Burnell v. Kujala et al, No. 2:2020cv00271 - Document 13 (E.D. Wash. 2020)
Court Description: ORDER GRANTING 5 DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION. This matter is DISMISSED without prejudice and without any tolling of the statute of limitations. Case is CLOSED. Signed by Chief Judge Stanley A Bastian. (LMR, Case Administrator)
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n Indians v. Cal. State Bd. of Equalization, 858 17 F.2d 1376, 1380 (9th Cir. 1988). Thus, Plaintiff’s request for equitable tolling is 18 denied. 19 Even if the Court did have authority to toll the statute of limitations on 20 Plaintiff’s claims, he has not fulfilled the grounds for such relief. Equitable tolling 21 is generally not available as a form of relief. See Quick Korner Market v. U.S. 22 Dep’t of Agric., 180 F. Supp. 3d 683, 692 (S.D. Cal. 2016). A litigant is entitled to 23 equitable tolling only if they can show (1) that they have been pursuing their rights 24 diligently and (2) that some extraordinary circumstances stood in their way and 25 prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). To count as 26 “extraordinary,” the circumstances that caused a litigant’s delay in timely filing 27 must have been out of their control; a party’s own misunderstanding of law or a 28 tactical litigation mistake is not sufficient. Harris v. Carter, 515 F.3d 1051, 1055 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION * 6 Case 2:20-cv-00271-SAB ECF No. 13 filed 12/14/20 PageID.109 Page 7 of 7 1 (9th Cir. 2008); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) 2 (noting that ordinary neglect is not grounds for equitable tolling). Plaintiff cannot 3 establish either requirement for tolling. Plaintiff’s counsel mistakenly filed his 4 complaint in the wrong court and was mistaken in believing that Officer Kujala 5 was not covered by the FTCA. Plaintiff’s counsel also made the tactical decision to 6 rebuff the Government’s attempts to resolve the claims here or get the case filed in 7 the correct court. Plaintiff is therefore not entitled to equitable tolling. 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Defendants’ Motion & Memorandum to Dismiss for Lack of Jurisdiction, 10 ECF No. 5, is GRANTED. 11 2. This matter is DISMISSED without prejudice and without any tolling of 12 the statute of limitations. 13 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 14 this Order, provide copies to counsel, and CLOSE the file. 15 DATED this 14th day of December 2020. 16 17 18 19 20 21 Stanley A. Bastian Chief United States District Judge 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION * 7
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