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Reidel v. United States

United States District Court, W.D. Wisconsin

June 19, 2017



          WILLIAM M. CONLEY District Judge.

         Jennifer Reidel brings this lawsuit against the United States of America for negligence under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. In response, the government moves for dismissal of plaintiff's claims as time-barred. (Dkt. #5.) Ironically, since all of the traditional notions of equity would strongly support allowing plaintiff to proceed, the court must convert the defendant's motion to one for summary judgment in light of plaintiff's response, then deny her claim to so-called “equitable tolling” of the applicable statute of limitation barring her negligence claim against defendant under the FTCA.


         On April 2, 2013, Jennifer Reidel was injured after slipping and falling while trying to avoid ice and snow that the U.S. Post Office in Elk Mound, Wisconsin, was allegedly negligent in failing to clear directly next to her handicap parking space. (Compl. (dkt. #1) ¶ 5.) As required by 28 U.S.C. § 2675, plaintiff filed a written administrative claim with the United States Postal Service, and her attorney was mailed a written denial on March 8, 2016. (Id. at ¶ 3; Def.'s Mot. to Dismiss, Ex. B (dkt. #5-2).) The parties agree that this denial started the 180 day statute of limitations for her FTCA claims, meaning the hard deadline to file a lawsuit was September 8, 2016. 28 U.S.C. § 2401(b); 28 C.F.R. § 14.9(a).

         While plaintiff's federal complaint is dated September 2, 2016, six days before the deadline, the court's CM/ECF docketing system reflects that it was not electronically filed until September 14, 2016, six days after the deadline. By way of explanation for this discrepancy, plaintiff offers the affidavit from Mandy Sachs, a paralegal employed by her counsel's law firm, in which she states that on September 2, 2016, she sent an email, from counsel's email address, with the Civil Cover Sheet and New Case Party Information Sheet to receive a case number from our clerk's office, then she “immediately logged onto the ECF website, worked through each ECF screen, paid the $400 filing fee through and logged out of the ECF website, believing that the Complaint had been filed.” (Pl.'s Opp'n Br. (dkt. #7) 1-2 (citing Sachs Aff. (dkt. #8) ¶¶ 2-3).)

         Unfortunately, as Sachs explains in her affidavit, plaintiff's counsel received a call from this court's clerk's office on the afternoon of September 13, 2016, advising that a shell case had been opened on September 2nd, but that no complaint had been filed. (Sachs Aff. (dkt. #8) ¶ 4.) Sachs returned that call the following morning and spoke with a deputy clerk, who suggested Sachs email the transaction sheet and case number “so [that] she could look into it.” (Id. at ¶ 5.) According to Sachs, she “received a call back saying that the Complaint was not technically filed but they could not tell if the problem was on their end or ours.” ( ¶ 6.) Sachs also reports being instructed to file the complaint using the receipt number from the transaction on September 2, 2016, which she did. (Id.)


         As an initial matter, defendant's original motion to dismiss the complaint as time barred would be well taken if the court were only to consider the pleadings and court records, since merely paying the filing fee and obtaining a receipt is not enough to show that the complaint was actually filed. See Perparos v. United Indus. Corp., No. CV-13-01786-PHX-SPL, 2015 WL 11117075, at *4 (D. Ariz. Sep. 10, 2015) (“[T]he proof of payment [of the filing fee] is not probative as to whether the complaint was transmitted to the Clerk's office; payment of the filing fee precedes the requisite steps for electronically transmitting the complaint.”); see also infra n.1. To establish that her complaint was filed timely, therefore, plaintiff relies on Sachs' affidavit, and as defendant correctly points out in its reply brief, the court must convert its motion to dismiss into one for summary judgment before even considering Sachs' responsive affidavit, which the court finds appropriate in light of the narrow issue of timeliness presented here. See Fredrick v. Simmons Airlines, Inc., 144 F.3d 500, 504 (7th Cir. 1998) (“Affidavits are not properly considered in deciding upon a motion under Rule 12(b)(6) unless the district court converts the motion into one for summary judgment under Rule 56.”).

