Atkins v. Union Pacific R. Co., 83-4272
| Decision Date | 11 February 1985 |
| Docket Number | No. 83-4272,83-4272 |
| Citation | 753 F.2d 776 |
| Parties | John M. ATKINS, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James J. Roberson, Lake Oswego, Or., for plaintiff-appellant.
Austin W. Crowe, Jr., Cosgrave & Kester, Portland, Or., for defendant-appellee.
Appeal from the United States District Court District of Oregon.
Before KILKENNY, GOODWIN and SKOPIL, Circuit Judges.
This appeal marks the second time this case has been before this court. See Atkins v. Union Pac. R., 685 F.2d 1146 (CA9 1982). We affirm.
In our prior decision, we established a three-prong test for determining whether the railroad should be estopped from asserting the statute of limitations as an affirmative defense. 685 F.2d at 1149. The third of these conjunctive prongs was whether Atkins had relied on the railroad's assurances that Atkins' claim would be settled. Id. This part of the test was based on our finding "that plaintiff has alleged facts which, if true, would estop defendant from asserting the statute." Id. Two of those facts accepted as true for purposes of the appeal were that Atkins had made a settlement counteroffer which the railroad had under consideration at the time the statute ran, and that Atkins had relied on the railroad's pursuit of a settlement. 685 F.2d at 1148.
Atkins admitted, both on cross-examination and on close questioning from the bench, that the discussion of the $50,000.00 figure following his rejection of the railroad's offer of $20,000.00 was not intended as a counteroffer. Thus, there was no outstanding and unresponded-to counteroffer at the time of the statute's running. Further, plaintiff's actions in promptly retaining the services of several different attorneys over the space of three and one-half years clearly manifested an intent not to rely blindly and naively on the railroad to settle his claim.
In order to assert successfully the doctrine of equitable estoppel, a plaintiff must show that the defendant's conduct was so misleading as to have caused the plaintiff's failure to file suit. Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 234-35, 79 S.Ct. 760, 762-63, 3 L.Ed.2d 770 (1959). More to the point, equitable estoppel will not apply to a claim such as this one unless the plaintiff shows either (1) an affirmative statement that the statutory period to bring the action was longer than it...
To continue reading
Request your trial
-
Serafin v. William C. Earhart Co.
...1010, 1016 (9th Cir. 1998) (citing Scholar v. Pacific Bell, 963 F.2d 264, 267-68 (9th Cir. 1992)). Plaintiff cites Atkins v. Union Pac. R. Co., 753 F.2d 776 (9th Cir. 1985), in support of his argument. There, the court held that "equitable estoppel will not apply . . . unless the plaintiff ......
-
Cerney v. Norfolk & W. Ry. Co.
...Glus v. Brooklyn E. Dist. Terminal (1959), 359 U.S. 231, 233, 79 S.Ct. 760, 762, 3 L.Ed.2d 770, 772. In Atkins v. Union Pacific RR. Co. (C.A.9, 1985), 753 F.2d 776, the court "[E]quitable estoppel will not apply to a claim such as this one unless the plaintiff shows either (1) an affirmativ......
-
Maurer v. Trans World Airlines, Inc.
...did not bring the threatened suit; or (3) similar representations or conduct on the part of the defendants. Atkins v. Union Pacific Railroad Co., 753 F.2d 776, 777 (9th Cir.1985); Kavowras v. New York Times Co., 328 F.3d 50, 56 (2d Cir.2003). Having failed to point to a misrepresentation by......
-
Bell v. Donnan (In re Donnan)
...and conduct. Burke v. Gateway Clipper, Inc., 441 F.2d 946, 949 (3d Cir.1971) (footnotes omitted); see also Atkins v. Union Pacific Railroad Co., 753 F.2d 776, 777 (9th Cir.1985); Sanchez v. Loffland Bros. Co., 626 F.2d 1228, 1231 (5th Cir.1980), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 6......