Kretschmar v. Department of the Navy et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SANDRA KRETSCHMAR,
Plaintiff,
v.
DEPARTMENT OF THE NAVY, et al,
Defendants.
Case No.: 3:25-cv-00546 RBM-DEB
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
[Doc. 5]
Presently before the Court is a Motion to Dismiss filed by Defendant John Phelan,1
Secretary of the Navy. (Doc. 5.) Defendant argues Plaintiff Sandra Kretschmar’s claims
are barred by the applicable statute of limitations. 	(Id. at 4–7.2) 	Plaintiff has filed an
Opposition to the Motion (“Opposition”). 	(Doc. 6.) 	Plaintiff argues this case should be
permitted to proceed because this action is the same as a prior case she filed in this District
that was dismissed. (Id. at 2–7.) Defendant has filed a Reply (“Reply”). (Doc. 8.)
The Court finds the matter suitable for determination on the papers and without oral
argument pursuant to Civil Local Rule 7.1(d)(1). 	For the reasons set forth below,
Defendant’s Motion to Dismiss is GRANTED.
1 John Phelan is now the Secretary of the Navy and is automatically substituted for Carlos
Del Toro pursuant to Federal Rule of Civil Procedure 25(d).
2 The Court cites the paragraph numbers of the Complaint and the CM/ECF electronic
pagination for all other cites to the record unless otherwise noted.
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I. 	BACKGROUND
Plaintiff has filed two cases in this District. 	The first, Kretschmar v. Dep’t of the
Navy (Kretschmar I), No. 24-cv-00468-LL-BJC (S.D. Cal.) was filed on March 8, 2024.
The second, this case, was filed on March 7, 2025. (Doc. 1.)
On March 8, 2024, Plaintiff filed Kretschmar I. On November 7, 2024, the assigned
district judge issued an Order to Show Cause (“OSC”) why the case should not be
dismissed because Plaintiff had not served any of the Defendants in the preceding eight
months. 	(Kretschmar I, ECF 9.) 	Plaintiff failed to respond in writing by November 21,
2024 as order in the OSC, and on December 10, 2024 the case was dismissed without
prejudice pursuant to Federal Rule of Civil Procedure 4(m) for failure to timely serve and
Federal Rule of Civil Procedure 41(b) for failure to prosecute. 	(Kretschmar I, ECF 10.)
Judgment was entered the same day. (Kretschmar I, ECF 11.) There have been no further
filings in Kretschmar I since it was dismissed on December 10, 2024. In the Declaration
of Plaintiff’s Counsel Daniel J. Goularte (“Goularte Decl.”), filed in support of Plaintiff’s
Opposition to Defendant’s Motion to Dismiss in this case, counsel indicates that he and his
co-counsel failed to serve process because each co-counsel believed the other had already
done so and they did not realize they had failed to serve in Kretschmar I until it was already
dismissed. 	(Goularte Decl. [Doc. 6-1]) ¶ 3.) 	Co-counsel, Alan H. Canterbury, indicates
that in late December 2024 he received a copy by mail of the order dismissing the prior
action. (Decl. of Alan H. Canterbury (“Canterbury Decl.”) [Doc. 6-2] ¶ 4.)
Plaintiff, represented by the same counsel, filed this action on March 7, 2025,
asserting the same causes of action based upon the same factual allegations. (See generally
Compl.; see also Doc. 6 at 3 (Plaintiff asserting the claims, parties, and facts alleged are
the same).) Plaintiff alleges that she was subjected to violations of Title VII of the Civil
Rights Act of 1964 while employed by the Department of the Navy. (Compl. 1, 5, 16–44.)
Plaintiff brings causes of action for discrimination, quid pro quo sexual harassment, hostile
work environment sexual harassment, and retaliation. (Id. ¶¶ 45–77.)
///
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Defendant has filed the instant Motion to Dismiss (Doc. 5) arguing this case should
be dismissed for failure to timely file because this new case was filed long after Title VII’s
90-day filing deadline had passed and Plaintiff is not entitled to tolling or relation back to
the prior complaint.3 (Doc. 5 at 4–7.)
II. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), an action may be dismissed for
failure to allege “enough facts to state a claim to relief that is plausible on its face.” 	Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	“A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). For purposes of ruling on a Rule 12(b)(6)
motion, the court “accept[s] factual allegations in the complaint as true and construe[s] the
pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire
& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 	“In sum, for a complaint to
survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences
from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks
omitted). 	Although leave to amend should be freely given, it may be denied when
amendment would be futile. 	Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th
Cir. 1998) (“Although there is a general rule that parties are allowed to amend their
pleadings, it does not extend to cases in which any amendment would be an exercise in
futility or where the amended complaint would also be subject to dismissal.”) (internal
citations and quotations omitted).
3 Defendant additionally moves to dismiss many of Plaintiff’s claims for failure to timely
exhaust and to dismiss improperly named Defendants. (Doc. 5 at 7–9.) The Court need
not reach these additional issues because the Court grants dismissal based on the statute of
limitations bar.
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III. 	DISCUSSION
A. 	Timeliness
Defendant argues that the Court should dismiss Plaintiff’s Complaint for failure to
comply with the applicable statute of limitations. 	(Doc. 5 at 4.) 	Defendant asserts that
although Plaintiff’s complaint in Kretschmar I may have been timely: (1) the instant case
was filed months after Title VII’s 90-day filing deadline; (2) the earlier filed complaint
does not alter the 90-day statute of limitations; and (3) Plaintiff has not met either of the
requirements for equitable tolling. (Id. at 4–6.)
1. 	90-Day Statute of Limitations
A civil action under Title VII must be filed within 90 days of the date the Equal
Opportunity Commission (“EEOC”) dismisses a claim. Scholar v. Pac. Bell, 963 F.2d 264,
266–67 (9th Cir. 1992) (finding Title VII claim barred by 90-day statute of limitations
when filed three days late). “The requirement … constitutes a statute of limitations.” 	Id.
(citing Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1445 (9th Cir. 1990)). “If the
claimant fails to file within the 90-day period, the action is barred accordingly.” Id. at 267
(citation omitted). Here, Plaintiff does not dispute, and the record reflects that the EEOC
“Order of Dismissal of Complaint Based on Filing in Federal Court” was issued, and this
dismissed Plaintiff’s administrative complaint on March 11, 2024. 	(Doc. 1-2 at 18–21.)
This means that absent some basis for tolling, Plaintiff had to file this action by June 9,
2024.
2. 	Prior Complaint Does Not Alter the Statute of Limitations
A separately filed “second complaint does not ‘relate back’ to [a] first complaint
[when] the second complaint [is] not an ‘amendment’ to [the] first complaint.” O’Donnell
v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006). “In instances where a complaint is
timely filed and later dismissed, the timely filing of the complaint does not ‘toll’ or suspend
the 90-day limitations period.” 	Id. 	“In such cases, dismissal of the original suit, even
though labeled as without prejudice, nevertheless may sound the death knell for the
plaintiff’s underlying cause of action if the sheer passage of time precludes the prosecution
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of a new action.” 	Id. (Title VII claims asserted in a second complaint filed more than
ninety days after the EEOC dismissal found untimely when the same claims were asserted);
see also Juarez v. Walmart, Inc., No. 24-2844, 2025 WL 1983945, at *1 (9th Cir. July 17,
2025) (“filing of plaintiff’s first complaint [does] not toll the 90-day limitations period [for]
her second complaint asserting the same claims.”) (summarizing O’Donnell, 466 F.3d at
1111).
Here, Plaintiff does not address Defendant’s argument that this new and separately
filed complaint does not constitute an amendment that relates back to the dismissed
complaint in Kretschmar I under Rule 15(c) or the argument that the prior complaint did
not toll the statute of limitations. The Court finds that the previously filed and dismissed
complaint did not toll the statute of limitations, and the new complaint asserting the same
claims as the dismissed complaint in Kretschmar I does not relate back under Rule 15(c)
because Plaintiff filed a separate action and, as Plaintiff acknowledges, she is asserting the
same claims on the same facts against the same parties. (Doc. 6 at 3.)
3. 	Equitable Tolling
The 90-day statute of limitations may be subject to equitable tolling. 	Scholar, 963
F.2d at 267. In general, to seek equitable tolling, a litigant bears the burden of establishing
(1) that [she] has been pursuing [her] rights diligently and (2) that some extraordinary
circumstance stood in [her] way. 	Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
However, “it has been applied sparingly,” and [c]ourts have been generally unforgiving …
when a late filing is due to a claimant’s failure ‘to exercise due diligence in preserving
[her] legal rights.” 	Scholar, 963 F.2d at 267–68; Irwin v. Dep’t of Veterans Affs.,
498 U.S. 89, 96 (1990) (declining to extend equitable tolling to petitioner whose lawyer
was absent from the office when EEOC notice was received); see also Welch v. S. Cal.
