Opinion
Civil Action No. 3:00-CV-1509-L
June 12, 2001
MEMORANDUM OPINION AND ORDER
Before the court are a Rule 12(b) Motion to Dismiss, Including First Its Personal Jurisdiction Challenge, Alternative Motion for More Definite Statement and Brief in Support of Both ("Gordon Motion") filed by Defendants Fetterly Gordon, P.A. and Gary J. Gordon ("Gordon Defendants") on August 29, 2000; a Motion to Dismiss for Failure to State a Claim, Motion for Sanctions, and Brief in Support Thereof ("Roundtree Motion") filed by Defendant Holly C. Roundtree-Spies ("Roundtree") on August 29, 2000; Plaintiffs' Motion for Extension of Time, filed September 26, 2000; Plaintiffs' Motion for Mediation, filed October 25, 2000; and Plaintiffs' Motion for Leave to File Response, filed November 2, 2000. After careful consideration, and for the following reasons, the court grants Plaintiffs' Motion for Leave to File Response, denies as moot Plaintiffs' Motion for Extension of Time, grants in part and denies in part as moot the Gordon Motion, grants in part and denies in part without prejudice the Roundtree Motion, and denies as moot Plaintiffs' Motion for Mediation. I. Plaintiffs' Response to Gordon Motion
Plaintiffs' Complaint was filed on July 13, 2000 against three Defendants: Fetterly Gordon, P.A. ("FG"); Gary J. Gordon; and Roundtree. On August 29, 2000 two separate defense motions were filed, as noted above. The deadline for a response by Plaintiffs to these two motions, under Local Rule 7.1, was September 21, 2000. No response was filed by that date; instead, Plaintiffs filed a Motion for Extension of Time on September 26, 2000, five days after the deadline. As described in the court's Order of October 10, 2000, the Motion for Extension of Time is construed as applicable only to the response to the Gordon Motion, as a separate agreed motion was granted to extend the time for the response to the Roundtree Motion. The Gordon Defendants filed an opposition to the Motion for Extension of Time and to the Motion for Leave to File Response,
With respect to a deadline imposed by the Local Rules such as that for responding to the Gordon Motion, the court
for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Fed.R.Civ.P. 6(b). The Gordon Defendants argue that Plaintiffs have not demonstrated that their failure to request an enlargement of time before the expiration of the deadline was due to "excusable neglect." The court further notes that in the Motion for Extension of Time, Plaintiffs asked for an extension until October 23, 2000, but they did not actually submit the proposed response until November 2, 2000, with their Motion for Leave to File Response. While the court has serious doubts whether Plaintiffs have demonstrated excusable neglect, out of an abundance of caution and a preference for determining substantive issues on the basis of a full hearing of both parties, the court grants Plaintiffs' Motion for Leave to File Response and denies as moot Plaintiffs' Motion for Extension of Time.
Plaintiffs have not followed proper procedure for a motion for leave to file. The court applies the same requirements to a motion for leave to file as a motion for leave to amend. That is, "[a] party who moves for leave to file [a late response] must attach a copy of the proposed [filing] as an exhibit to the motion. The party must also submit with the motion an original and a second copy of the proposed [filing]. The original and second copy must neither be physically attached to the motion nor made exhibits to the motion. The original of the proposed [filing] must contain the original signature of the signing attorney." Local Rule 15.1. This requirement then allows the proposed brief to be filed immediately upon the court's granting the motion, and ensures that the brief filed is the same as considered by the court in ruling on the motion for leave to file. Plaintiffs filed a copy of their proposed response as an exhibit to the Motion for Leave to File Response, but did not submit a separate original and second copy.
Because the proposed response is at least in the record as an exhibit to the Motion for Leave to File Response, and to avoid further delay, the court will not require Plaintiffs to formally file the response but will consider the proposed response, submitted with the Motion for Leave to File Response, in its consideration of the Gordon Motion, as though the response had been formally filed. The court also concludes that it has received an adequate explication of the arguments by the Gordon Defendants with respect to their motion. Accordingly, they need not file a reply to Plaintiffs' response, and the court will proceed to a consideration of the Gordon Motion and the Roundtree Motion. II. Motions to Dismiss A. Factual and Procedural Background
On a Rule 12(b)(6) motion to dismiss, the court accepts the plaintiffs' factual allegations as true. Buckley v. Fitzsimmons, 509 U.S. 259, 261 (1993); Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000).
