O'Donnell v. Vencor Inc.

• Decision Date: 10 October 2006
• Docket Number: No. 05-15687.,05-15687.
• Parties: Alice Faye O'DONNELL, Plaintiff-Appellant, v. VENCOR INC., aka First Healthcare Corporation dba Kachina Point Health Center; Kachina Point Healthcare; Does, 1 through 25, inclusive; Red, White, and Blue Entities, Inclusive, Defendants-Appellees, and Kindred Nursing Center West, LLC, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

466 F.3d 1104

Alice Faye O'DONNELL, Plaintiff-Appellant, v. VENCOR INC., aka First Healthcare Corporation dba Kachina Point Health Center; Kachina Point Healthcare; Does, 1 through 25, inclusive; Red, White, and Blue Entities, Inclusive, Defendants-Appellees, and Kindred Nursing Center West, LLC, Defendant.

No. 05-15687.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 15, 2006.

Filed October 10, 2006.

Amended October 31, 2006.

Nicholle Harris and Aeryn Heidermann, Law Students, and Willie Jordan-Curtis, Supervising Attorney, University of Arizona, Tucson, AZ, for the plaintiff-appellant.

Thomas L. Hudson, Phoenix, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CV-01-01836-EHC.

Before WILLIAM C. CANBY, JR., DAVID R. THOMPSON, and MICHAEL DALY HAWKINS, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

PER CURIAM.

ORDER

The panel of judges named above amends, in the following manner, the per curiam opinion filed October 10, 2006:

A.

At slip opinion page 17370, delete the paragraph that begins at the top of the page with the words "O'Donnell originally timely filed her first complaint ..." and ends with the words "proceedings on O'Donnell's EPA claims." Replace that deleted paragraph with the following:

O'Donnell originally timely filed her first complaint asserting a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., ("Title VII"), and a claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., ("ADEA"). She filed that complaint within ninety days after the issuance of her right-to-sue letter by the EEOC. See 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e). The defendants thereafter filed for bankruptcy and an automatic stay was issued. The magistrate judge placed O'Donnell's case on inactive status and gave her 180 days to move to lift the stay, seek to reduce the claims against Defendant to judgment in the bankruptcy court, or otherwise demonstrate a reasonable basis to continue the case on inactive status. The magistrate judge warned O'Donnell that failure to comply would result in dismissal of her complaint for failure to prosecute under Federal Rule of Civil Procedure 41(b). Eleven days after the expiration of the 180-day period, O'Donnell filed an untimely motion seeking a continuance of her case on inactive status and requesting an informal status conference. After O'Donnell failed to appear at the status conference she had requested, the magistrate judge dismissed O'Donnell's complaint without prejudice under Rule 41(b). She did not appeal that dismissal.

After the bankruptcy automatic stay was lifted, O'Donnell filed a second complaint against the defendants on September 27, 2001, repeating her Title VII and ADEA claims. In an amendment to that second complaint, which amendment she filed December 1, 2003, O'Donnell advanced new claims under the Equal Pay Act, 29 U.S.C. § 206 ("EPA"). The district court dismissed O'Donnell's second complaint with prejudice, holding that her claims were time-barred and that she was not entitled to equitable tolling because her first action had been dismissed as a result of her own inaction. We affirm the district court's dismissal of O'Donnell's Title VII and ADEA claims, but reverse and remand for further proceedings on O'Donnell's EPA claims.

B.

At slip opinion page 17370, the following paragraphs are inserted immediately following I. Title VII and ADEA Claims:

I. Title VII and ADEA Claims

First, although the parties have not raised the issue, we sua sponte consider whether the magistrate judge's dismissal of O'Donnell's first complaint was void as being entered in violation of the automatic stay. Although "[t]he general rule is that actions taken in violation of an automatic stay are void," In re Sambo's Restaurants, Inc., 754 F.2d 811, 816 (9th Cir.1985) (citing 2 COLLIER ON BANKRUPTCY ¶ 362.11 (15th ed.1984)), here the dismissal for failure to prosecute was not void because it did not constitute a "continuation" of a judicial proceeding against the debtor under 11 U.S.C. § 362(a)(1).

