Opinion
Civ. No. 99-2063, SECTION "L" (5).
March 1, 2000.
ORDER AND REASONS
Presently before the Court is defendant's motion to dismiss and plaintiff's opposition thereto. (Rec. docs. 8, 12). For the reasons that follow, it is ordered that defendant's motion is denied.
Defendant moves for the dismissal of plaintiff's suit on two grounds. First, that the copy of the complaint that was served upon it, a one-paged document titled "Demand", runs afoul of the requirements of Rule 8(a), Fed.R.Civ.Pro., and fails to assert any cognizable theory of recovery. Second, defendant argues that plaintiff received his right-to-sue notice from the EEOC on or about March 31, 1999 but failed to file his lawsuit until November 15, 1999, well beyond the ninety day time period for filing suit under 42 U.S.C. § 2000e-5(f)(1).
The record contains a copy of the right-to-sue notice issued by the EEOC on March 31, 1999. When it was actually received by plaintiff is not reflected by the record. Plaintiff filed his complaint herein on July 1, 1999. (Rec. doc. 1). The complaint is a seven-paged document, attached to which are various supporting documents, including the charge of discrimination plaintiff filed with the EEOC and the aforementioned right-to-sue notice. Although the complaint cannot be characterized as a model of pleading, it, its attachments, and plaintiff's opposition to the motion to dismiss do provide defendant with minimal notice of the basis of plaintiff's claim. The "Demand" that was served upon defendant, a copy of which is appended to its motion, appears to be a settlement offer which plaintiff made some four months after suit was filed.
Plaintiff's lawsuit having been filed on July 1, 1999, it would be timely under 42 U.S.C. § 2000e-5(f)(1) if plaintiff received the right-to-sue notice on or after April 3, 1999. In his opposition, plaintiff states that he received the notice "[i]n early April . . ." (Rec. doc. 12, p. 5). Because the date that plaintiff actually received the notice is not reflected from the face of the pleadings, dismissal under Rule 12(b)(6) is inappropriate. Defendant may wish to re-urge his motion as one for summary judgment under Rule 56 after discovery has been conducted on the timeliness issue.
The ninety-day limitation period prescribed by § 2000e-5(f)(1) begins to run on the date that the right-to-sue letter is actually delivered to the claimant. Ringgold v. National Maintenance Corp., 796 F.2d 769, 770 (5th Cir. 1986);Crittendon v. American National Insurance Company, 967 F. Supp. 933, 941 (S.D. Tex. 1997).
New Orleans, Louisiana, this 29 day of February, 2000.