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granting motion to strike a plaintiff's untimely opposition that fails to "explain the reasons, if any, for his tardy opposition"
Summary of this case from Radfar v. Rockville Auto Grp. LLCOpinion
Civil Action No. DKC 2003-2774
May 27, 2004
MEMORANDUM OPINION
Presently pending and ready for resolution in this case brought under the Fair Labor Standards Act (FLSA) and Title VII are the motions by Defendants (1) to dismiss or, in the alternative, for summary judgment, and (2) to strike Plaintiff's response in opposition to the motion. The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, the court will grant both motions.
I. Background
The following are facts alleged by Plaintiff Robert Curtis. Plaintiff worked as a procurement contract specialist for the Department of Commerce (DOC) and the National Oceanic and Atmospheric Administration (NOAA), an agency within DOC, from 1991 until 2001. Plaintiff was a GS-1102-12 grade 7, earning a salary of approximately $62,000 per year. During his tenure at DOC, Plaintiff received "many accolades and awards" for his work. Paper 1 at ¶ 6. Plaintiff unsuccessfully applied for promotions, which he claims "went to other less qualified applicants." Id. at ¶ 7. Plaintiff alleges that Defendants DOC/NOAA and Secretary of Commerce Donald Evans have failed to pay certain overtime, sick time and bonuses that he claims are owed to him.
On September 29, 2003, Plaintiff filed suit under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216 (b), in which he seeks recovery for unpaid overtime, unpaid sick time, unpaid bonuses, a statutory penalty, and attorney's fees and costs. The total amount sought by Plaintiff exceeds $258,000.00. In his complaint, Plaintiff also alleges that Defendants discriminated against him on the basis of his religion (Christianity), for failure to promote him, in violation of Title VII, 42 U.S.C. § 2000 et seq. On December 8, 2003, Defendants filed a motion to dismiss or, in the alternative, for summary judgment. Defendants subsequently filed a motion to strike Plaintiff's response in opposition to the motion.
Based on the discussion, infra, the court will treat Defendants' motion as a motion to dismiss.
II. Motion to Strike
Local Rule 105.2(a) requires, in pertinent part, that "all memoranda in opposition to a motion shall be filed within fourteen days of the service of the motion." If service is by mail or electronic means, Fed.R.Civ.P. 6(e) permits the respondent an additional three days. As noted, supra, Defendants filed their motion to dismiss or, in the alternative, for summary judgment on December 8, 2003. Plaintiff's opposition response therefore was due December 26, 2003. Plaintiff did not file his opposition until January 23, 2004 — four weeks past the deadline. Defendants have moved to strike Plaintiff's opposition as untimely.
The 17-day deadline actually fell on Christmas Day (December 25), which is a "legal holiday" under Rule 6(a) and therefore not computed in this calculation.
Local Rule 105.2(a) does not provide the consequence for a failure to meet the prescribed deadline. Thus, the district court, in its discretion, may decide whether to consider an untimely opposition. See H W Fresh Seafoods, Inc. v. Schulman, 200 F.R.D. 248, 252 (D.Md. 2000), aff'd, 30 Fed.Appx. 75 (4th Cir. 2002) (unpublished disposition). In the instant case, Plaintiff has failed to address any of the legal arguments or issues presented by Defendants in their motion; indeed, Plaintiff's opposition is entirely unresponsive and contributes nothing to the record. Moreover, Plaintiff has not even responded to Defendants' motion to strike — filed on February 3, 2004, more than three months ago — nor has he attempted to explain the reasons, if any, for his tardy opposition. Accordingly, the court will exercise its discretion and grant the motion to strike Plaintiff's opposition response. Cf. H W Fresh Seafoods, 200 F.R.D. at 252 (denying defendant's motion to strike opposition memorandum as untimely, where defendant failed to show "that he was harmed in any way" by seven-day delay).
III. Standard of Review
Motions to dismiss for lack of subject matter jurisdiction are governed by Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In a 12(b)(1) motion, the court "may consider evidence outside the pleadings" to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg Potomac R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The court should grant the 12(b) (1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, 945 F.2d at 768.
IV. Analysis A. Fair Labor Standards Act (FLSA)
Plaintiff asserts his claims for recovery of allegedly unpaid overtime, unpaid sick time and unpaid bonuses, as well as a penalty against Defendants, under FLSA. The Tucker Act, 28 U.S.C. § 1491, provides the jurisdiction for cases brought under FLSA. See Saraco v. U.S., 61 F.3d 863, 866 (Fed. Cir. 1995), cert. denied, 517 U.S. 1166 (1996). Under the Tucker Act, the Court of Federal Claims possesses "exclusive jurisdiction to render judgment upon any claim against the United States for money damages exceeding $10,000 that is "founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.'" Eastern Enters, v. Apfel, 524 U.S. 498, 520 (1998) (quoting 28 U.S.C. § 1491(a)(1)). See also Clinton v. Goldsmith, 526 U.S. 529, 540 n. 13 (1999); In re Carefirst of Maryland, Inc., 305 F.3d 253, 258 (4th Cir. 2002).
