Opinion
CASE NO. 2:10-CV-586-WKW [WO].
December 7, 2010
MEMORANDUM OPINION AND ORDER
Before the court is Elmore County Board of Education's ("Defendant") Motion to Dismiss for Lack of Federal Jurisdiction (Doc. # 5.), which the court construes as a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). As grounds for the motion, Defendant asserts deficiencies in Ms. Cooper's Complaint (Doc. # 1), which seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII") and 42 U.S.C. § 1981 and 1981a. With respect to the Title VII race discrimination claim, Defendant asserts that Ms. Cooper failed to file her lawsuit within ninety (90) days of receiving her right-to-sue letter, and her claim is therefore untimely. See 42 U.S.C. § 2000e-5(f)(1). With respect to the § 1981 and § 1981a claims, Defendant states that the jurisdiction and venue allegations in the Complaint fail to invoke this court's jurisdiction pursuant to § 1981 and § 1981a. Consequently, Defendant moves the court either to direct Ms. Cooper to amend her Complaint accordingly, or to dismiss for failing to allege jurisdiction properly. (Def.'s Br., at 2.) Ms. Cooper has filed a Response (Doc. # 11) to which the Defendant submitted a Reply (Doc. # 12). After careful review, Defendant's motion to dismiss Ms. Cooper's Title VII claim as untimely is due to be granted, and Defendant's motion for a court order directing Ms. Cooper to amend her complaint is due to be granted.
I. STANDARD OF REVIEW
A. Rule 12(b)(6)
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint for failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion tests the legal sufficiency of a complaint; thus, in assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).). To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint need not contain "detailed factual allegations," but must include enough facts "to raise a right to relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. 544, 545 (2007).
A defendant may move to dismiss a complaint on the ground that it is barred by the statute of limitations. See Fed.R.Civ.P. 12(b)(6). "[A] Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is `apparent from the face of the complaint' that the claim is time-barred." La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citing Omar v. Lindsey, 334 F.3d 1246, 1251 (11th Cir. 2003)). The regulatory deadlines applying to suits under the ADA are similar to a statute of limitations. See Washington v. Ball, 890 F.2d 413, 414 (11th Cir. 1989) (citing Bates v. Tenn. Valley Auth., 851 F.2d 1366, 1368 (11th Cir. 1988)); Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (11th Cir. 1993).
III. DISCUSSION
A. The Title VII Claim is Untimely
A plaintiff seeking relief under Title VII must file his or her lawsuit within ninety days of receiving a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1); see also Green v. Union Foundry Co., 281 F.3d 1229, 1233 (11th Cir. 2002); Stallworth v. Wells Fargo Armored Servs Corp., 936 F.2d 522, 524 (11th Cir. 1991) (Title VII "requires that suit be brought within 90 days after receipt of notice of right to sue."). Thus, if the complaint is not filed within ninety days, the right to sue is lost. Under § 2000e-5(f)(1), the ninety day period begins to run from "the giving" of the notice of a right to sue. Thus, it is the receipt of the notice that triggers the commencement of the ninety day filing period. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973).
If the date of receipt is unclear, the Eleventh Circuit places the burden of proof on the plaintiff to establish that his lawsuit is timely. Green, 281 F.3d at 1233 (Title VII plaintiff "has the initial burden of establishing that he filed his Complaint within ninety days of his receipt of the EEOC's right-to-sue letter.").
Ms. Cooper filed her Complaint on July 9, 2010, some 98 days after the date on the right-to-sue letter, which is dated April 2, 2010. (Docs. # 1, 5, Ex. A.) However, Ms. Cooper's claim is not dismissable purely based on this fact, because it is the date she received the right-to-sue letter that is important. Ms. Cooper avers in her Response that the letter was postmarked on April 5, 2010, which, taken as true, see Iqbal, 129 S.Ct. 1949, cuts three days off, reducing the interval to 95 days. (Pl.'s Resp., at 2.) Ms. Cooper goes on to state that these dates "[do] not necessarily mean that the complaint was untimely filed." (Pl.'s Resp., at 2.) However, Ms. Cooper is forgetful that it is her burden to establish that her lawsuit is timely. See Green, 281 F.3d at 1233. Because Ms. Cooper offers no further evidence, in the way of affidavits or otherwise, that she did not receive her right-to-sue letter on or after April 10, 2010, her Title VII claim is due to be dismissed.
B. Ms. Cooper Must Amend Her Complaint
Second, Defendant moves under Federal Rule of Civil Procedure 12(b)(1) for the court to either dismiss Ms. Cooper's §§ 1981 and 1981a claims as failing to properly allege this court's subject matter jurisdiction and venue, or alternatively, to direct Ms. Cooper to amend her Complaint accordingly.
Agreeing with Defendant that, in its present form, Ms. Cooper's Complaint fails to sufficiently invoke this court's subject-matter jurisdiction and venue over her §§ 1981 and 1981a claims, she will be directed to file an amended complaint.
However, the court takes this opportunity to remind Ms. Cooper that § 1981 claims must be alleged as violations of 42 U.S.C. § 1983 because "§ 1983 constitutes the exclusive federal remedy for violation by state actors of the rights guaranteed under § 1981," Bryant v. Jones, 575 F.3d 1281, 1288 n. 1 (11th Cir. 2009) (citing Butts v. County of Volusia, 222 F.3d 891, 894-95 (11th Cir. 2000)); see also Webster v. Fulton County, Ga., 283 F.3d 1254, 1256 (11th Cir. 2002) ("Section 1981 is enforceable against a municipality through 42 U.S.C. § 1983.")
Ms. Cooper is further reminded that "[t]o survive a motion to dismiss, [her] complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombley, 550 U.S. at 570).
IV. CONCLUSION
Accordingly, it is ORDERED that Defendant's Motion to Dismiss Plaintiff's Title VII claim (Doc. # 5) is GRANTED, and that Plaintiff's Title VII claim is DISMISSED with prejudice. It is further ORDERED that Plaintiff shall re-file an amended complaint in accordance with Part III.B of this opinion.
DONE this 7th day of December, 2010.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).