                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           NOV 07 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
REBECCA A. ARIS,                                 No. 13-17348

              Plaintiff - Appellant,             D.C. No. 1:13-cv-00035-LEK-
                                                 KSC
 v.
                                                 MEMORANDUM*
STATE OF HAWAII DEPARTMENT OF
EDUCATION; JOHN DOES, 1-10; DOE
ENTITIES, 1-10,

              Defendants - Appellees.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                     Argued and Submitted October 19, 2016
                               Honolulu, Hawaii

Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.

      Appellant Rebecca Aris appeals from the district court’s judgment

dismissing her Title VII claims as barred by the statute of limitations. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Aris’s sole argument on appeal is that she is entitled to equitable tolling

under Burnett v. New York Central Railroad Co., 380 U.S. 424 (1965). When the

underlying facts are undisputed, we review de novo whether equitable tolling

applies. O’Donnell v. Vencor Inc., 466 F.3d 1104, 1109 (9th Cir. 2006).

       In Burnett, the plaintiff sued in state court under the Federal Employers’

Liability Act (Act), but his case was dismissed for improper venue after the

limitations period had run. 380 U.S. at 424–25. He then refiled in federal court, but

his claim was dismissed again as untimely. Id. at 425. The Supreme Court

reversed, concluding that the circumstances of the case merited tolling. Id. at

427–28. As in other cases where plaintiffs had been “prevented from asserting”

claims under the Act, the plaintiff in Burnett had not “slept on his rights,” but

rather had filed a timely action in a court where railroads, including the defendant,

had previously waived the applicable venue restriction. Id. at 429. Furthermore,

legislation at both the state and federal levels recognized that it would be unfair to

bar a plaintiff’s claim based solely on improper venue when the case was timely

filed but dismissed after the limitations period had run. Id. at 430–32. Because of

these considerations, the Court concluded that it would effectuate Congress’s intent

in enacting the Act to toll the limitations period during the pendency of the

plaintiff’s state court action. Id. at 432.


                                              2
      This case is distinguishable from Burnett. Aris has the burden to “alleg[e]

facts which would give rise to tolling,” Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th

Cir. 1993), and she has not done so here. She has alleged only that she timely filed

her claims in state court, voluntarily dismissed them outside the limitations period

when Appellee State of Hawaii Department of Education (Department) challenged

the court’s jurisdiction on sovereign immunity grounds, and refiled the claims in

federal court the same day. Absent, however, are the critical facts that underlaid the

decision in Burnett: the plaintiff’s belief that “his state action was sufficient”

because the defendant had previously waived its venue objection and the general

legislative agreement that a venue defect is not a reason to bar claims that have

been timely filed. 380 U.S. at 429–32. Here, Aris has not shown or even alleged

that the Department has ever waived its immunity in state court for cases like hers,

nor has she identified any legislative antipathy toward barring claims originally

filed in courts that unquestionably lacked jurisdiction to hear them.

      Aris also argues that the Department has not been prejudiced by the

improper filing, but prejudice “is not an independent basis for invoking [tolling]”;

rather, it becomes relevant only after “a factor that might justify such tolling is

identified.” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per

curiam).


                                            3
      Accordingly, we hold that Aris has not demonstrated entitlement to tolling

under Burnett, and the district court did not err in so concluding.

      AFFIRMED.




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