Plaintiff Frank John Stangel ("Stangel") and Defendant Roundtree are residents of Texas. The other Plaintiff, Frank J. Stangel Associates, Inc. ("SA"), and the Gordon Defendants are residents of Minnesota. This case has its origins in December 1991, during the course of a lawsuit in Minnesota state court. The Gordon Defendants represented Plaintiffs in making a claim against the Minnetonka Shopping Plaza in Excelsior, Minnesota, and other defendants. Plaintiffs' claims in this lawsuit (the "shopping center lawsuit") arose from a 1984 fire at the shopping center which destroyed Plaintiffs' retail establishment. The Gordon Defendants hired Roundtree as an economic expert to testify at trial as to the amount of damages. Plaintiffs reached settlement with one defendant, in the amount of $100,000, before trial. During the trial, the Gordon Defendants made a motion to withdraw as counsel based on alleged improper conduct by Stangel. After the judge indicated that, if he granted the motion to withdraw, he would probably declare a mistrial and assess costs against Stangel, Plaintiffs (allegedly under duress based on the judge's comments) accepted a settlement offer of $10,000 from the remaining defendants. Plaintiffs contend that the reasonable value of their claims against the remaining defendants was at least $1,000,000. FG asserted a lien on the settlement proceeds for unpaid costs and fees; the trial court, on motion by the defendants in the shopping center lawsuit, partitioned the settlement proceeds. Plaintiffs moved for a new trial, and appealed the denial thereof to the Minnesota Court of Appeals and the Minnesota Supreme Court, but were unsuccessful.
On September 11, 1993, Stangel filed a Chapter 13 bankruptcy proceeding ("the first bankruptcy case"). FG successfully sought a motion to modify the bankruptcy stay in order to liquidate their lien against the $10,000 settlement proceeds from the Minnesota lawsuit. Stangel's bankruptcy case was dismissed on September 29, 1993; shortly thereafter, in a separate action ("the foreclosure action"), a court granted FG a order foreclosing its interest in the settlement proceeds. The Gordon Defendants also returned Plaintiffs' files relating to the shopping center lawsuit. Stangel appealed the dismissal of the first bankruptcy case, which was affirmed by the Fifth Circuit on September 25, 1995. Stangel filed another Chapter 13 bankruptcy proceeding ("the second bankruptcy case") on February 2, 1996, which is pending.
Plaintiffs filed this suit on July 13, 2000, asserting claims against all Defendants for breach of fiduciary duty, professional malpractice, and breach of contract. Roundtree moves to dismiss the claims against her for failure to state a claim upon which relief can be granted, because: 1) the Complaint fails to set forth the essential elements of the claims; 2) the relevant statutes of limitation bar the claims; and 3) contract-based claims cannot survive because Roundtree's contract was with FG rather than with Plaintiffs. The Gordon Defendants move for dismissal, asserting that: 1) Stangel has no standing to bring the suit; 2) because Stangel has no capacity to bring the suit as related to the second bankruptcy case, the court lacks subject matter jurisdiction; 3) this court does not have personal jurisdiction over the Gordon Defendants; 4) venue is improper in this district; and 5) the Complaint fails to state a claim upon which relief can be granted because the statutes of limitations have expired. Because both motions raise the statute of limitations issue, the court addresses it first.
The Complaint asserts federal jurisdiction pursuant to 28 U.S.C. § 1334(b), which grants district courts "original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11." The Gordon Defendants do not argue that this lawsuit is not "related to" a bankruptcy proceeding, but they contend that the bankruptcy trustee is the only person with standing to assert such a bankruptcy-related proceeding. They argue that, since Stangel has no standing to bring an action pursuant to § 1334(b) and there is no federal question or diversity jurisdiction, the court lacks subject matter jurisdiction. Because Plaintiffs' assertions of personal jurisdiction over the Gordon Defendants and proper venue in this district rely on subject matter jurisdiction under § 1334(b), the Gordon Defendants also contest personal jurisdiction and venue. As noted below in the discussion of equitable tolling, the court concludes that Stangel does have standing to bring this action and therefore the court has subject matter jurisdiction.
