See Pls.' Mem. Opp'n Mot. Dismiss 12-13. "When a state statute [of limitations] is borrowed, as here, the federal court will also borrow the state rules on tolling." Shook ex rel. Shook v. Gaston Cnty. Bd. of Educ., 882 F.2d 119, 121 (4th Cir. 1989); see Bd. of Regents v. Tomanio, 446 U.S. 478, 483 (1980). North Carolina has a special tolling provision that preserves actions until an individual is no longer a minor.
See Carter, 510 U.S. at 15, 114 S.Ct. 361. Standing doctrine requires that reimbursement should flow only to those who actually expend resources, whether it be the parents, see, e.g., Bernard v. Sch. Bd. of Norfolk, 58 F.Supp.2d 669, 672-75 (E.D.Va. 1999), or the child, see, e.g., Shook ex rel. Shook v. Gaston County Bd. of Educ., 882 F.2d 119, 122-23 (4th Cir. 1989). In the usual case, the parents of the disabled child will be the appropriate ones to seek reimbursement because they will have incurred the expense and suffered the subsequent monetary injury.
"When a state statute [of limitations] is borrowed . . . the federal court will also borrow the state rules on tolling." Shook ex rel Shook v. Gaston Cnty. Bd. of Educ., 882 F.2d 119, 121 (4th Cir. 1989); see Bd. of Regents v. Tomanio, 446 U.S. 478, 483-85 (1980); Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 580 (9th Cir. 2012). North Carolina has a special tolling provision that preserves actions until an individual is no longer a minor.
Thus, we hold the 60-day limitations period in § 150B-23 is the period associated with the state statute, § 115C-116, most analogous to the IDEA. We recognize that Shook v. Gaston County Bd. of Educ., 882 F.2d 119 (4th Cir. 1989), involves a limitations period in an IDEA case from North Carolina. That case, however, concerned a statute of limitations for filing an IDEA action in federal court, rather than statute of limitations for an administrative claim. Moreover, in Shook, the sole question was whether a disabled adult could bring an action to obtain reimbursement for special education services incurred while she was a minor.
Plaintiff does not show that he diligently pursued his rights as to these claims or that the requisite “extraordinary circumstances” for tolling the statute of limitations exist. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Hardin v. Straub, 490 U.S. 536, 538-39 (1985); Shook ex rel. Shook v. Gaston Cnty. Bd. of Educ., 882 F.2d 119, 121 (4th Cir. 1989). Further, his unfamiliarity with the law, lack of legal representation, and prior incarcerated status are insufficient grounds for tolling.
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” (citation omitted)); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (discussing tolling); Hardin v. Straub, 490 U.S. 536, 538-39 (1985) (noting § 1983 claims rely on state-law tolling provisions); Shook ex rel. Shook v. Gaston Cnty. Bd. of Educ., 882 F.2d 119,121 (4th Cir. 1989) (“When a state statute [of limitations] is borrowed... the federal court will also borrow the state rules on tolling.”)
” (citation omitted)); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (finding equitable tolling inappropriate when “the claimant failed to exercise due diligence in preserving his legal rights”); Hardin v. Straub, 490 U.S. 536, 538-39 (1985) (noting § 1983 claims rely on state-law tolling provisions); Shook ex rel. Shook v. Gaston Cnty. Bd. of Educ., 882 F.2d 119, 121 (4th Cir. 1989) (“When a state statute [of limitations] is borrowed ... the federal court will also borrow the state rules on tolling.”); cf. Misenheimer v. Burris, 360 N.C. 620, 622, 637 S.E.2d 173, 175 (2006)
; Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,96 (1990) (discussing tolling); Hardin v, Straub, 490 U.S. 536, 538 -39 (1985) (noting § 1983 claims rely on state-law tolling provisions); Shook ex rel. Shook v. Gaston Cnty. Bd. of Educ., 882 F.2d 119,121 (4th Cir. 1989) (“When a state statute [of limitations] is borrowed... the federal court will also borrow the state rules on tolling.”); see also Misenheimer v. Burris, 360 N.C. 620, 622, 637 S.E.2d 173, 175 (2006) (discussing state tolling provisions); Williams v. BCBS of NC, 357 N.C. 170,179,581 S.E.2d415,423 (2003)
Plaintiffs filings do not show that he has pursued his rights diligently as to these Pender C.I. claims, or that “extraordinary circumstances” needed for tolling the statute of limitations exist. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” (citation omitted)); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (discussing tolling); Hardin v. Straub, 490 U.S. 536, 538-39 (1985) (noting § 1983 claims rely on state-law tolling provisions); Shook ex rel. Shook v. Gaston Cnty. Bd. of Educ., 882 F.2d 119, 121 (4th Cir. 1989) (“When a state statute [of limitations] is borrowed ... the federal court will also borrow the state rules on tolling.”)
Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 389 (4th Cir. 2014). Finally, "[w]hen a state statute [of limitations] is borrowed . . . the federal court will also borrow the state rules on tolling." Shook ex rel Shook v. Gaston Cnty. Bd. of Educ., 882 F.2d 119, 121 (4th Cir. 1989); see Bd. of Regents v. Tomanio, 446 U.S. 478, 483-85 (1980); Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 580 (9th Cir. 2012). Smith's motion should be denied.