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Kindschy v. Berryhill

United States District Court, D. Idaho

March 30, 2018

DARCY ARRIOLA KINDSCHY, Petitioner,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.

          MEMORANDUM DECISION AND ORDER

          HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Pending 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).

         The Court will dismiss the petition for review, for the reasons explained below.

         STATEMENT OF FACTS

         Petitioner 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).

         The 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.[1] (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.

         Petitioner 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.)

         Petitioner's 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. Id.

         Respondent 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.

         DISCUSSION

         1. Legal Standard

         Federal 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.”[2] 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 (9th Cir.1995)).

         Generally, 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 ...


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