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Mazariegos-Diaz v. United States

United States District Court, D. Nevada

December 15, 2017

DARWIN MAZARIEGOS-DIAZ, Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          ORDER

         Presently 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).

         Also before the court is plaintiff's request for oral argument. (ECF No. 18).

         I. Facts

         On May 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.

         Plaintiff's 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. Id.

         Shortly 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.

         On May 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.

         On 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.

         Despite 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.

         At the 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.

         On 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.

         II. Legal Standard

         The 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).

         For 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 ...


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