The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO DISMISS COMPLAINT
Defendant American Honda Motor Co., Inc. ("Defendant") has filed a motion to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim and Fed. R. Civ. P. 12(b)(5) for insufficient service. For the reasons discussed below, Defendant's motion to dismiss is DENIED.
Richard William Martin ("Plaintiff") is a pro se plaintiff who is incarcerated at the Northern Nevada Correctional Center. Plaintiff's Complaint was filed in this Court on August 7, 2006. In his Complaint, Plaintiff alleges that on July 31, 2004, he was driving his 1993 Honda Accord when he was involved in an accident. (Complaint, ¶ 7.) The vehicle rolled over, and the airbag deployed with such force that his left hand was thrown through the driver's side window of the vehicle. (Complaint, ¶ 8.) The broken glass sliced the skin, muscles, and tendons off of Plaintiff's hand. (Complaint, ¶ 9.) Plaintiff was required to undergo surgeries on his hand and incurred medical bills in excess of $588,000. (Complaint, ¶ 11-12.) Plaintiff's ability to work has been adversely impacted by the injuries to his hand. (Complaint, ¶ 13.) Plaintiff also alleges that he has suffered emotional distress over the loss of use of his hand. (Complaint, ¶ 14.) Plaintiff seeks compensatory damages in excess of $750,000.
Defendant seeks dismissal of the Complaint on the grounds that (1) Plaintiff's claims are barred by the applicable statute of limitations, and (2) Plaintiff served Defendant with the Summons and Complaint after the 120-day period set forth in Fed. R. Civ. P. 4(m). The Defendant's motion is denied as to both grounds.
A. Statute of Limitations
A statute of limitations defense may be raised in a motion to dismiss only if the running of the statute is apparent on the face of the complaint. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). A motion to dismiss based on the running of the statute of limitations "can be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Jablon, 614 F.2d at 682.
Under California law, the statute of limitations for personal injury is two years. Cal. Code Civ. P. § 335.1. Nevada also has a two-year statute of limitations for personal injury claims. Nev. Rev. Stat. § 11.190.*fn1
It is unclear from the face of the Complaint whether the Complaint was filed within the two-year limitations period. The facts known to the Court are that the two-year period expired on July 31, 2006, the Complaint was dated July 26, 2006, and the Complaint was stamped "filed" by the Clerk's Office on August 7, 2006. What is unknown to the Court is when, under the "mailbox rule," the Complaint should be deemed filed.
Although the Ninth Circuit has not yet ruled on whether the "mailbox rule" should be extended to the filing of complaints by pro se prisoners, the Court concludes that the rationale for applying the "mailbox rule" to notices of appeal and other court filings by pro se prisoners applies equally to complaints. In Houston v. Lack, 487 U.S. 266 (1988), the Supreme Court held that a notice of appeal under Fed. R. App. P. 4(a)(5) is to be deemed filed at the moment a pro se prisoner delivers it to prison authorities for forwarding to the court. The Supreme Court explained that such a rule is necessary because of the unique situation of pro se prisoners:
[T]he pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped "filed" on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk's failure to stamp the notice on the date received.
In Saffold v. Newland, 250 F.3d 1262 (9th Cir. 2001), overruled on other grounds by Carey v. Saffold, 536 U.S. 214 (2002), the Ninth Circuit extended the "mailbox rule" to the filing of the petitioner's state habeas petition and the subsequent filing of his federal habeas petition. The Ninth Circuit explained: "At both times, the conditions that led to the adoption of the mailbox rule are present; the ...