Gaus v. Dollar Tree Stores, Inc.

MOTION to dismiss case

W.D. Mo.May 30, 2017

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION CLAYTON GAUS, Plaintiff, v. DOLLAR TREE STORES INC., Defendant. ) ) ) ) ) ) ) ) ) Case No.: 17-0026-CV-W-FJG MOTION TO DISMISS BASED ON PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S MAY 5TH ORDER On May 5th, the Court granted Dollar Tree’s Motion To Dismiss, ruling that Plaintiff’s Missouri Human Rights Act claim was untimely (Doc. 13). The Court gave Plaintiff 20 days - until May 25 - to file a motion for leave to amend and attempt to assert federal discrimination claims. The Court gave specific guidance that any such motion needed to include (1) the proposed amended pleading; (2) Plaintiff’s EEOC charge of discrimination; and (3) Plaintiff’s EEOC right-to-sue notice. The Court warned Plaintiff of the consequences of not timely making such a submission: “Plaintiff is cautioned that if he fails to file a motion for leave to amend his complaint on or before May 25, 2017, this matter may be dismissed without further notice.” (Doc. 17, p. 3). The Court’s May 25 deadline came and went without Plaintiff filing a motion for leave. Consequently, this action should be dismissed without additional delay. A prompt dismissal is consistent with Federal Rule of Civil Procedure 1, because it will avoid unnecessary expense associated with pending litigation activities. Plaintiff’s deposition is presently noticed for June 7th, and, complying with MAP and its time limitations, mediation with an outside neutral is scheduled for June 8th. In-house counsel for Dollar Tree is scheduled to fly in from out-of-state to attend both the deposition and mediation. Dollar Tree requests that Case 4:17-cv-00026-FJG Document 22 Filed 05/30/17 Page 1 of 3 the Court dismiss this lawsuit in its entirety with prejudice right away so that Dollar Tree can avoid the costs associated with deposition preparation and mediation. The prejudice to Dollar Tree if it has to incur otherwise unnecessary additional expense associated with these upcoming proceedings is made more unfair considering that even had Plaintiff filed federal discrimination claims (or even if Plaintiff attempts to do so belatedly now), they are substantively untimely. The Court was correct to question Plaintiff’s story, i.e., that he received both the EEOC and MCHR right-to-sue notices together on the same day. It makes some sense for Plaintiff to have received the MCHR notice on July 12 because that notice was mailed on July 8. However, it makes no sense that the EEOC notice-mailed on June 21 (more than two weeks before the MCHR notice) would also be received on the same day. Plaintiff has failed to comply with the Court’s May 5th order and Dollar Tree should not have incur additional expense associated with deposition preparation and mediation of a case that on its face was not timely filed. WHEREFORE, Defendant Dollar Tree requests that the Court dismiss the action and grant it any other relief the Court deems appropriate. Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. /s/ Michael L. Matula ____________ Michael L. Matula MO #47568 4520 Main Street, Suite 400 Kansas City, MO 64111 Telephone: 816.471.1301 Facsimile: 816.471.1303 michael.matula@ogletreedeakins.com ATTORNEYS FOR DEFENDANT DOLLAR TREE STORES INC. Case 4:17-cv-00026-FJG Document 22 Filed 05/30/17 Page 2 of 3 CERTIFICATE OF SERVICE The undersigned certifies that on the 30th day of May, 2017, the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system and a copy of same was served via electronic mail to the following: Clayton Gaus 311A SE Melody Lane Lee’s Summit, MO 64063 (816) 785-9592 ClaytonGaus69@gmail.com PRO SE PLAINTIFF /s/ Michael L. Matula_______________ ATTORNEY FOR DEFENDANT DOLLAR TREE STORES INC. 29966733.1 Case 4:17-cv-00026-FJG Document 22 Filed 05/30/17 Page 3 of 3