering the arsenal of spyware he installed 12 and the extent to which he was monitoring their activities is irrelevant. A victim of 13 wiretapping does not need to discover every type and means of the defendant’s 14 misconduct. 15 defendant’s use of technologically different means of wiretapping did not put her on 16 notice of his wrongdoing and explaining that the earlier incidents gave her a 17 “reasonable opportunity to discover later violations”). Further, a plaintiff need not 18 even know the exact perpetrator of an injury to have sufficient notice to bring suit. 19 See Dyniewicz v. United States, 742 F.2d 484, 486–87 (9th Cir. 1984.) Here, it is 20 sufficient that Plaintiffs were aware of the immediate injury giving rise to their federal 21 claims—the secretly-installed spyware. And although it took a “full-throttle” FBI 22 investigation to uncover the full extent of Toole’s actions, the January 2011 discovery 23 of Spectorsoft was enough notice for Plaintiffs to bring suit. See Sparshott, 311 F.3d at 430 (rejecting plaintiff’s argument that 24 Moreover, taking legal action or launching an investigation indicates that a 25 plaintiff has been made reasonably aware of the defendant’s misconduct. Sparshott, 26 311 F.3d at 429. Plaintiffs fit squarely within this rule. In February 2011, after the 27 spyware discovery, Maddalena “hired legal counsel to advise her and they reported 28 this incident to the FBI.” (Compl. ¶ 23; Robinson, ECF No. 1, ¶ 20.) Although 8 1 Maddalena did not bring a civil suit at that time, by March 2011 she had spoken with 2 two different attorneys and participated in the FBI investigation. (Compl. ¶ 23.) 3 Both of these actions make clear that by January 2011, Plaintiffs had sufficient notice 4 of Toole’s cyberstalking to “sue or to launch an investigation that would likely 5 uncover the requisite facts.” Sparshott, 311 F.3d at 429. At the very latest, Plaintiffs 6 were on notice by February or March of 2011, when they had enough information 7 regarding Toole’s cyberstalking to enlist help from legal counsel and the FBI. Even if 8 the Court accepted the later date of March 2011, as the accrual date the two-year 9 statutes of limitation would have run almost five months before Plaintiffs’ filing dates. 10 Based on the timeline offered by Plaintiffs in the Complaint, the Court is 11 compelled to believe that January 2011, is the proper accrual date under the applicable 12 statutes of limitation. Because Plaintiffs waited almost two-and-a-half years to file 13 their complaints, their actions are time-barred. 14 B. The statutes of limitations are not tolled based on Toole’s state felony 15 conviction. 16 In the absence of an analogous federal tolling statute, Plaintiffs urge the Court 17 to import CCP section 340.3 to toll the federal claims in this action. CCP section 18 340.3(a) provides, 19 Unless a longer period is prescribed for a specific action, in any action 20 for damages against a defendant based upon the defendant’s commission 21 of a felony offense for which the defendant has been convicted, the time 22 for commencement of the action shall be within one year after judgment 23 is pronounced. 24 Cal. Civ. Proc. Code § 440.3(a). 25 Plaintiffs argue that federal courts frequently import state statutes like CCP 26 340.3(a) to toll the statute of limitations for federal claims. They argue that “[j]ust as 27 in cases brought under 42 U.S.C. § 1983 . . . here there is no federal statute equivalent 28 to CCP section 340.3 which would operate to toll.” (Opp’n 5.) However, a state 9 1 statute of limitations should only be applied in the absence of a relevant federal statute 2 of limitations. See Sierra Club v. Chevron, U.S.A., 834 F.2d 1517, 1521 (9th. Cir. 3 1987). Here, three relevant federal statutes of limitation were already available for 4 Plaintiffs’ federal claims. 5 Although Plaintiffs correctly assert that § 1983 claims merit an application of a 6 state tolling statute because they lack an “independent statute of limitations,” Ellis v. 7 City of San Diego, 176 F.3d 1183, 1188 (9th Cir. 1999), the Court will not disturb the 8 statute of limitations already provided by the wiretapping statutes. Burnett v. N.Y. 9 Cent. Co., 380 U.S. 424, 433 (1965) (declining to depart from a federal claim’s readily 10 available statute of limitations and toll with a local statute). 11 While the CCP 340.3’s statute of limitations was enacted to encourage crime 12 victims to later seek restitution in a civil lawsuit, state legislatures do not devise their 13 limitations periods with national interests in mind. Guardian N. Bay, Inc. v. Super. 14 Ct., 94 Cal. App. 4th 963, 973 (Ct. App. 2001). Federal courts should therefore 15 ensure that borrowing a state statute will not frustrate national policies. Occidental 16 Life Ins. Co. of Cal. v. EEOC, 432 U.S. 367 (1977). Here, 28 U.S.C. § 1658 expressly 17 provides that civil actions like Plaintiffs’ federal claims should be raised no later than 18 two years after the date of discovery. 28 U.S.C. § 1658. The only fact that Plaintiffs 19 allege bring this action within the purview of CCP section 340.3 is Toole’s felony 20 conviction. Borrowing CCP section 340.3 would arbitrarily and unnecessarily depart 21 from the policies and interests safeguarded by § 1658. 