Edison, 378 F. App’x 621, 623 (9th Cir. 2010) (denying equitable tolling when plaintiff
failed to show she was actively pursuing her judicial remedies).
Plaintiff does address Defendant’s argument that she is not entitled to equitable
tolling. 	However, even if the Court considered the circumstances Plaintiff advances for
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relief under Federal Rule of Civil Procedure 60—counsel’s miscommunication and failure
to stay informed of the status of the case—Plaintiff meets neither requirement for equitable
tolling. 	Plaintiff has not shown an extraordinary circumstance stood in her way. 	Irwin,
498 U.S. at 96 (equitable tolling does “not extend to what is at best [a] garden variety claim
of excusable neglect”).4 Plaintiff is also unable to establish she was pursuing her rights
diligently because if the lack of diligence by counsel prior to dismissal of the first case
were somehow excused, even once she knew the first case was dismissed, Plaintiff has
taken no action in that case and waited more than two months to file this case. (Decl. of
Canterbury ¶ 4 [Doc. 6-2 at 2–3] (knew of dismissal in late December 2024).) “One who
fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984).
Because Plaintiff is not entitled to tolling, and this action does not relate back to the
prior complaint for purposes of the statute of limitations, the Court finds this action is
untimely and barred by the 90-day statute of limitations.
B. 	Plaintiff’s Request for Relief Under Rule 60
As noted above, Plaintiff largely does not address the legal arguments raised in
Defendant’s Motion to Dismiss regarding the statute of limitations bar. 	Rather, in her
opposition brief, Plaintiff seeks relief under Rule 60. Plaintiff asserts her counsels’ errors
“forced [her] to refile this [a]ction on March 7, 2025” and she “should be allowed to
continue with the instant action … .” 	(Doc. 6 at 3–4.) 	She argues that she is entitled to
relief under Rule 60(b) or, in the alternative, Rule 60(d)(1). 	(Id. at 4–6). 	Specifically,
Plaintiff seeks to be “relieve[d] … from the administrative mistake that led to the filing of
th[is] [a]ction” under Rule 60(b) (id. at 5–6) and that the court grant “relief from the order
of dismissal in the first action” under Rule 60(d) by “allowing the instant action to proceed
… .” (Id. at 6.)
4 The Cout is not finding Plaintiff has even shown excusable neglect, but noting that she
has certainly not met the higher bar for extraordinary circumstances.
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Rule 60(b) provides that “[o]n motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or proceeding for the following
reasons,” and then goes on to list six subsections of reasons. Plaintiff quotes the entirety
of Rule 60(b) and does not identify which subsection she is attempting to move for relief
under, what the applicable standards for any subsection are, or how her counsel’s errors
meet any standards for any of the six subsections. (Doc. 6 at 4–7.)
As an initial matter, there is no judgment in this case. Even if Plaintiff identified a
reason for Rule 60(b) relief and provided a basis for application of it to Plaintiff’s prior
case, Rule 60(b) has no application in this case because there has been no judgment issued
in this case for Plaintiff to seek relief from. Additionally, as Defendant points out in Reply,
“Plaintiff cannot seek relief under Rule 60 through her opposition brief because she has
not moved for such relief.” (Doc. 8 at 4.) Plaintiff has not filed a motion seeking relief
under Rule 60(b) in this case or the prior case. In addition to the general principle that a
party must file their own motion when seeking relief from or action by a court, relief from
a final judgment under Rule 60(b) is only available via motion. Fed. R. Civ. P. 60(b) (“On
motion and just terms, the court may relieve a party or its legal representative from a final
judgment … .”) (emphasis added). 	In these respects, Plaintiff’s request for Rule 60(b)
relief in her opposition is deficient and improperly raised in this case.
Plaintiff’s request under Rule 60(d) is similarly deficient, although Plaintiff at least
seems to narrow her Rule 60(d) request to one subsection. Plaintiff quotes Rule 60(d) in
its entirety but emphasizes Rule 60(d)(1). Plaintiff quotes “Other Powers to Grant Relief.