B. Standard of Review
A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas AM University System, 111 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46(1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the face of the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
C. Statute of Limitations
As a threshold issue, the court determines the appropriate law under which to analyze these claims. "A federal district court must follow the choice-of-law rules of the state in which it sits." Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 704 (5th Cir. 1999), cert. denied, 121 S.Ct. 275 (2000). Texas courts undertake choice of law analysis only if necessary, that is, if the choice affects the issue to be decided. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex. 1984); Saint Paul Surplus Lines Ins. Co. v. Geo Pipe Co., 25 S.W.3d 900, 903 n. 2 (Tex.App.-Houston [1st Dist.] Aug. 10, 2000, pet. filed). The parties identify two potential fora for determining the appropriate statute of limitations, Minnesota and Texas. As the following discussion shows, the choice would not affect the court's determination and the court therefore does not reach the issue of which state's law governs.
Plaintiffs assert — with no supporting facts, argument, or authority — that Minnesota law controls this action. The court seldom finds such bald assertions persuasive, and this is no exception.
The statute of limitations under Minnesota law for all of Plaintiffs' claims is six years. Minn. Stat. § 541.05(1); Anoka Orthopaedic Associates, Inc. v. Mutschler, 773 F. Supp. 158, 169 (D. Minn. 1991). Under Texas law, the statute of limitations is four years for breach of contract and two years for breach of fiduciary duty. Martinez Tapia v. Chase Manhattan Bank, N.A., 149 F.3d 404, 411 (5th Cir. 1998); Morriss v. Enron Oil Gas Co., 948 S.W.2d 858, 869 (Tex.App. — San Antonio 1997, no writ); Tex. Civ. Prac. Rem. Code Ann. §§ 16.003, 16.004 (West Supp. 2000). To the extent based on legal malpractice, however, the applicable statute of limitations is only two years. "[A] two-year statute of limitations governs legal-malpractice claims, whether they sound in tort, contract, or other theory." Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001). Under either state's laws, then, the statute of limitations for Plaintiffs' claims does not exceed six years.
"A cause of action generally accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy." Johnson Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998). "In general, the limitations period begins to run when a cause of action 'accrues,' that is, when the action can be brought without being subject to dismissal for failure to state a claim." Wittmer v. Ruegemer, 419 N.W.2d 493, 495-96 (Minn. 1988). A cause of action against attorneys and accountants for malpractice, under Minnesota law, begins to run on the last date of negligence. Anoka Orthopaedic Associates, 771 F. Supp. at 169. Because the events upon which this action is based took place in December 1991 and the suit was filed on July 13, 2000, the statute of limitations had expired, and Plaintiffs' claims are barred unless the limitations period is tolled for some reason. Plaintiffs assert that the Complaint alleges facts sufficient to equitably toll the statutes of limitations, but they cite absolutely no statutory or case law authority for such equitable tolling. The court therefore begins by reviewing tolling principles for Texas and Minnesota law.
Texas recognizes tolling based on the discovery rule and for fraudulent concealment, both of which result in tolling the limitations period only until the plaintiff discovers or should have discovered the relevant facts. Computer Associates Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455-56 (Tex. 1996). Minnesota law provides for tolling limitations periods for fraudulent concealment, but does not recognize a "discovery rule." Hermann v. McMenomy Severson, 590 N.W.2d 641, 643 (Minn. 1999). It is clear from the Complaint, however, that Plaintiffs were fully aware of their alleged injury at the time it occurred, and therefore are not entitled to tolling based on either of these doctrines.
Texas also recognizes a specialized tolling rule for legal malpractice claims, as developed in Hughes v. Mahaney Higgins, 821 S.W.2d 154 (Tex. 1991). That rule tolls the statute of limitations until appeals are exhausted on the underlying claim, but does not apply to malpractice claims against accountants. Apex Towing, 41 S.W.3d at 121-22. Minnesota courts have discussed a comparable "continuous representation" doctrine for legal malpractice claims, tolling the statute of limitations during the attorney-client relationship, although the Minnesota Supreme Court has not yet adopted the rule. Fletcher v. Zellmer, 909 F. Supp. 678, 684-85 (D. Minn. 1995), aff'd, 105 F.3d 662 (8th Cir. 1997). Even if the statute of limitations were tolled under Texas or Minnesota law as to legal malpractice claims, however, the Complaint indicates that the attorney-client relationship terminated in 1991, and appeals in the shopping center lawsuit were exhausted on February 9, 1993. Under either measure, that is more than six years before this lawsuit was filed, and therefore the statute of limitations would have expired in any event.
