1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sherod August Bride, No. CV-22-08075-PCT-DJH 10 Plaintiff, ORDER 11 v. 12 Basin Western Incorporated, et al., 13 Defendants. 14 15 Pending before the Court is Defendant Basin Western Incorporated and Jacob 16 Thomas Koontz’s (“Defendants”) Motion to Dismiss (Doc. 4). Plaintiff Sherod Bride 17 (“Plaintiff”) filed a Response (Doc. 15). Defendants filed a Reply (Doc. 16). 18 I. Background1 19 This case concerns an automobile collision that occurred on January 10, 2020. 20 (Doc. 1-3 at ¶ 13). On January 20, 2022, two years and ten days after the applicable statute 21 of limitations expired, Plaintiff filed a Complaint alleging two counts of negligence and 22 negligence per se. (Id. at 3–5). On April 13, 2022, Plaintiff filed his First Amended 23 Complaint (“FAC”) with additional factual allegations and amended his second count to 24 failure to properly train and supervise. (Id. at 7–13). Plaintiff represents he sustained a 25 head trauma and brain injury from the collision and was “severely mentally incapacitated 26 until at least February 2022.” (Id. at ¶ 23). On May 5, 2022, Defendants moved to dismiss 27 Plaintiff’s FAC, arguing Plaintiff’s claims were time-barred under A.R.S. § 12–542 28 1 The Court will assume the FAC’s factual allegations are true, as it must in evaluating a motion to dismiss. See Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001). 1 because Plaintiff failed to file his Complaint within two years of the date of the automobile 2 collision.2 (Doc. 4 at 2). 3 II. Discussion 4 Defendants argue the claims in Plaintiff’s FAC are time-barred by A.R.S. § 12–542. 5 (Doc. 4 at 3–4). Defendants further contend equitable tolling does not apply here because 6 Plaintiff has insufficiently substantiated his claims of incapacitation. (Id.) In Response, 7 Plaintiff argues the statute of limitations for his tort claims did not start running until 8 February 2022 because until that time he was mentally incapacitated and of unsound mind. 9 (Doc. 1-3 at ¶ 25). He says his disability tolled the appliable statute of limitations such that 10 his causes of action are not time barred. (Doc. 15 at 4). 11 A. Equitable Tolling 12 As a federal court sitting in diversity, the Court applies the substantive law of 13 Arizona, including Arizona’s statute of limitations. Albano v. Shea Homes Ltd. P’ship, 14 634 F.3d 524, 530 (9th Cir. 2011). Arizona has a two-year statute of limitations for 15 personal injury claims. A.R.S. § 12-542(1). “[A] tort claim accrues when a plaintiff 16 knows, or through the exercise of reasonable diligence should know, of the defendant’s 17 wrongful conduct.” Taylor v. State Farm Mut. Auto. Ins. Co., 913 P.2d 1092, 1095 (Ariz. 18 1996). However, a statute of limitations is tolled if a would-be plaintiff is of “unsound 19 mind” when the cause of action accrues. Doe v. Roe, 955 P.2d 951, 963–64 (Ariz. 1998). 20 Only “after removal of the disability” will the period begin to run. Kopacz v. Banner 21 Health, 425 P.3d 586, 590 (Az. Ct. App. 2018). Unsound mind occurs when the “person 22 is unable to manage his affairs or to understand his legal rights or liabilities.” Id. 23 Under Ninth Circuit law, equitable tolling “is not generally amenable to resolution 24 on a Rule 12(b)(6) motion” because its application often depends on matters outside the 25 2 Although Defendants filed their Motion to Dismiss after Plaintiff filed his FAC, 26 Defendants seek dismissal of Plaintiff’s Complaint in their Motion. (Doc. 4). In their Reply, Defendants accurately seek dismissal of Plaintiff’s FAC. (Doc. 16 at 4). Because 27 the FAC supersedes the original Complaint, the Court will consider Defendants’ request to dismiss the FAC. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (finding it 28 is a “well-established doctrine that an amended pleading supersedes the original pleading”). 1 pleadings. Supermail Cargo, 68 F.3d 1204, 1206 (9th Cir. 1995) (quoting Cervantes v. 2 City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993)). Instead, the “issue is whether the 3 complaint, liberally construed in light of our ‘notice pleading’ system, adequately alleges 4 facts showing the potential applicability of the equitable tolling doctrine.” Cervantes, 5 5 F.3d at 1277; see also Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) 6 (noting that a motion to dismiss based on the running of the statute of limitations period 7 may be granted only “if the assertions of the complaint, read with the required liberality, 8 would not permit the plaintiff to prove that the statute was tolled”). 9 Here, Plaintiff alleges he was “severely mentally incapacitated until at least 10 February 2022.” (Doc. 1-3 at ¶ 25). Plaintiff alleges he “sustained a head trauma and brain 11 injury” and that “[he] is still not able to drive and has severe complications and memory 12 issues as a result of his traumatic brain injury.” (Doc. 1-3 at ¶¶ 20–28). Plaintiff also 13 attached an affidavit from his mother, wherein she states she has consented to serve as 14 Guardian ad Litem for him “to assist in the necessary decisions in this lawsuit.” (Doc. 15 15 at ¶ 2). She also states she has been his primary caretaker due to his mental limitations 16 from his brain injury and that Plaintiff was not permitted to be left alone for the first year 17 following his injury. (Id. at ¶ 3). The Court concludes Plaintiff has sufficiently alleged, 18 for purposes of overcoming a 12(b)(6) challenge, that principles of equitable tolling may 19 render his claims timely under Arizona law. See Supermail Cargo, 68 F.3d at 1207 (“[A] 20 complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove 21 no set of facts that would establish the timeliness of the claim.”). 22 For these reasons, Defendants’ Motion to Dismiss, which seeks dismissal solely 23 under A.R.S. § 12–542, is denied. 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly, 2 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Doc. 4) is || denied. 4 Dated this 7th day of December, 2022. 5 6 Do ee 7 norable'Diang/4. 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