Although no statute explicitly states that the Court of Federal Claims has exclusive jurisdiction over cases exceeding $10,000, the language of the Tucker Act read together with 28 U.S.C. § 1346(a)(2) — which grants district courts concurrent jurisdiction over cases less than $10,000 — "leads quite naturally to the conclusion that jurisdiction of cases involving more than $10,000 lies exclusively in the Court of Federal Claims by virtue of 28 U.S.C. § 1491." Int'l Sci. Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1155 n. 2 (4th Cir. 1997).
In the instant case, Plaintiff demands a judgment of at least $258,000.00, far in excess of the $10,000 statutory limit. Therefore, this case, as Defendants correctly argue, rests within the exclusive jurisdiction of the Court of Federal Claims. This court is without jurisdiction to adjudicate Plaintiff's FLSA claims. See Waters v. Rumsfeld, 320 F.3d 265, 272 (D.C. Cir. 2003) (holding that district court lacked jurisdiction to hear case where "plaintiffs did not "clearly and adequately express' an intent to waive their FLSA claims in excess of $10,000"). Accordingly, the motion to dismiss Plaintiff's FLSA claims, pursuant to Fed.R.Civ.P. 12(b)(1), will be granted.
B. Title VII (Religious Discrimination)
Before filing a Title VII lawsuit in court, a federal employee must timely pursue and exhaust all available administrative remedies. See 42 U.S.C. § 2000e-16(c). Among these administrative requirements, the employee must contact an EEO Counselor "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). Failure to consult with an EEO Counselor within this required period constitutes a failure to exhaust administrative remedies and thus will preclude a district court from hearing the claim for lack of jurisdiction. See LaPorte v. Henderson, 176 F. Supp.2d 464, 470 (D.Md. 2001), aff'd, 45 Fed.Appx. 250 (4th Cir. 2002) (unpublished disposition).
Plaintiff alleges that Defendants discriminated against him on the basis of his Christian religion, in violation of Title VII, by denying him a promotion that he sought within DOC and by "[f]ailing or refusing to take appropriate action to remedy the effects of the discriminatory treatment." Paper 1 at ¶ 21(b). Plaintiff does not provide any dates for the alleged occurrences of religious discrimination in his complaint. In his administrative complaint for employment discrimination, Plaintiff identifies allegedly discriminatory events in 1995, 1998 and 2000; the latest specific date cited by Plaintiff apparently is "December 4 or 5, 2000." Paper 5, Ex. 14 at 17. Plaintiff did not initiate contact with an EEO Counselor until January 29, 2001. See Id., Ex. 13 at 1.
The latter description perhaps sounds of a hostile work environment claim, but Plaintiff offers nothing further on this matter.
Even construing early December 2000 as the date of the last allegedly discriminatory act or allegedly discriminatory personnel action, a proposition at best dubious from the record, Plaintiff did not initially consult the EEO Counselor until more than 50 days afterward. Plaintiff therefore "did not timely initiate counseling" by contacting the EEO Counselor when he did. Jakubiak v. Perry, 101 F.3d 23, 27 (4th Cir. 1996) (discussing 29 C.F.R. § 1614.105(a)(1)). In addition, Plaintiff has not responded in any manner to Defendant's argument regarding the consultation requirement. By consulting with an EEO Counselor only after expiration of the 45-day time limit, Plaintiff failed to exhaust his administrative remedies. See Zografov v. V.A. Med. Ctr., 779 F.2d 967, 969-70 (4th Cir. 1985); LaPorte, 176 F. Supp.2d at 470. As with the FLSA claims, supra, this court also is without jurisdiction to hear Plaintiff's Title VII claims. Accordingly, the motion to dismiss these claims, pursuant to Fed.R.Civ.P. 12(b)(1), will be granted.
A mandatory waiver of the 45-day time limit by the agency or EEOC is available under certain circumstances. See 29 C.F.R. § 1614.105(a)(2). Nothing in the record, including the EEO Counselor's report, indicates that Plaintiff received or merited such a waiver. Cf. Jakubiak, 101 F.3d at 27-28 (45-day time limit waived where plaintiff showed he did not receive adequate notification).
Motions to dismiss for failure to exhaust administrative remedies are governed by Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. See Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1036 (4th Cir. 1994); Khoury v. Meserve, 268 F. Supp.2d 600, 606 (D.Md. 2003), aff'd, 85 Fed.Appx. 960 (4th Cir. 2004) (unpublished disposition).
Although a complaint in an employment discrimination lawsuit need only satisfy the "simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), the plaintiff, in his complaint, still must "allege facts sufficient to state all the elements of [his] claim" and to "support a claim for relief." Bass v. E.I. Dupont de Nemours Co., 324 F.3d 761, 765 (4th Cir.), cert. denied, 124 S.Ct. 301 (2003). Plaintiff's complaint is devoid of specific factual allegations, let alone any that "have anything to do with" religion. Id.
V. Conclusions
For the foregoing reasons, the court will grant both the motion to strike and the motion to dismiss by Defendants. A separate Order will follow.