Plaintiffs response to the Gordon Motion states that "[t]he finality of the February 9, 1993 decision of the Minnesota Supreme Court was not finally resolved until September 25, 1995, when the Fifth Circuit affirmed the dismissal of Case No. 392-38113." The court disagrees. The case which was appealed to the Fifth Circuit was the dismissal (on September 29, 1993) of Stangel's Chapter 13 bankruptcy case, which was not filed until September 11, 1993 — over seven months after the Minnesota Supreme Court denied his appeal in the shopping center lawsuit. Plaintiffs have offered no explanation or support for a bankruptcy court's authority to overturn a state court decision which was final before the bankruptcy petition was even filed, or for the Fifth Circuit's authority to hear an appeal from a decision by the Minnesota Supreme Court.
There are three different cases involved in this argument: the shopping center lawsuit, the first bankruptcy case, and the foreclosure action. The relief that Plaintiffs seek relates to the shopping center lawsuit. Defendants were not involved in representing Plaintiffs in the other two cases. Although there is some minor overlap of operative facts, the court concludes that such does not justify extending the rule of Hughes to toll claims relating to alleged malpractice in one case (the shopping center lawsuit) until appeals in a different case (the first bankruptcy case), in which the attorney does not represent the former client, are exhausted.
Even if the Hughes rule tolled the Texas statute of limitations for Plaintiffs' claims until 1995, Plaintiffs' argument would still fail. The Texas statute of limitations for those claims are two years or four years, and would have expired before this lawsuit was filed. The Minnesota statute of limitations for Plaintiffs' claims is six years, but the Minnesota continuous representation rule only tolls the statute of limitations until Defendants ceased representing Plaintiffs, which indisputably occurred in 1991. Plaintiffs cannot apply Texas tolling rules to Minnesota statutes of limitation.
The only other references to equitable tolling in Texas law that the court has located (and, as noted above, Plaintiffs cite no support for their assertion of equitable tolling) have concerned specific rationales not applicable here. The court assumes arguendo, however, that Texas statutes of limitation may be tolled pursuant to the equitable powers of the court. Minnesota law explicitly recognizes equitable tolling, and in determining whether tolling is warranted considers the plaintiff's conduct, such as whether "circumstances beyond his control prohibited him from serving his complaint within the statutory period," as well as possible prejudice to the defendant. Ochs v. Streater, Inc., 568 N.W.2d 858, 860 (Minn.Ct.App. 1997).
Plaintiffs assert that the Complaint pleads facts that would support four different bases for equitable tolling of the statutes of limitations: 1) their appeal in the shopping center lawsuit; 2) FG's failure to turn over Stangel's records; 3) that Stangel lacked capacity to assert the claims in this lawsuit, at least from February 2, 1996 through December 27, 1997; and 4) that limitations do not begin to run against a cause of action for breach of fiduciary duty until the fiduciary relationship is "properly" terminated and the fiduciary "turns over all requested files to the beneficiary, accounts to the beneficiary for all funds received, and discloses all material facts to the beneficiary." The court rejects all of Plaintiffs' arguments.
This is the date Stangel filed his second bankruptcy proceeding.
With respect to the first argument, as noted above, Plaintiffs' appeals in the shopping center lawsuit were exhausted on February 9, 1993, not in 1995, and the statute of limitations would have expired before the filing of this action even if tolled while Plaintiffs appealed the shopping center lawsuit. In any event, this argument is essentially just for an application of Texas' Hughes tolling rule or Minnesota's continuous representation tolling rule. When a specific tolling doctrine has been recognized for particular circumstances, the court will not apply equitable tolling more favorably on the basis of the same criteria, absent exceptional circumstances not present here.
Plaintiffs' second argument is nothing more than an application of the discovery rule or fraudulent concealment doctrines. Plaintiffs have provided no explanation why the failure to turn over their records prevented them from filing this lawsuit within the statutory period. The Complaint clearly indicates that Plaintiffs had sufficient information to file the lawsuit within the statutory period. Plaintiffs also do not explain why equitable tolling should be applied in more favorable fashion than the discovery rule and fraudulent concealment doctrines, and the court sees no basis for such a result.
