United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
On August 11, 2014, Defendants filed a Motion to Dismiss and/or Summary Judgment As to Plaintiff's Third Amended Complaint . Defendants argue that Mr. Miller's Federal Tort Claims Act ("FTCA") claim was either waived at an earlier stage of this litigation or is time barred by the relevant statute of limitations. Defs.' Motion to Dismiss  at 7, 9. Defendants also argue that Mr. Miller's Bivens action should be dismissed because of his continual failure to name any actual defendants against whom this action is brought despite having received sufficient discovery to identify the relevant individuals. Id. at 10.
Mr. Miller responds that his FTCA claim was not waived at an earlier stage of this litigation, and that it should not be time barred because the relevant statute of limitations should have been equitably tolled or, in the alternative, the Third Amended complaint should be found to related back to the original filing date of this case under Fed.R.Civ.P. 15(c)(1)(C). Pl.'s Resp.  at 1. Mr. Miller also argues that his Bivens action should not be barred because he believes that he has identified at least two individuals who he intends to name as defendants. Id. at 8. Mr. Miller did not name these individuals as defendants in his Third Amended Complaint because he believes that he requires additional discovery prior to officially naming these two individuals as the defendants for his Bivens action. Id.
After reviewing the parties' submissions, I have determined that Mr. Miller's FTCA claim is time barred, and that his attempts to apply equitable tolling or relation back principles to this claim are without merit. Accordingly, Mr. Miller's FTCA claim should be dismissed with prejudice. Additionally, I find that Mr. Miller's repeated failure to properly identify any specific defendants in his Bivens action is sufficient grounds to dismiss that claim with prejudice.
I. Relevant Standard for Mr. Miller's Federal Tort Claims Act Claim
Summary judgment is appropriate if the pleadings and the evidence demonstrate "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. The party seeking summary judgment bears the initial burden of demonstrating that no genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To determine whether there is a genuine issue of material fact sufficient to preclude summary judgment, the court must accept all evidence and make all inferences in the nonmoving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A nonmoving party may not simply rely on the pleadings, however, but must produce significant probative evidence supporting its claim that a genuine issue of material fact exists. T. W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). This means that a non-moving party must do more than merely disagree about a material issue of fact . Jackson v. Bank of Haw, 902 F.2d 1385, 1389 (9th Cir. 1990).
In Wong v. Beebe, the Ninth Circuit recently set out the requirements for applying equitable tolling to an FTCA claim statute of limitations:
"[L]ong-settled equitable-tolling principles" instruct that "[g]enerally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.'" Credit Suisse, 132 S.Ct. [1414, 1419 (2011)] [internal citations omitted].
As to the first element, "[t]he standard for reasonable diligence does not require an overzealous or extreme pursuit of any and every avenue of relief. It requires the effort that a reasonable person might be expected to deliver under his or her particular circumstances." Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011). Central to the analysis is whether the plaintiff was "without any fault" in pursuing his claim. Fed. Election Comm'n v. Williams, 104 F.3d 237, 240 (9th Cir. 1996).
With regard to the second showing, "a garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable tolling." Holland, 130 S.Ct. [2549, 2564 (2010) [internal citations omitted]. Instead, a litigant must show that "extraordinary circumstances were the cause of his untimeliness and... ma[de] it impossible to file [the document] on time." Ramirez, 571 F.3d [993, 997 (9th Cir. 2009)] [internal citations omitted]. Accordingly, "[e]quitable tolling is typically granted when litigants are unable to file timely [documents] as a result of external circumstances beyond their direct control." Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008).
732 F.3d 1030, 1052 (9th Cir. 2013) (en banc), cert. granted, United States v. Wong, 134 S.Ct. 2873 (2014) (quoting Credit Suisse Sec. (USA) LLC v. Simmonds, 132 S.Ct. 1414, 1419 (2012) (internal citations omitted)).
Under Fed.R.Civ.P. 15(c)(1)(C), an amendment to a pleading related back to the date of the original pleading when:
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and ...