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Marley v. United States (9th Cir. - Dec. 8, 2008)

By Shaun Martin

It's always interesting to see the myriad of ways attorneys trick pro se litigants into losing their case. Like here.

Plaintiff -- initially represented by counsel -- files a timely FTCA case against the United States for medical malpractice. Plaintiff's attorneys then withdraw, after which an AUSA representing the U.S. writes plaintiff and asks him whether he'd like to dismiss the case "without prejudice," and included a proposed stipulation. After that tactic didn't initially work -- plaintiff didn't even respond -- the AUSA tried again, and this time, plaintiff returned the stipulation.

When plaintiff, now represented by counsel, subsequently refiled, the U.S. responded: "Sorry. The dismissal was without prejudice, sure. Like we promised. But you missed that as a result of the dismissal, you're now time-barred. And the statute of limitations is jurisdictional, so don't even try arguing equitable estoppel based upon our misleading you. Ha! We win."

And the Ninth Circuit agrees.

Fooling the unwary. Especially fun when the plaintiff has complications (allegedly caused by you) from prostate cancer.

Full post as published by California Appellate Report on December 08, 2008 (boomark / email).