Plaintiffs' third argument is that Stangel lacked the capacity to sue during the pendency of his bankruptcy proceeding(s). This argument, of course, only applies to Stangel, as the Complaint makes no mention of a bankruptcy filed by SA. This argument is insufficient. Plaintiffs cite no statutory or case law authority to the effect that Stangel lacked standing to sue Defendants during the pendency of his first bankruptcy case. Plaintiffs apparently rely on the analysis in the Gordon Motion for the argument by the Gordon Defendants that Stangel has no standing, but the court finds that analysis unpersuasive. It is true that the power to avoid statutory liens, conferred by 11 U.S.C. § 545, can be exercised only by a Chapter 13 trustee and not a Chapter 13 debtor. In re Stangel, 219 F.3d 498, 501 (5th Cir. 2000), cert. denied, 121 S.Ct. 1240 (2001). Because that conclusion results from the explicit language of § 545, see id., however, it does not necessarily bar standing by a Chapter 13 debtor for other types of actions, such as this lawsuit. "The Bankruptcy Code itself is silent as to whether a debtor retains the capacity to sue others when a cause of action belongs to the bankruptcy estate." Olick v. Parker Parsley Petroleum Co., 145 F.3d 513, 515 (2d Cir. 1998). "Although some courts of appeals have held that Chapter 7 debtors have no standing to pursue causes of actions that belong to the estate . . . a Chapter 13 debtor's standing is different." Id, at 515-16. The legislative history of the Bankruptcy Reform Act, Pub.L. No. 95-598, 92 Stat. 2549 (1978) supports the conclusion that a Chapter 13 debtor has standing to pursue prepetition claims:
Presumably SA would have to file the claims, if it chose to do so, in state court, as it would not have standing to file the action as "related to" a bankruptcy proceeding, pursuant to 28 U.S.C. § 1334(b), to which it was not a party. See supra note 2. Even if this argument sufficed for equitable tolling as to claims by Stangel, it would not apply to claims by SA.
In fact, in responding to the challenge as to standing raised by the Gordon Defendants, Plaintiffs explicitly argue (with citations to authority) that Stangel does have standing to pursue this claim even during the pendency of his second bankruptcy case. Plaintiffs do not explain how these arguments are consistent. If Stangel had no standing to file this lawsuit during the first bankruptcy case (and therefore, Plaintiffs argue, is entitled to a tolling of the statute of limitations), he had no standing to file this lawsuit during the second bankruptcy case either (and his claims should be dismissed for lack of standing).
Although the parties did not explicitly raise this issue, the court notes for the record that the automatic bankruptcy stay, 11 U.S.C. § 362, had no effect on this action, since it enjoins only actions against the debtor, not by the debtor. Olick v. Parker Parsley Petroleum Co., 145 F.3d 513, 516 (2d Cir. 1998); MartIn-TrIgona v. Champion Federal Sav. Loan Ass'n, 892 F.2d 575, 577 (7th Cir. 1989).
Section 1303 . . . specifies rights and powers that the debtor has exclusive of the trustees. The section does not imply that the debtor does not also possess other powers concurrently with the trustee. For example, although Section [323] is not specified in section 1303, certainly it is intended that the debtor has the power to sue and be sued.
124 Cong. Rec. H. 11, 106 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards, House of Representative floor manager for the bill); 124 Cong. Rec. S. 17, 423 (daily ed. Oct. 5, 1978) (remarks of Sen. DeConcini, Senate floor manager for the bill). Relying on the legislative history and the nature of a Chapter 13 bankruptcy, the Second and Third Circuits have explicitly ruled that a Chapter 13 debtor has standing to litigate prepetition causes of action. Olick, 145 F.3d at 515-16; Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1209 n. 2 (3d Cir. 1992) ("an essential feature of a chapter 13 case is that the debtor retains possession of and may use all the property of his estate, including his prepetition causes of action, pending confirmation of his plan"). The court therefore concludes that Stangel's standing to litigate his causes of action against Defendants was not affected by his first bankruptcy case. Accordingly, the bankruptcy case did not prevent him from filing this action within the statutory period and he is not entitled to equitable tolling on this basis.
In their response to the standing issue raised by the Gordon Defendants, which as noted above contradicts their argument with respect to the equitable tolling issue, Plaintiffs cite In re Wood, 825 F.2d 90 (5th Cir. 1987) in support of this proposition. That case addressed the subject matter jurisdiction issue rather than the standing issue, involved a Chapter 11 bankruptcy rather than the significantly different Chapter 13 bankruptcy process, and was filed by a third party against the debtor rather than by the debtor. The court is perplexed as to exactly how Plaintiffs think this case supports their argument.
