United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE.
before the Court is Respondent's Motion to Dismiss for
untimeliness and improper venue, filed on January 18, 2018.
(Dkt. 11.) All parties have consented to the jurisdiction of
a United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). (Dkt. 10.) The parties have fully briefed the motion
and it is now ripe for the Court's consideration. Having
reviewed the record herein, the Court finds that the facts
and legal arguments are adequately presented in the briefs
and record. Accordingly, in the interest of avoiding delay,
and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument,
the motion will be decided on the record before this Court
without oral argument. Dist. Idaho L. Rule 7.1(d).
Court will dismiss the petition for review, for the reasons
Darcy Kindschy filed an application for disability insurance
benefits on April 17, 2013, alleging a disability onset date
of May 27, 2005, due to temporal mandibular joint
arthroplasty, degenerative disk disease, Sjorgen's
syndrome, and fibromyalgia. (Dkt. 12-1 at 8, 10-11.)
Petitioner's application was denied initially and upon
reconsideration, and a hearing was held on November 3, 2014.
Id. On February 18, 2016, Administrative Law Judge
(ALJ) Christopher R. Inama issued his decision denying
Petitioner's claim for benefits under Title II of the
Social Security Act. (Dkt. 12-1 at 5- 17.) Petitioner timely
requested review by the Appeals Council, which denied her
request for review on May 31, 2017. (Dkt. 12-1 at 18.) The
Appeals Council's decision constituted a final decision
appealable to this Court. 42 U.S.C. § 405(g), (h).
Appeals Council notice informed Petitioner of her right to
file a civil action within 60 days if she disagreed with the
decision, and that the 60-day period would commence five days
after the date printed on the notice. (Dkt. 12-1 at 19.); see
also 20 C.F.R. § 422.210(c). The notice informed
Petitioner that, if she could not file a civil action within
those 60 days, she could request that the Appeals Council
extend the 60-day period. Id. The notice provided
also that, if Petitioner waited more than 60 days to make
this request, she would need to establish good cause for why
her request was untimely. Id.
retained an attorney on June 30, 2017, and provided the
attorney with the necessary information to file a civil
action. (Dkt. 12-1 at 24.) On October 24, 2017,
Petitioner's attorney commenced this action by filing a
Petition for Review. (Dkt. 1.)
attorney additionally filed a Statement of Good Cause
explaining why the filing was untimely. Id.
Petitioner's attorney explained that she was too busy
with other cases to file Petitioner's civil action in a
timely manner. Id. On October 26, 2017, two days
after she had initiated a civil action in this Court on
behalf of Petitioner, Petitioner's attorney sent a
written request to the Appeals Council asking for a
retroactive extension of the 60-day period. (Dkt. 12-2 at
21.) Petitioner's attorney explained she was not able to
file the request for an extension of time earlier due to her
“heavy workload.” (Dkt. 12-1 at 27.) On January
3, 2018, the Appeals Council denied the request for an
extension of time, stating that Petitioner's attorney had
not presented good cause to justify the late filing.
filed a motion to dismiss on January 18, 2018, requesting
dismissal of Petitioner's action as untimely. (Dkt. 11.)
Alternatively, Respondent requests the Court dismiss
Petitioner's action for improper venue. (Dkt. 11.)
Petitioner's attorney filed a response explaining that
Respondent would not be prejudiced by the allowance of an
extension and that Petitioner should not be penalized for her
attorney's “highly regrettable failure to timely
file the claim.” (Dkt. 14.) Petitioner argues the
principle of equitable tolling should apply on the grounds
that there is minimal prejudice to Respondent for the delay.
Rule of Civil Procedure 12(b)(6) provides that a party may
move to dismiss a complaint on the grounds that it fails
“to state a claim upon which relief can be
granted.” To state a claim upon which relief can be
granted, a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In ruling on a motion to dismiss for failure to state
a claim, a court may consider not only the allegations of a
complaint, but also the exhibits attached thereto and any
concessions made by the plaintiff. Vasquez v.
Colvin, 2014 WL 5761133 (C.D. Cal. Nov.5, 2014) (citing
Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484
expiration of the statute of limitations is properly raised
as an affirmative defense in a responsive pleading.
Vernon v. Heckler, 811 F.2d 1274, 1278 (9th Cir.
1987); see also Fed. R. Civ. P. 8(c).
“However, a statute of limitations defense may be
raised in a motion to dismiss and a claim may be dismissed as
untimely ‘when the running of the statute is apparent
from the face of the complaint.'” Bolden v.
Colvin, No. 14CV1380 BEN JMA, 2015 WL 450522, at *2
(S.D. Cal. Feb. 3, 2015) (quoting Vernon at 1278).
“[S]uch a motion to dismiss should be granted only if
the assertions of the complaint, read with the required