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tolling warranted where pro se litigant argued that defendants' "negligence and fraud" plausibly may have prevented plaintiff from filing timely action, in part because pro se litigants need not be "more specific" about why equitable tolling should apply in order to avoid dismissal pursuant to Rule 12(b)
Summary of this case from Voltaire v. Westchester Cnty. Dep't of Soc. Servs.Opinion
No. 07-5416-cv.
November 20, 2008.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the district court's judgment is VACATED and the case is REMANDED for further proceedings.
FOR PLAINTIFF-APPELLANT: DOROTHY BISSON, pro se, West Babylon, NY.
FOR DEFENDANTS-APPELLEES: MICHAEL G. KRUZYNSKI, Lewis Johs Avallone Aviles, LLP, Riverhead, NY.
SCOTT G. CHRISTESEN, Fumuso, Kelly, DeVerna, Snyder, Swart Farrell, LLP, Hauppage, NY.
PRESENT: Hon. John M. Walker, Jr., Hon. Barrington D. Parker, Hon. Reena Raggi, Circuit Judges.
Plaintiff-Appellant Dorothy Bisson, pro se, appeals from a judgment of the United States District Court for the Eastern District of New York (Feuerstein, J.), dismissing her complaint against Defendants-Appellees Martin Luther King Jr. Health Clinic, Good Samaritan Hospital Mammogram and Breast Diagnostics, Nassau Suffolk OB/GYN, and Rebecca Bezalel, M.D. (collectively, "Defendants") as time-barred under New York law. We assume the parties' familiarity with the case's underlying facts, procedural history, and issues on appeal.
We review a district court's dismissal of a complaint on the pleadings de novo, "construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). "Moreover, we read the pleadings of apro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted). However, this does not exempt pro se parties from compliance with the relevant rules of procedural and substantive law. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Like any other complaint, a pro se complaint, "[t]o survive a motion to dismiss, . . . must plead 'enough facts to state a claim to relief that is plausible on its face.'" Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007)).
The district court found, and Bisson now concedes, that New York law applies to this case. Under New York law, medical malpractice claims must be filed within two years and six months of the accrual of the action, which here is the final date of the treatment at issue. N.Y. C.P.L.R. 214-a. For personal injury claims, the statute of limitations under New York law is three years from the date of the injury. N.Y. C.P.L.R. 214(5); Snyder v. Town Insulation, Inc., 615 N.E.2d 999, 1000 (N.Y. 1993). Bisson filed her complaint on December 16, 2006, more than three years after she was last treated by any of the Defendants, and the district court accordingly dismissed the case as time-barred.
However, "[u]nder New York law, the doctrines of equitable tolling or equitable estoppel 'may be invoked to defeat a statute of limitations defense when the plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action.'" Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (quoting Doe v. Holy See (State of Vatican City), 793 N.Y.S.2d 565, 568 (App.Div. 2005)). Bisson argues that her case warrants equitable tolling because the Defendants' "negligence and fraud" prevented her from discovering her condition until after the relevant limitations period had passed, because they told her "to come in for a follow up after the statutory period [had] expired." Appellant's Br. at 3. Bisson is not more specific as to why equitable tolling should apply, but — especially as a pro se litigant — she does not need to be in order to avoid 12(b)(6) dismissal. Though Bisson will need to further develop her claims and the factual record in order to sustain this theory (and her case) through subsequent stages of litigation, her allegation that the Defendants' actions "[d]elayed my diagnosis of [b]reast [c]ancer by years" is enough to survive the Defendants' motion to dismiss. Compl. 1. It is plausible that the Defendants, by telling Bisson that she did not need a follow-up visit for four years, fraudulently or deceptively delayed her discovery of her condition and, in turn, prevented her from filing a timely action.
Bisson did not raise this argument in the district court, so the court's error is understandable. However, the general rule that we avoid considering new arguments brought up before us for the first time is one of prudence and not jurisdiction, and "we retain considerable discretion to decide questions not raised initially in the district court." Austin v. Healey, 5 F.3d 598, 601 (2d Cir. 1993). We feel such discretion is deserved here.
If Bisson intends to proceed, she is well-advised to retain counsel (who may act on a contingency fee basis) or, if appropriate, to apply to the court for pro bono assignment.
For the foregoing reasons, the district court's judgment is VACATED and the case is REMANDED for further proceedings.