This rule does not limit a court’s power to: (1) entertain an independent action to relieve
a party from a judgment, order, or proceeding.” 	(Doc. 6 at 6 (quoting Rule 60(d)(1))
(emphasis in brief).) She then repeats her claims of error by her counsel and requests relief
in the form of allowing this later action to proceed. (Id.) However, as with her request for
relief under Rule 60(b), Plaintiff never cites or discusses the standard for obtaining relief
under Rule 60(d)(1) or explains how counsel’s errors could meet that unidentified standard.
Additionally, Plaintiff cites no authority for granting Rule 60(d)(1) relief by ignoring a
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previously dismissed action and allowing a new one, where the claims are time-barred, to
proceed. She simply argues, again in an opposition brief rather than her own motion, that
the Court should grant her relief from the order of dismissal in Kretschmar I by allowing
the instant case to proceed. (Doc. 6 at 6–7.)
While Rule 60(d)(1) may permit “an independent action to relieve a party from a
judgment,” that is not what Plaintiff has filed or the relief Plaintiff has pursued, and
Plaintiff has not addressed the “grave miscarriage of justice” standard applicable to relief
from a judgment by way of an independent action. United States v. Beggerly, 524 U.S. 38,
47 (1998) (“[A] independent action should be available only to prevent a grave miscarriage
of justice.”); see also Treadaway v. Academy of Motion Picture Arts and Sciences, 783
F.2d 1418, 1420 (9th Cir. 1986) (explaining that historically, the power to entertain an
independent 	action 	“has 	been 	exercised 	‘only 	under 	unusual 	and 	exceptional
circumstances.’”) (quoting Crosby v. Mills, 413 F.2d 1273, 1276 (10th Cir. 1969)).5
Here, this case was not filed as an independent action to seek relief from the
Kretschmar I judgment. 	It is a refiling of the same case that was previously dismissed.
Based on Plaintiff’s Opposition and supporting declarations, Plaintiff took no action in the
prior case for eight months due to counsel’s errors, discovered her case had been dismissed
for failure to serve and failure to prosecute shortly after it was dismissed, waited over two
months, refiled the same case again despite the dismissal, and never moved for relief in the
prior case. (See supra Section I.) The refiling of the same case is not an independent action
seeking to be relieved of the prior judgment. Rather, it appears to be an attempt to, at best
ignore and at worst circumvent, the prior judgment. 	Additionally, even if the Court
5 Rule 60(d)(1) “is not an affirmative grant of power but merely allows continuation of
whatever power the court would have had to entertain an independent action if the rule had
not been adopted.” 	11 C. Wright & A. Miller, Federal Practice and Procedure § 2868
(Independent 	Action 	for 	Relief) 	(3d 	ed.) 	(citations 	omitted). 	“The 	reference 	to
‘independent action’ is to what had been historically known simply as an independent
action in equity to obtain relief from a judgment.” Id. (citations omitted).
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construed Plaintiff’s Rule 60(d)(1) request, improperly raised in an opposition brief, as
somehow qualifying as an independent action, what Plaintiff requests is not that the prior
judgment be vacated. 	Plaintiff is asking for this case to proceed but, in addition to not
explaining how she meets the high standard for this relief, she provides no authority for the
Court to afford relief in the form of ignoring a prior judgment and allow an untimely action
to proceed.
In summary, because the instant Complaint is time-barred by the 90-day statute of
limitations, 	Defendant’s 	Motion 	to 	Dismiss 	is 	GRANTED 	and 	the 	Complaint 	is
DISMISSED.
C. 	Leave to Amend
Federal Rule of Civil Procedure 15(a)(2) explicitly provides litigants with the ability
to amend their pleadings prior to trial with either the opposing party’s consent or the
Court’s leave. Rule 15 calls for the Court to “freely give leave when justice so requires.”
Fed. R. Civ. P. 15(a)(2). However, the “general rule that parties are allowed to amend their
pleadings … does not extend to cases in which any amendment would be an exercise in
futility.” 	Steckman, 143 F.3d at 1298. Here, the Court DENIES leave to amend because
Plaintiff’s claims are barred by the statute of limitations and any amendment would be
futile. 	Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1060 (9th Cir. 2008)
(finding amendment futile “when claims are barred by the statute of limitations”).
IV. 	CONCLUSION
The Court GRANTS Defendant’s Motion to Dismiss (Doc. 5.) 	This case is
DISMISSED WITHOUT LEAVE TO AMEND. 	The Clerk of the Court SHALL
CLOSE the file.
IT IS SO ORDERED.
Dated: March 24, 2026
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