Mitchell v. Office Depot Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CHANTEL MITCHELL,
Plaintiff,
v.
OFFICE DEPOT, INC.,
Defendant.
Case No. 3:22-cv-00183-SLG-KFR
ORDER RE FINAL FINDINGS AND RECOMMENDATIONS ON MOTION TO
DISMISS UNDER 12(b)(6)
Before the Court at Docket 23 is Defendant’s Rule 12(b)(6) Motion to
Dismiss. The motion was referred to the Honorable Magistrate Judge Kyle F.
Reardon. At Docket 29, Judge Reardon issued his Findings and
Recommendations on Motion to Dismiss Under 12(b)(6) in which he recommended
that the motion be granted. Plaintiff filed objections to the Findings and
Recommendations at Docket 30 to which Defendant filed a reply at Docket 31.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” That statute
also provides that the district court is to “make a de novo determination of those
portions of the magistrate judge’s report or specified proposed findings or
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Order re Final Report and Recommendation
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recommendations to which objection is made.”1 However, § 636(b)(1) does not
“require district court review of a magistrate’s factual or legal conclusions, under a
de novo or any other standard, when neither party objects to those findings.”2
The magistrate judge recommended that the Court grant the Rule 12(b)(6)
Motion to Dismiss. On de novo review, the Court responds to Ms. Mitchell’s
objections as follows:
Plaintiff objects that the Magistrate Judge determined that the fact that
Plaintiff tested positive for Covid-19 on July 16, 2022, then isolated for five days
thereafter, when the limitations period ended on July 31, 2022, was not sufficiently
extraordinary to warrant equitable tolling of the limitations period. But this Court
agrees with the Magistrate Judge that Ms. Mitchell has not presented sufficient
facts that demonstrate that the five-day quarantine and her continuing symptoms
she experienced after she returned to work precluded her from initiating this action
before the deadline. Ms. Mitchell states that she “believes that contracting the
virus Covid-19 (that caused the pandemic) should constitute as proof” sufficient to
excuse her late filing.3 But this Court disagrees and instead agrees with the
Magistrate Judge and the numerous other courts that have addressed this issue
that the Covid-19 pandemic does not automatically warrant equitable tolling;
1 Id.
2 Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
3 Docket 30 at 5.
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Case No. 3:22-cv-00183-SLG-KFR, Mitchell v. Office Depot, Inc.
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rather, a plaintiff must show that her illness was so severe that it rendered her
unable to manage her affairs prior to filing deadline, thereby preventing her from
timely filing her claim.4
Plaintiff also asserts that the Magistrate Judge misinterpreted her filings
when he states, “by Plaintiff’s own admission she was working during this period,
attempting to hire an attorney, and conducting legal research.”5 On de novo
review, the Court acknowledges that Ms. Mitchell was working full time, and also
attempting to hire an attorney and conducting legal research during the
approximate 75 days the clock was running before she contracted Covid-19; she
then returned to full time work after her five-day quarantine ended in late July.
Plaintiff’s assertion that she was able to return to work full time in late July
after the five-day quarantine ended and before the 90-day deadline had passed is
at odds with her assertion in her objections that she was totally incapable of filing
her claim by the July 31, 2022 deadline.
Plaintiff also objects to the Magistrate Judge’s finding that Plaintiff’s stated
intention from the outset to file her complaint during the last week of the deadline
constitutes “evidence of procrastination,” not evidence of diligent pursuit of one’s
4 See Docket 29 at 8 (collecting cases).
5 Docket 30 at 5 (citing Docket 29 at 9).
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Order re Final Report and Recommendation
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claims.6 But on de novo review, the Court agrees with the Magistrate Judge that
planning to wait until the last week to file a complaint is not evidence of diligence.
For the foregoing reasons, on de novo review, Plaintiff’s objections to the
Magistrate Judge’s report are all overruled. The Court has reviewed the balance
of the Findings and Recommendations on Motion to Dismiss Under 12(b)(6) and
agrees with its analysis. Accordingly, the Court adopts the Findings and
Recommendations, and IT IS ORDERED that the Rule 12(b)(6) Motion to Dismiss
is GRANTED. This case is DISMISSED. Further, because the complaint cannot
be saved by any amendment, this dismissal is with prejudice.7
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 19th day of December, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
6 Docket 30 at 8 (citing Docket 29 at 10).
7 See Dumas v. Kipp, 90 F.3d 386, 292 (9th Cir. 1996) (“where amendment would be futile, a claim
is properly dismissed with prejudice”).
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