Udom v. Fonseca
| Decision Date | 20 May 1988 |
| Docket Number | No. 87-6231,87-6231 |
| Citation | 846 F.2d 1236 |
| Parties | Bassey UDOM, Plaintiff-Appellant, v. Daniel FONSECA, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas E. Beck, Los Angeles, Cal., for plaintiff-appellant.
Dennis I. Floyd, Burke, Williams & Sorensen, Los Angeles, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before HUG, KOZINSKI and THOMPSON, Circuit Judges.
In this appeal we consider two questions: (1) what is the proper procedure for raising a claim that the applicable statute of limitations has been tolled; and (2) whether the district court abused its discretion in dismissing the case without prejudice because plaintiff did not file an amended complaint within the time allotted to him.
This appeal arises out of a civil rights suit brought by plaintiff against the City of Bell, the City of Cudahy, the council members of both cities, Bell-Cudahy's Chief of Police, and several individual police officers. Bassey Udom, an immigrant from Nigeria, claims that on December 17, 1984, he was accosted by three police officers while in the City of Bell. Plaintiff alleges that he was beaten by these three officers and shot with an electronic stun gun called a Tazer. Plaintiff also alleges a conspiracy to deprive him of his civil rights, claiming that each predicate act of this conspiracy was part of the policies, customs and practices of the Cities of Bell and Cudahy, and of the Bell-Cudahy police department.
Defendants did not file an answer to Udom's complaint; instead, they moved to dismiss, arguing that plaintiff's claim was time-barred under California's one-year statute of limitations. The district court granted the motion on June 1, 1987, and announced that it would dismiss plaintiff's claims without prejudice. The court gave plaintiff 30 days to amend his complaint to state any claims he might have that were not time-barred.
On June 11, 1987, plaintiff filed a motion for reconsideration of the district court's dismissal. Relying on Cal.Gov't Code Sec. 945.3 (West Supp.1988), Plaintiff asserted, for the first time, that the limitations period should have been tolled until the conclusion of the criminal proceedings against him. On June 30, 1987, the day before the second amended complaint was due, and while the motion for reconsideration was still pending, plaintiff sought an extension of time to file the second amended complaint. The motion was denied on July 1, 1987. Undaunted, plaintiff attempted to file the amended complaint on July 6. The clerk refused to file the complaint and returned it to plaintiff.
A hearing was held on the motion for reconsideration on July 13. The district court denied plaintiff's motion for reconsideration, refused plaintiff permission to file its second amended complaint, and dismissed all the claims with prejudice for failure to file a timely amended complaint.
A. Having held plaintiff's claims barred by the statute of limitations, the district court properly granted him leave to amend in order to state any claims that were not time-barred. See, e.g., Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.1988) (); Mayes v. Leipziger, 729 F.2d 605, 608-09 (9th Cir.1984); Wilburn v. Pepsi-Cola Bottling Co., 492 F.2d 1288, 1290-91 (8th Cir.1974); see also 5 C. Wright & A. Miller, Federal Practice & Procedure Sec. 1357, at 611-13 (1969). The court also properly rebuffed plaintiff's attempts to raise the defense of tolling by way of a motion for reconsideration. In order to invoke the benefit of tolling, the plaintiff must allege facts that, if believed, would provide a basis for tolling. Such facts must normally be alleged in the complaint, rendering it impervious to a motion to dismiss based on a statute of limitations defense. If plaintiff wanted to claim the benefits of Cal.Gov't Code Sec. 945.3, he should have taken advantage of the 30 days allotted to him to amend his complaint.
Plaintiff failed to do this. He raised the tolling argument by way of a motion for reconsideration instead. But this was an inadequate substitute for amending the complaint. In effect, plaintiff was attempting to expand the scope of his complaint by making allegations in a collateral document not subject to counter by means of an answer or motion to dismiss. The district court was therefore perfectly justified in rejecting the motion for reconsideration and standing by its earlier ruling dismissing the complaint as time-barred.
B. The district court erred, however, in refusing to grant plaintiff leave to file the amended complaint late and then dismissing the case with...
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