Walker v. Pacific Maritime Association et al, No. 3:2007cv03100 - Document 109 (N.D. Cal. 2009)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by Magistrate Judge Bernard Zimmerman granting 100 Motion for Summary Judgment (bzsec, COURT STAFF) (Filed on 4/20/2009) (Additional attachment(s) added on 4/23/2009: # 1 Proof of Service) (bzsec, COURT STAFF).
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Walker v. Pacific Maritime Association et al Doc. 109 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JAMES TROY WALKER, ) ) ) Plaintiff(s), ) ) v. ) PACIFIC MARITIME ASSOC., et ) ) al., ) Defendant(s). ) ) 17 No. C07-3100 BZ ORDERING GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT On June 13, 2007, plaintiff James Troy Walker 18 (“plaintiff”), acting pro se, filed a complaint against C&H 19 Sugar Co., Inc. (“defendant”), and other defendants alleging 20 employment discrimination under Title VII of the Civil Rights 21 Act. 22 part, on the untimeliness of plaintiff’s claims, I permitted 23 plaintiff to amend his complaint against defendant C&H to 24 invoke the doctrine of equitable tolling on the grounds that 25 he “lost legal competency for several years.” (See Doc. No. 26 45.) 27 28 After I granted various motions to dismiss based, in Defendant has moved for summary judgment on the ground that plaintiff’s claim is barred by the applicable three year 1 Dockets.Justia.com 1 statute of limitations under 46 U.S.C. § 763(a), recently re- 2 codified at 46 U.S.C. § 30106.1 3 argues that no exceptional circumstances exist that would 4 support equitable tolling of the applicable three-year statute 5 of limitations. More specifically, defendant Plaintiff’s opposition to defendant’s motion was due on 6 7 April 1, 2009. As required by Rand v. Rowland, 154 F.3d 952, 8 963 (9th Cir. 1998), plaintiff has been cautioned about the 9 importance of submitting evidence in opposition to a motion 10 for summary judgment to show that there is a genuine issue of 11 material fact for trial, and was advised that if summary 12 judgment is granted, the case would be dismissed and there 13 would be no trial. 14 filed; however, as plaintiff is pro se, the Court has reviewed 15 the record in deciding defendant’s motion.2 16 (See Doc. No. 89.) No opposition was Viewing the record in the light most favorable to 17 plaintiff and drawing all reasonable inferences therefrom, the 18 factual background to this case is as follows: 19 On May 1, 2002, plaintiff, as an employee of former 20 defendant Marine Terminals Corporation (“MTC”), was scraping 21 raw sugar off of the hull of a ship at the C&H Sugar refinery. 22 Plaintiff was injured when a backhoe, operated by another 23 employee of MTC, malfunctioned and collided with a piece of 24 25 26 27 28 1 All parties have consented to my jurisdiction for all proceedings including entry of final judgment, pursuant to 28 U.S.C. § 636(c). 2 For the purposes of this review, I have assumed that the various documents in the file were properly before the Court. See Orr v. Bank of Am., 285 F.3d 764 (9th Cir. 2002). 2 1 metal, causing the piece of metal to strike plaintiff in the 2 face.3 The backhoe was owned by defendant C&H. The incident resulted in substantial and chronic brain 3 4 damage to plaintiff, who has continued to suffer from physical 5 and mental symptoms such as severe headaches, dizziness, 6 ataxia, and memory problems. 7 deposition that he was never declared legally incompetent by 8 any court and that none of his doctors ever recommended that 9 he be confined to a mental institution. Plaintiff testified in his Two weeks after plaintiff’s accident, he retained an 10 11 attorney, Cory Birnberg (“Birnberg”), to represent him in a 12 claim for Longshoreman and Harbor Workers Compensation Act 13 benefits. 14 the backhoe operator and personally attended the grievance 15 hearing. 16 Birnberg’s legal representation, and in early December 2004, 17 plaintiff filed a complaint with the State Bar of California 18 against Birnberg for professional misconduct.4 19 plaintiff retained Phil Weltin (“Weltin”), an attorney 20 plaintiff believed to be an expert in third party negligence 21 actions. Plaintiff also filed a union grievance regarding In November 2004, plaintiff became dissatisfied with Subsequently, Plaintiff testified that he mistakenly believed that both 22 23 Birnberg (while he was acting as plaintiff’s attorney) and 24 Weltin had been pursuing a civil third party action against 25 3 The nature of the malfunction is unknown. 26 4 27 28 The complaint against Birnberg was closed in April 2005 after the State Bar determined that there was insufficient evidence to establish that professional misconduct was committed. 3 1 defendant on his behalf.5 2 Walker Dep., 111:3-21, 112:10-23.) 3 that his third-party action was not being pursued, he 4 attempted to find another attorney to represent him. 5 112:15-23.) 