United States District Court, D. Nevada
before the court is defendant United States of America's
motion for summary judgment (ECF No. 12). Plaintiff Darwin
Mazariegos-Diaz filed a response (ECF No. 13) to which
defendant replied (ECF No. 17).
before the court is plaintiff's request for oral
argument. (ECF No. 18).
19, 2015, plaintiff was involved in an automobile accident
with Lauren Parnell. (ECF No. 13). Plaintiff then retained an
attorney to represent him in regard to his claim against
Parnell as well as the registered owner of the vehicle
Parnell was driving at the time of the accident. Id.
attorney learned that at the time of the accident Ms. Parnell
was in the course and scope of her employment with the
Federal Bureau of Investigations (“FBI”).
Id. Plaintiff's attorney served a written claim
to an FBI representative on “Standard Form 95.”
Id. On April 29, 2016, plaintiff's attorney
received notice from the FBI denying plaintiff's claim.
after receiving the denial letter, plaintiff's attorney
fired plaintiff as a client. Id. Plaintiff's
lawyer did not wish to pursue a lawsuit in the wake of the
FBI's denial of plaintiff's claim. Id. While
plaintiff was aware his written claim submitted by his
attorney was rejected, plaintiff was unaware Ms. Parnell was
an employee of the FBI and that the demand had been sent to
the FBI. Id.
31, 2016, plaintiff retained his current attorney.
Id. Using the police report, plaintiff's current
attorney sought to locate Ms. Parnell and the vehicle's
owner to obtain their insurance information. Id. Due
to the difficulty in locating Ms. Parnell and the
vehicle's owner, plaintiff's current attorney did not
file a complaint until December 8, 2016. Id.
Plaintiff filed its complaint in state court.
February 9, 2017, counsel for the United States first filed a
notice of removal to United States District Court and then
filed a notice of substitution, substituting the United
States as party for Ms. Parnell. Id. Defendant
submitted a statement concerning removal on February 21,
2017. Id. On March 13, both parties submitted a
joint status report. Id.
several appearances in court, defendant stated it had yet to
be served and thus could not participate in setting up a
discovery schedule. Id. Obliging, plaintiff served a
copy of the complaint to defendant on April 28, 2017, with
proof of service filed with the court on May 10, 2017.
Id. Defendant did not file its answer until July 10,
2017, exactly 60 days after service. Id. The parties
then scheduled a discovery conference for August 11, 2017 -
defendant's first available date. Id.
discovery conference, instead of discussing a discovery
schedule, defense counsel informed plaintiff's counsel
that the applicable statute of limitations had expired prior
to the filing of plaintiff's complaint on December 8,
2016. Id. Up until this point, plaintiff believed
his only impediment to filing a suit was the expiration of
the statute of limitations on May 19, 2017 - two years from
the date of the accident. Id.
August 28, 2017, the parties filed a stipulation agreeing to
delay the start of discovery so that the statute of
limitations issue could be decided by motion. Id. On
September 19, 2017, defendant filed the instant motion for
summary judgment, requesting dismissal of plaintiff's
claims based on statute of limitations grounds. Id.
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims . . . .” Celotex Corp.
v. Catrett, 477 U.S. 317, 323- 24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
non-moving party must “set ...