                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
MARIA H. AGUADO,                     )
                                     )
          Plaintiff,                 )
                                     )
       v.                            ) Civil Action No. 10-0497 (RBW)
                                     )
SUNTRUST BANK,                       )
                                     )
          Defendant.                 )
____________________________________)


                                  MEMORANDUM OPINION

       In this action brought pro se, the plaintiff sues SunTrust Bank (“SunTrust”) for

negligence stemming from the loss of the contents of her safe deposit box. The defendant moves

to dismiss pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure or for

summary judgment under Rule 56.1 Because the parties agree that the complaint was filed

beyond the District of Columbia’s three-year statute of limitations applicable to negligence

claims, and the record provides no basis for tolling the limitations period, the Court will grant the

defendant’s motion for summary judgment.

                                         BACKGROUND

       In her one-page complaint, the plaintiff alleges the following: “In the late 1970s[,] [she]

opened a safe deposit box at the Suntrust Bank located at 17th & K Streets, N.W., Washington,



       1
           The defendant correctly argues that process cannot be served at the P.O. Box address
listed in the complaint. But the plaintiff is proceeding in forma pauperis and thus is relying on
the court officers to effect service of process. See 28 U.S.C. § 1915(d) (2010). Because the
plaintiff has not been afforded the opportunity to correct the service deficiency by providing a
suitable address, the Court will not penalize her by dismissing the case under Rule 12(b)(5) for
insufficient service of process.
D.C.” Complaint (“Compl.”). “Sometime in the 2000s,” that SunTrust branch “disappeared due

to building construction.” Id. The plaintiff “made many efforts by phone and in person,

accompanied by friends” to locate her safe deposit box but “was given the runarounds by

Suntrust employees. . . .” She later learned that the safe deposit box “was put up for auction.”

Id.

       By letter dated April 15, 2002, the defendant notified the plaintiff that her payment for the

safe deposit box was past due and absent her payment in 60 days, the box would be repossessed.

SunTrust Bank’s Memorandum of Points and Authorities in Support of its Motion to Dismiss the

Complaint, or in the Alternative, for Summary Judgment (“Def.’s Mem.”) [Dkt. No. 5-1],

Exhibit (“Ex.”) A (Affidavit of Judy L. Rash in Support of SunTrust Bank’s Motion to Dismiss

the Complaint, or in the Alternative, for Summary Judgment (“Rash Aff.”) ¶ 4 & Ex. B. By

letter dated June 26, 2002, the defendant informed the plaintiff that it had indeed repossessed the

box and stored the contents in the bank’s vault. Id., Ex. A (Rash Aff.) ¶ 5 & Ex. C. The

defendant further informed the plaintiff that if she failed to claim the contents and pay the

amount due, $254.90, by December 6, 2002, the contents would be sent to the Department of

Finance for the District of Columbia. Id., Ex. C. The plaintiff did not claim the June 26 letter,

which was sent by certified mail. Id., Ex. A ¶ 7. The defendant’s branch at 17th and K closed on

Friday, September 6, 2002, and reopened the following Monday, September 9, 2002, a block

away at 17th and I Streets, N.W. Id. ¶¶ 8, 10. Allegedly, “[a]ll customers of SunTrust Bank,

including those with a safe deposit box, were notified of the branch’s closing.” Id. ¶ 9.

       By letter dated March 23, 2006, addressed to the Office of the President of SunTrust

Bank, the plaintiff recounted her history with the defendant and her efforts in 2002 and 2005 to



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locate her safe deposit box. Id., Ex. E. The plaintiff stated that she was told apparently weeks

before she wrote the letter that her property was sold at auction in 2004. Id.

       On March 26, 2010, the plaintiff, a resident of Takoma Park, Maryland, filed this action

against SunTrust, which presumably was pursued as a diversity action because the plaintiff lists

SunTrust’s address as Richmond, Virginia, and demands $500,000 in monetary damages.2 See

Compl. The plaintiff alleges that she lost “irreplaceable” items, “such as the heirloom pair of

diamond earrings that have been passed on in [her] family . . . for five generations [and] [her]

father’s ring [that] he gave [her] at [her] wedding.” Id.

                                          DISCUSSION

                                      I. Standard of Review

       Courts will grant a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56 if “the pleadings . . . and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2). When ruling on a Rule 56(c) motion, the Court must view the evidence in the light

most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)

(citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must

therefore draw “all justifiable inferences” in the non-moving party's favor and accept the

non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The non-moving party, however, cannot rely on “mere allegations or denials,” Burke v. Gould,

286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation

marks omitted), and “must do more than simply show that there is some metaphysical doubt as to


       2
           See 28 U.S.C. § 1332 (2010) (creating federal court jurisdiction over cases where the
parties are of diverse citizenship and the amount in controversy exceeds $75,000).