Finally, Plaintiffs' fourth argument raises an issue of law, concerning when the cause of action accrues, rather than a basis for equitable tolling. This proposition is, however, totally unsupported by any citations to case law authority, and the court has found no support for that proposition in either Texas or Minnesota law. The court also sees no basis for concluding that a plaintiff is prevented from filing a complaint simply because the fiduciary whom he intends to sue has not "turn[ed] over all requested files to the beneficiary, account[ed] to the beneficiary for all funds received, and disclose[ed] all material facts to the beneficiary." Once a plaintiff recognizes wrongful acts by a fiduciary, he can file a lawsuit and obtain additional information through discovery.
In summary, the statutes of limitations for all of Plaintiffs claims are either six years (Minnesota law) or two years and four years (Texas law). Plaintiffs filed their claims more than six years after the causes of action accrued. None of the specialized tolling doctrines of Texas or Minnesota law (the discovery rule, fraudulent concealment doctrine, the Hughes rule for legal malpractice, or the continuous representation rule) is adequate to preserve Plaintiffs' claims.
When a complaint on its face shows that it is barred by the statute of limitations, the plaintiff must, to survive a motion to dismiss, apprise the court of facts which would justify the extraordinary step of equitable tolling; the suit cannot be maintained merely by the theoretical possibility that the plaintiff can later justify tolling. Cf. Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115, 1119 (5th Cir. 1978) (failure to timely file EEOC complaint for age discrimination claim). Plaintiffs have advanced four arguments for "equitable tolling." Two are in essence equivalent to specialized tolling doctrines and do not justify more favorable treatment than those doctrines. The other two are asserted rules of law as to: 1) when a cause of action accrues (without any basis that the court could discover); and 2) a Chapter 13 debtor's lack of standing to pursue such claims (which is contradicted by the legislative history and case law in other circuits). Even as arguments for equitable tolling, the court finds none of the four persuasive. The court concludes that none of these factors should have prevented Plaintiffs from filing their claims within the statutory period, and there is therefore no basis for equitable tolling. Accordingly, it appears beyond doubt that Plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. The court therefore grants the Gordon Motion and the Roundtree Motion, as to their motions to dismiss only, and dismisses with prejudice all of Plaintiffs' claims. Because this disposes of the entire lawsuit, the court need not consider other arguments for dismissal by Roundtree and the Gordon Defendants.
III. Other Relief Requested
The Gordon Motion also requests, in the alternative, a more definite statement of certain allegations in the Complaint, pursuant to Fed.R.Civ.P. 12(e). As all of Plaintiffs' claims have been dismissed, this is no longer required and the Gordon Motion is therefore denied as moot with respect to this request. Similarly, Plaintiffs' Motion for Mediation is also denied as moot.
The Roundtree Motion includes a request for sanctions pursuant to Fed.R.Civ.P. 11, asserting that the Complaint was filed for an improper purpose (to harass Roundtree), contains claims not warranted by existing law (because barred by the statute of limitations), and contains allegations which lack evidentiary support (because Plaintiffs were not parties to the contract between Roundtree and the Gordon Defendants). The request is based largely on Plaintiffs' refusal to withdraw their claims against Roundtree after she advised them of her defenses based on statute of limitations and lack of contractual privity. As noted above, Plaintiffs asserted arguments for equitable tolling of the statutes of limitations. The court rejected all of those arguments, but is unable, on the evidence presented and without a response by Plaintiffs, to conclude that Plaintiffs had no good faith basis for making the arguments. The court believes that the better approach would be for Roundtree to file, if she so desires, a motion for attorney's fees pursuant to Fed.R.Civ.P. 54(d)(2). The court therefore denies without prejudice Roundtree's request for sanctions.
Plaintiffs declined to respond to the request for sanctions "unless and until so directed by the Court," which they characterized as "[i]n accordance with the applicable rules." Plaintiffs cite no rule, and the court is aware of none, whether from the Federal Rules of Civil Procedure or the court's local rules, that directs a party not to respond to a motion for sanctions unless directed to do so by the court. Plaintiffs are hereby put on notice that, if Defendants file a motion for attorney's fees, failure to respond will be construed as indicating Plaintiffs have no credible arguments in opposition.
IV. Conclusion
For the foregoing reasons, the court concludes that the applicable statutes of limitations bar all of Plaintiffs' claims and it appears beyond doubt that Plaintiffs can prove no set of facts consistent with the Complaint which would entitle them to relief. Accordingly, Plaintiffs' claims are hereby dismissed with prejudice. Roundtree's request for sanctions is denied without prejudice and all other relief requested by the parties is denied as moot. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.
It is so ordered.