         Essentially, plaintiff argues that dismissal of her claims would be premature because it is at least plausible that she did file the complaint timely, but that an unexpected “glitch” in the court's electronic filing system prevented both its docketing and any corresponding error notification. In reply, defendant submits its own affidavit with an attached exhibit, showing that a number of electronic filings were made by both the court and other attorneys throughout the day on September 2, 2016. (Dkt. #11-1.) More importantly, while it cannot completely preclude the possibility, the court's own inquiries have been unable to identify any instance where a “glitch” in filing has occurred before or after this event. Unfortunately for plaintiff, the implausibility mounts further given that the CM/ECF system has a distinct, orderly twelve-step protocol for opening a new case, including uploading documents, making payment, and affirmatively confirming filing as a final step.[1] Consistent with a copy of the receipt of payment submitted by Sachs (dkt. #8-4), one of the court's deputy clerk and IT professional explained that the electronic records show plaintiff completed step nine by paying the filing fee at 12:18 p.m. on September 2, 2016, and that plaintiff's documents were on the court's server as temporary records briefly, but that rather than those temporary records being downloaded, they were deleted when the electronic filing process was ended before completion, hence there exists no docket entry or Notice of Electronic Filing (“NEF”) for the complaint until September 14, 2016. Indeed had Sachs reached it at all, the final screen step would have included a computer prompting her to click “Next” to file the complaint, appearing something like this:

         (IMAGE OMITTED)

         While the court is certainly willing to credit the hearsay statements of the deputy clerk with whom Sachs reported speaking regarding the possibility that there was a problem with the electronic filing system, plaintiff can offer only speculation that Sachs actually filed the complaint on September 2, 2016, before the statute of limitations ran. See Packman v. Chi. Tribune Co., 267 F.3d 628, 637 (7th Cir. 2001) (plaintiff “will not prevail by relying on a mere scintilla of evidence or speculation to support her position”). Accordingly, it is a near certainty that the paralegal either failed to reach the final screen or failed to click “Next” on the final screen to commit to filing the complaint.

         Although her complaint was, therefore, filed late, plaintiff argues that the court should nevertheless apply the equitable tolling doctrine and deem it timely. See United States v. Kwai Fun Wong, 575 U.S.___, 135 S.Ct. 1625, 1638 (2015) (FTCA statute of limitations is not jurisdictional, and equitable tolling is permitted).

         Would that I could. Unfortunately, the flexibility suggested by the doctrine's sounding in equity is belied by its application. To begin, the Supreme Court removes any traditional balancing of the equities by permitting a court to pause a running statute of limitations period only “when a party has pursued [her] rights diligently but some extraordinary circumstance prevents [her] from meeting a deadline.” Id. at 1630-31 (internal quotation marks and citation omitted). In addition, the “Supreme Court recently reiterated that [the extraordinary circumstances] element is met ‘only where the circumstances that caused a litigant's delay are both extraordinary and beyond [her] control.'” Carpenter v. Douma, 840 F.3d 867, 872 (7th Cir. 2016) (quoting Menominee Indian Tribe of Wis. v. United States, 577 U.S.___, 136 S.Ct. 750, 756 (2016) (emphasis in original)). If that were not restriction enough, the Supreme Court also cautions that the equitable tolling doctrine is to be applied “sparingly.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see also Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013) (“Equitable tolling is an extraordinary remedy and so is rarely granted.”) (internal quotation marks and citation omitted). Finally, plaintiff bears the burden of establishing the equitable tolling elements. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

         Applying the doctrine here, the court readily finds that plaintiff and her counsel dotted all the i's and crossed the t's throughout the administrative process, as required by the FTCA. While plaintiff might be criticized for waiting until the last week of the deadline to file her federal complaint, the court is willing to attribute this delay to ongoing efforts to reach a settlement, hesitation in proceeding or the product of procrastination. Failing to confirm that the filing went through after waiting until the last week is a greater problem for plaintiff, and particularly plaintiff's counsel, especially if you consider that the CM/ECF gives affirmative ...

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