22 While Plaintiffs maintain that “it is established” that CCP 340.3 tolls federal 23 claims, they do not provide a single authority in which 18 U.S.C. §§ 2510, 2701, or 24 1030 have been tolled by a felony conviction, much less CCP section 340.3. Plaintiffs 25 cite Risk v. Kingdom of Norway for the proposition that CCP section 340.3 can 26 operate as a tolling statute for federal claims. (Opp’n 3.) But Plaintiffs read Risk too 27 broadly. Risk was a diversity action that applied CCP section 340.3 to state-law 28 claims. Risk v. Kingdom of Norway, 707 F. Supp. 1159, 1169 (N.D. Cal. 1989). 10 1 Unlike Risk, the issue here is whether CCP section 340.3 can toll federal claims. 2 Moreover, in Risk the parties stipulated in advance that CCP section 340.3 would 3 govern. Risk, 707 F. Supp at 1169. 4 The two additional cases that Plaintiffs cite are similarly distinguishable. 5 Although Plaintiffs correctly state that the court in Loran v. Lockyer applied CCP 6 section 340.3, the Court did so to affirm the plaintiff’s federal claim as time-barred, 7 not to toll the § 1983 claims. See Loran v. Lockyer, 43 F. App’x 74 (9th Cir. 2002). 8 And Ashlee R., an unpublished case, is distinguishable because the court did not toll 9 plaintiff’s § 1983 claims with CCP section 340.3, but instead tolled under CCP section 10 352(b) until the plaintiff turned eighteen. Ashlee R. ex rel. Russell v. Oakland Unified 11 Sch. Dist. Fin. Corp., No. CV 03-5802-MEJ, 2004 WL 1878214, at *3 (N.D. Cal. 12 Aug. 23, 2004). 13 C. Even as a last resort, equitable tolling principles are unavailing. 14 Finally, Plaintiffs argue in the alternative that their federal claims should be 15 equitably tolled out of fairness. (Opp’n 8.) Maddalena argues that she was (1) seeing 16 a professional therapist; (2) caring for a friend with a terminal illness; and 17 (3) diagnosed with PTSD and accordingly, could not be expected to bring civil suit 18 during this time. (Opp’n 8–9). Robinson asserts that she “has become severely 19 mentally affected by Defendant’s conduct including becoming paranoid, distrustful, 20 anxious, fearful, emotionally distressed, and requiring substantial therapy.” 21 (Opp’n 9.) 22 Equitable tolling will only apply if “extraordinary circumstances” beyond the 23 plaintiff’s control made it impossible to file the claims on time. Seattle Audubon Soc. 24 v. Robertson, 931 F.3d 590, 595 (9th Cir. 1991). Further, the party invoking equitable 25 tolling “despite all due diligence, [must be] unable to obtain vital information bearing 26 on the existence of the claim.” Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1193 (9th 27 Cir. 2001). 28 /// 11 1 While the Court is sympathetic to the traumatic events Plaintiffs endured, the 2 Court does not find that her emotional stress was a sufficient “extraordinary 3 circumstance” that it prevented Plaintiffs from timely filing their civil action. See, 4 e.g., Stoll v. Runyon, 165 F.3d 1238, 1239, 1243 (9th Cir. 1999) (applying equitable 5 tolling where plaintiff was psychiatrically disabled after multiple suicide attempts and 6 could not lucidly communicate with her attorney in her harassment action after being 7 repeatedly raped by her work supervisor and sexually harassed by numerous male 8 coworkers). 9 Additionally, Plaintiffs have not demonstrated that they were unable, because of 10 her emotional stress, to obtain the information necessary to file this action. In fact, 11 Plaintiffs had sufficient information, gleaned from Maddalena’s personal investigation 12 and legal counsel, the Plaintiffs’ conversations, the FBI investigation, and the criminal 13 proceeding to bring suit long before the statute of limitations expired. Notably, 14 Plaintiffs still waited six months after the January 2013 criminal restitution hearing— 15 which they assert is when they finally “realized the need to bring a civil suit” for 16 damages—to file their claims. Plaintiffs were simply not diligent in filing this action. 17 Thus, the Court finds that this is not an extraordinary circumstance warranting 18 equitable tolling. 19 In sum, Plaintiffs federal claims are time-barred by the applicable statues of 20 limitations. The Court declines to import CCP section 340.3 to toll the statute of 21 limitations and finds that this case is not sufficiently exceptional to warrant equitable 22 tolling. Without a viable federal claim, the Court declines to exercise jurisdiction over 23 the remaining state-law claims. 28 U.S.C. § 1367(c)(3); Lacey v. Maricopa County, 24 693 F.3d 896, 940 (9th Cir. 2012). The Court notes that Plaintiffs may be able to refile 25 their state-law claims in state court by November 1, 2013. See Cal. Civ. Proc. Code § 26 340.3(a). 27 /// 28 /// 12 V. 1 CONCLUSION 2 Accordingly, for the reasons discussed above, Toole’s Motion to Dismiss is 3 GRANTED and Plaintiffs’ federal claims are hereby DISMISSED WITH 4 PREJUDICE. 5 PREJUDICE. The Clerk of the Court shall close this case. Plaintiffs’ state-law claims are hereby DISMISSED WITHOUT 6 7 IT IS SO ORDERED. 8 9 October 1, 2013 10 11 12 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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