6 complaint pro se on June 13, 2007. 7 (Decl. of Andrew J. Sommer Exh. A, Once plaintiff realized (Id. at Failing to find an attorney, plaintiff filed this Plaintiff’s negligence claim against defendant is 8 governed by the uniform three-year statute of limitations, 9 which applies to suits for recovery of damages for personal 10 injury or death, arising out of a maritime tort. 46 U.S.C. § 11 30106; Usher v. M/V Ocean Wave, 27 F.3d 370 (9th Cir. 1994). 12 As set forth in my earlier ruling (Doc. No. 45), the Supreme 13 Court has held that there is a rebuttable presumption that all 14 federal statutes of limitations contain an implied equitable 15 tolling provision. Irwin v. Dep’t of Veterans Affairs, 498 16 U.S. 89, 96-97 (1990); see also Walck v. Discavage, 741 17 F.Supp. 88, 90 (E.D. Pa. 1990) (stating it is a “general 18 principle” that equitable tolling is “‘read into every federal 19 statute of limitation.’”) (quoting Holmberg v. Armbrecht, 327 20 U.S. 392, 397 (1946)). Equitable tolling of a limitations period is appropriate 21 22 in three circumstances: (1) where the plaintiff has actively 23 pursued his judicial remedies by filing a timely but defective 24 25 26 27 28 5 In a letter from Weltin to plaintiff dated December 28, 2006, Weltin informed plaintiff that he did not believe that plaintiff had a third-party claim. The letter suggests that plaintiff and Weltin had previously discussed other possible legal actions for plaintiff to pursue, but that plaintiff was not satisfied with the answers that he had received from Weltin. 4 1 pleading (Burnett v. New York Cent. R. Co., 380 U.S. 424, 430 2 (1965)); (2) where extraordinary circumstances outside the 3 plaintiff's control made it impossible for the plaintiff to 4 timely assert his claim (Stoll v. Runyon, 165 F.3d 1238, 1242 5 (9th Cir. 1999); or (3) where the plaintiff, by exercising 6 reasonable diligence, could not have discovered essential 7 information bearing on his claim (Cada v. Baxter Healthcare 8 Corp., 920 F.2d 446, 452 (7th Cir. 1990)); see also Logwood v. 9 Apollo Marine Specialists, Inc., 772 F.Supp. 925, 927 (E.D. 10 La. 1999) (“[e]quitable tolling applies principally when the 11 plaintiff was actively misled about the cause of action by the 12 defendant, was prevented in some extraordinary way from 13 asserting his or her rights, or filed the same claim in the 14 wrong forum.). 15 Mental incapacity and the effect it has upon the ability 16 to file a lawsuit can be an “extraordinary circumstance” that 17 supports the application of the doctrine of equitable tolling. 18 Robles v. Leppke, No. 06-0219, 2007 WL 2462058 * 1 (E.D. Cal. 19 Aug. 28, 2007); see also United States v. Brockamp, 519 U.S. 20 347, 348 (1997) (“[mental disability], we assume, would permit 21 a court to toll the statutory limitations period”); Laws v. 22 Lamarque, 351 F.3d 919 (9th Cir. 2003) (mental incompetence 23 may warrant equitable tolling for the period the prisoner was 24 incompetent if he can show that the incompetency in fact 25 caused the filing delay). 26 In the Ninth Circuit, “[e]quitable tolling is unavailable Miles v. Prunty, 187 F.3d 1104, 1107 27 in most cases. . . .”, 28 (9th Cir. 1999) (citing Calderon v. United States Dist. Court 5 1 (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in 2 part on other grounds by Calderon v. United States Dist. 3 Court, (Kelly), 163 F.3d 530 (9th Cir. 1998)), and has been 4 found appropriate “when extraordinary circumstances beyond the 5 plaintiff’s control [make] it impossible to file a claim on 6 time.” 7 United States, 107 F.3d 696, 700 (9th Cir. 1996))6; see also 8 Irwin, 498 U.S. at 95-96 (“Federal courts have typically 9 extended equitable relief only sparingly.”) (footnotes 10 Stoll, 165 F.3d at 1242 (citing Alvarez-Machain v. omitted). 11 Even taking the evidence offered in a light most 12 favorable to plaintiff, there is insufficient evidence that 13 would create a genuine issue of material fact of 14 “extraordinary circumstances” that made it “impossible” for 15 plaintiff to file within the statutory period.7 16 17 18 19 20 21 22 23 24 6 The limited application of the doctrine of equitable tolling in the Ninth Circuit is consistent with other circuit courts. See, e.g., Biester v. Midwest Health Serv., Inc., 77 F.3d 1264, 1268 (10th Cir. 1996) (declining to toll 90 day EEOC filing period for mental incapacity due to “major depression” where no “exceptional circumstances” were alleged and “the evidence demonstrate[d] that, in spite of his mental condition, [plaintiff] ‘was capable of pursuing his own claim,’” inasmuch as he “wrote to the EEOC . . . to request a right to sue notice”); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (“Mental illness tolls a statute of limitations only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them. . . . Most mental illnesses today are treatable by drugs that restore the patient to at least a reasonable approximation of normal mentation and behavior.”) (emphasis in original). 