                                                 3
the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

(citation omitted). Simply put, “conclusory allegations unsupported by factual data will not

create a triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908

(D.C. Cir. 1999) (internal quotation marks and citations omitted). Rather, to withstand a

properly supported motion for summary judgment, the non-moving party must “set out specific

facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). “[T]here is no [genuine] issue

for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a

verdict for that party,” Anderson, 477 U.S. at 249 (citation omitted), and if the Court concludes

that the evidence adduced by the non-moving party “is merely colorable . . . or is not significantly

probative,” id. (citations omitted), or if the non-moving party has otherwise “failed to make a

sufficient showing on an essential element of her case with respect to which she has the burden

of proof,” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), then the moving party is entitled to

summary judgment.

                                        II. Legal Analysis

       Under the law of the District of Columbia applicable to this diversity action, Smith v.

Wash. Sheraton Corp., 135 F.3d 779, 782 (D.C. Cir. 1998), a claim for negligence must be

brought within three years of the date the wrongful acts occurred, D.C. Code § 12-301(8) (2010);

see Tolbert v. Nat’l Harmony Mem’l Park, 520 F. Supp. 2d 209, 211-12 (D.D.C. 2007) (listing

negligence among claims with three-year limitation under § 12-301).

       The plaintiff does not dispute that she filed her complaint beyond the limitations period.

Plaintiff Motion to Oppose and Dismiss the SunTrust Bank Motion to Dismiss the Complaint

and Plaintiff Motion to Oppose Summary Judgment ¶ 3 (acknowledging that the complaint “on


                                                  4
the surface appears not within the three-year statute of limitations”). She argues, however, that

she should be excused from the limitations bar because of her correspondence and “numerous

phone calls” to the defendant “all to no avail[,]” id., and because she “did not receive

Defendant’s correspondence via U.S. Mail,” id. ¶ 4, mailed to her in 2002.

       It is a well-established principle of law that “[a] defendant who engages in ‘inequitable

conduct’ can be equitably estopped from invoking the statute of limitations.” Jankovic v. Int’l

Crisis Grp., 494 F.3d 1080, 1086 (D.C. Cir. 2007) (quoting Chung v. U.S. Dep't of Justice, 333

F.3d 273, 278 (D.C. Cir. 2003)). “Similar to equitable estoppel, the doctrine of lulling applies

when the defendant ‘ha[s] done something that amounted to an affirmative inducement to

plaintiffs to delay bringing action[.]’ ” Id. at 1087 (quoting Bailey v. Greenberg, 516 A.2d 934,

937 (D.C. 1986)) (other citation omitted; alteration in original); see Monroe v. Williams, 705 F.

Supp. 621, 626 (D.D.C. 1988) ("It is clear from the case law that defendant must have somehow

acted affirmatively to prevent plaintiff from filing his lawsuit.") (emphasis in original). “If

equitable estoppel applies, the defendant's conduct ‘postpones the date at which a court will

consider the injury to have accrued[.]’ ” Wiggins v. State Farm Fire and Cas. Co., 153 F. Supp.

2d 16, 20 (D.D.C. 2001) (quoting Bailey v. Int’l Brotherhood, 175 F.3d 526, 530 (7th Cir.

1999)). “The court's equitable power to toll the statute of limitations will be exercised only in

extraordinary and carefully circumscribed instances . . . and does not extend to what is at best a

garden variety claim of excusable neglect.” Washington v. Wash. Metro. Area Trans. Auth., 160

F.3d 750, 753 (D.C. Cir. 1998) (internal citations and quotation marks omitted).

       The plaintiff suggests that she was misled by the defendant’s employees in 2002 when

allegedly she was told that she “should wait for [her bank branch] to open again,” and in 2005


                                                  5
when allegedly she was directed to the unclaimed property division for the State of Virginia.

Def.’s Mem., Ex. E. By her own acknowledgment in her letter of March 23, 2006, sent to the

office of the defendant’s president, the plaintiff knew at least by that date that her property had

been sold at auction in 2004. Id. Thus, at the latest, the plaintiff’s claim accrued on March 23,

2006. Because the plaintiff does not allege that the defendant engaged in any misconduct

between the accrual date and the limitations date of March 23, 2009, no basis exists for applying

equitable estoppel to this action filed one year beyond the limitations period. See Wiggins, 153

F. Supp. 2d at 20-21 (determining that because “the conduct relied upon by plaintiff to support

his equitable estoppel argument occurred before the statute of limitations began to run . . . ,

equitable estoppel . . . would not extend the date on which the statute of limitations began to

run”).

         For the foregoing reasons, the Court finds that no genuine issue of material fact exists as

to the untimeliness of the complaint. The defendant therefore is entitled to judgment as a matter

of law.3



                                               ________s/______________
                                               Reggie B. Walton
DATE: September 29, 2010                       United States District Judge




         3
             A separate Order accompanies this Memorandum Opinion.

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