Crazy Love Doesn't Toll The Statute Of Limitations

From the Feb. 19 Nevada Court of Appeals decision in Breslaw v. Bd. of Regents, just recently posted on Westlaw:

Breslaw is an alumna of … the University of Nevada Las Vegas (UNLV). In or around the time of the 2018-2019 school year, Breslaw developed a self-described limerence for one of her history professors, … who Breslaw asked for a letter of recommendation into graduate school. ["Limerence" apparently means "the state of being obsessively infatuated with someone, usually accompanied by delusions of or a desire for an intense romantic relationship with that person."]

After several conversations with [the professor,] Dr. Gallo (which Breslaw interpreted as unprofessional and terse), Breslaw reported Dr. Gallo to … the chair of the history department, who informed her that a formal complaint had been filed against Dr. Gallo on Breslaw's behalf. Breslaw then "spent several months contacting every UNLV administrative office zealously trying to retract the complaint," and attempted to explain to Dr. Gallo that her anxiety disorder caused her to misread the situation. Her attempts were unsuccessful, which culminated in a "public mental breakdown on Reddit" between October and December of 2019 wherein Breslaw made several public reddit posts seeking advice on the situation.

During this time, Reddit user u/thestickystickman collected Breslaw's posts and posted a summary of Breslaw's Reddit activity in the r/SubredditDrama forum, where it purportedly reached viral status [and led to further litigation -EV]. Eventually[,] UNLV's general counsel allegedly learned of the post and sent Breslaw a cease and desist letter informing her that she was no longer permitted to contact any of UNLV's faculty or staff for any reason. Ultimately, neither Dr. Gallo nor any other faculty at UNLV agreed to write Breslaw a letter of recommendation, and Breslaw's applications to the graduate programs at UNLV and the University of Nevada Reno (UNR) were denied.

Breslaw sued for intentional infliction of emotional distress, and tortious interference with prospective economic advantage. The IIED claim was dismissed under the two-year statute of limitations applicable to the tort, and the appellate court agreed:

As an initial matter. Breslaw does not challenge the district court's finding that the statute of limitations for her IIED claim began to run in 2019, and that the statute of limitations expired by the time she had filed her complaint in 2023. Instead. Breslaw challenges the district court's finding that equitable tolling does not apply to her IIED claim under Fausto v. Sanchez-Flores (Nev. 2021). Under Fausto, "when a plaintiff seeks to equitably toll the limitations period … the plaintiff must demonstrate that he or she acted diligently in pursuing his or her claim and that extraordinary circumstances beyond his or her control caused his or her claim to be filed outside the limitations period."

In her informal brief, Breslaw argues the district court misapplied the mental health exception for equitable tolling in Bills v. Clark (9th Cir. 2010), and advocates for this court to adopt the standard articulated in Davis v. Vilsack (D.D.C. 2012), a United States District Court for the District of Columbia case, and hold that her obsession with Dr. Gallo constitutes an extraordinary circumstance warranting equitable tolling. She further argues the district court inappropriately weighed her infatuation with Dr. Gallo and failed to consider her anxiety disorder when analyzing whether her mental state constituted an extraordinary circumstance under Fausto.

Here, however, Breslaw's arguments for equitable tolling are self-defeating. Both before the district court and in her informal brief Breslaw argues that she was simultaneously too blinded and impaired by her anxiety and infatuation with Dr. Gallo to do anything related to the case, while simultaneously asserting that her successful filing of multiple complaints (involving the same factual contentions regarding Dr. Gallo) against Reddit users proves her diligence in correcting the wrongs against her in this cause of action. But as noted by the district court, Breslaw's own assertions demonstrate that she was aware of the potential claims against UNLV and, as indicated by her own Reddit post, was already contemplating an IIED claim against it in October 2019. Accordingly, when assuming the truth of the facts as pled and construing them in the light most favorable to Breslaw, we cannot conclude that she acted with diligence in pursuing her claims against UNLV.

We further conclude that the district court appropriately determined that Breslaw's "state of infatuation" with Dr. Gallo did not qualify as an extraordinary circumstance under Fausto. Although the district court chose to apply the Ninth Circuit case Bills v. Clark in its order while Breslaw argues for application under the Davis case, … we need not determine whether Nevada should adopt such an exception in this case, because Breslaw fails to meet the standards articulated for equitable tolling due to mental impairment under either case. See Davis (stating that "a bare assertion of health problems does not rise to the extraordinary level: rather, the plaintiff must show that he was non compos mentis—incapable of handling his own affairs or unable to function in society."): Bills (stating that a petitioner seeking equitable tolling due to mental impairment must meet a two part test including that the mental impairment is an extraordinary circumstance, meaning that the "petitioner was unable rationally or factually to personally understand the need to timely file," and that the petitioner was diligent to the extent of his or her understanding but the mental impairment made it impossible to meet the filing deadline). Because Breslaw's own filings demonstrate that she was able to timely file actions in other matters and was capable of handling her own affairs, she would not meet the standards for equitable tolling articulated in Davis or Bills….

[As] to Breslaw's challenges to the district court's dismissal of her tortious interference with prospective economic advantage claim[,] … we conclude she has not demonstrated a basis for relief with regard to the district court's determination that she could not prove actual harm as a result of UNLV's conduct. In making this determination, the district court found that Breslaw's graduate school application did not create a protectable property interest. And on appeal, Breslaw fails to present any cogent argument challenging this conclusion or explain how she could show actual harm despite the court's determination in this regard….

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