25 7 26 27 28 Plaintiff does not present any of the other situations set forth in Irwin that would permit equitable tolling of the applicable statute in this case: he neither filed a timely though defective pleading within the applicable statutory period, nor is there any evidence that he was he tricked by defendant into allowing the deadline to pass. 6 1 There is scant evidence that during the period from May 2 1, 2002, the date of plaintiff’s injury, to May 1, 2005, the 3 last day within the applicable statutory period, plaintiff 4 could not have filed a timely complaint against defendant or 5 that plaintiff was mentally (or physically) incapable of 6 filing a complaint against defendant.8 7 opposite is true. 8 three year period at issue, plaintiff was fully capable of 9 managing his legal affairs: after plaintiff was injured, he If anything, the The record demonstrates that during the 10 obtained legal counsel to pursue his worker’s compensation 11 claim; he pursued a union grievance and attended the grievance 12 hearing; he filed a complaint with the State Bar against 13 Birnberg; and he obtained new counsel upon becoming 14 dissatisfied with Birnberg’s legal representation, counsel 15 whom he believed would handle any third-party lawsuits that he 16 potentially could have brought. 17 of discrimination in 2007 with the EEOC against former Plaintiff also filed a charge 18 8 19 20 21 22 23 24 25 26 27 28 The record contains letters from various healthcare providers that state that plaintiff has been suffering from chronic brain injuries. These letters, however, do not establish that plaintiff’s medical condition prevented him from sufficiently articulating his claims or that plaintiff was too incompetent to tend to either his daily or legal affairs. On September 17, 2008, a psychologist at the Department of Psychiatry at Kaiser Hospital in Vallejo, California, who had been treating plaintiff for several years, wrote a letter to the Court in support of plaintiff’s motion for appointment of counsel stating that plaintiff suffered from “significant chronic head pain, dizziness, and other symptoms” that impact his ability to concentrate and his ability “to deal with complex matters.” Based on these mental and physical issues, the psychiatrist concluded that plaintiff was “incapable of representing himself.” This letter, however, was written well after the applicable statutory period had expired and presents no explanation for plaintiff’s failure to pursue his claim within the prescribed limitations period. See Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1137 (9th Cir. 1998). 7 1 defendant Pacific Maritime Association (“PMA”) and requested a 2 right to sue letter, and on June 13, 2007, plaintiff, 3 proceeding in pro se, filed a Title VII discrimination claim 4 against PMA, MTC, his union, and defendant, which is the 5 origin of the current dispute. 6 Plaintiff has failed to offer any evidence or allege 7 specific facts, and the Court has found none, that would 8 create a “genuine issue of material fact” that his physical 9 and emotional injuries were “exceptional circumstances” that 10 prevented him from proceeding with his claims, especially in 11 light of all of the contrary evidence listed above. 12 plaintiff’s mental and emotional injuries rise to the level of 13 the mental or physical incapacities contemplated by courts 14 that have tolled limitations periods as a result of such 15 incapacities. 16 tolling was proper where “overwhelming evidence” demonstrated 17 that complainant was completely disabled during the 18 limitations period and incapable of communicating with her 19 lawyer); Cf., Langner v. Simpson, 533 N.W.2d 511, 523 (Iowa 20 1995) (“The statute of limitations is not tolled if the person 21 has a mental illness not rising to the level of a disability 22 such as to prevent the person from filing a lawsuit. In short, 23 the disability must be such that the plaintiff is not capable 24 of understanding the plaintiff’s rights.”); Lopez v. Citibank, 25 N.A., 808 F.2d 905, 906-07 (1st Cir. 1987). 26 ability to consult with attorneys and file various other 27 claims, such as with his union and with the State Bar, during 28 his alleged period of legal incompetency undermines his claims Nor do See, e.g., Stoll, 165 F.3d at 1242 (equitable 8 Plaintiff’s 1 2 of legal incompetency. I find no need for argument and vacate the hearing 3 scheduled for April 29, 2009. It is ORDERED that defendant’s 4 motion for summary judgment is GRANTED. 5 Dated: April 20, 2009 6 7 Bernard Zimmerman United States Magistrate Judge 8 9 G:\BZALL\-BZCASES\Walker v. Pac. Maritime\ORDER ON MOT FOR SUMMARY JUDGMENTv.2.BZ VERSION.wpd 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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