In dismissing O'Donnell's first complaint under Rule 41(b), the magistrate judge was not required "to consider other issues presented by or related to the underlying case." Dean v. Trans World Airlines, Inc., 72 F.3d 754, 756 (9th Cir.1995). In addition, "there was no conceivable way for the court's consideration of the [Rule 41(b) dismissal] to harm the bankrupt [Vencor]." Id. at 756-57. Furthermore, the dismissal was "consistent with the purpose of [section 362(a)]" because it did not intrude on Vencor's "breathing space" or threaten other creditors by giving preference to O'Donnell. Indep. Union of Flight Attendants v. Pan Am. World Airways, Inc., 966 F.2d 457, 459 (9th Cir.1992) (order). Finally, we note that this court in Independent Union of Flight Attendants explicitly adopted the rationale articulated by the Eighth Circuit in Dennis v. A.H. Robins Co., where the Eighth Circuit held that the district court has the power to dismiss a case for docket management purposes under Rule 41(b) notwithstanding an automatic stay. Indep. Union of Flight Attendants, at 458-59 ("[T]he Eighth Circuit has held that § 362(a) does not `preclude another court from dismissing a case on its docket or ... affect the handling of a case in a manner not inconsistent with the purpose of the automatic stay.'" (quoting Dennis v. A.H. Robins Co., 860 F.2d 871, 872 (8th Cir.1988) (per curiam))). Thus, the magistrate judge's dismissal of O'Donnell's first action under Rule 41(b) does not constitute a "continuation" of a judicial proceeding under 11 U.S.C. § 362(a)(1) such that it is void for having violated the automatic stay.

While we could have considered whether the magistrate judge abused his discretion in dismissing O'Donnell's first complaint had O'Donnell filed an appeal after the automatic stay was lifted, she failed to file such an appeal. See DeLange v. Dutra Const. Co., 183 F.3d 916, 919 n. 2 (9th Cir.1999) (noting that district courts have "broad discretion in interpreting and applying their local rules"); Big Bear Lodging Ass'n. v. Snow Summit, Inc., 182 F.3d 1096, 1106 (9th Cir.1999) (applying abuse of discretion standard to district court's decision to impose sanctions pursuant to local rule). Therefore, we review only the dismissal of O'Donnell's second complaint.

C.

At slip opinion page 17370, delete the sentence that appears in the per curiam opinion filed October 10, 2006 immediately following I. Title VII and ADEA Claims, which sentence reads as follows: "O'Donnell's claims under Title VII and the ADEA are untimely because she filed her second complaint more than ninety days after the EEOC's issuance of her right-to-sue letter." In place of that deleted sentence, insert: "The Title VII and the ADEA claims asserted in O'Donnell's second complaint are untimely, however, because she filed her second complaint more than ninety days after the EEOC's issuance of her right-to-sue letter."

Petitions for rehearing or rehearing en banc may be filed.

OPINION

Pro se plaintiff-appellant Alice Faye O'Donnell ("O'Donnell") appeals the district court's dismissal of her employment discrimination claims as time-barred. O'Donnell asserts that the district court should have applied the doctrines of equitable tolling, equitable estoppel, or laches to excuse her filing her second action after the statute of limitations had expired.

We review de novo whether a claim is barred by a statute of limitations. See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir.2000). Because the facts here are undisputed, we review de novo whether to apply equitable tolling. See id. We review for an abuse of discretion the district court's decision whether to apply equitable estoppel. See id. at 1176. We review de novo whether laches is available as a matter of law and for an abuse of discretion the district court's decision whether to apply laches to the facts. See In re Beaty, 306 F.3d 914, 920-21 (9th Cir.2002).

O'Donnell originally timely filed her first complaint asserting a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., ("Title VII"), and a claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., ("ADEA"). She filed that complaint within ninety days after the issuance of her right-to-sue letter by the EEOC. See 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e). The defendants thereafter filed for bankruptcy and an automatic stay was issued. The magistrate judge placed O'Donnell's case on inactive status and gave her 180 days to move to lift the stay, seek to reduce the claims against Defendant to judgment in the bankruptcy court, or otherwise demonstrate a reasonable basis to continue the case on inactive status. The magistrate judge warned O'Donnell that failure to comply would result in dismissal of her complaint for failure to prosecute under Federal Rule of Civil Procedure 41(b). Eleven days after the expiration of the 180-day period, O'Donnell filed an untimely motion seeking a continuance of her case on inactive status and requesting an informal status conference. After O'Donnell failed to appear at the status conference she had requested, the magistrate judge dismissed O'Donnell's complaint without prejudice under Rule 41(b). She did not appeal that dismissal.

After the bankruptcy automatic stay was lifted, O'Donnell filed a second complaint against the defendants on September 27, 2001, repeating her Title VII and ADEA claims. In an amendment to that second complaint, which amendment she filed December 1, 2003, O'Donnell advanced new claims under the Equal Pay Act, 29 U.S.C. § 206 ("EPA"). The district court dismissed O'Donnell's second complaint with prejudice, holding that her claims were time-barred and that she was not entitled to...