Reed v. Inter-Fab Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Tenn.September 1, 2016

4828-6314-8343 v4 2902585-000002 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION PAUL REED PLAINTIFF v. CIVIL ACTION NO. 2:16-cv-02626-SHL-tmp JURY TRIAL DEMAND INTER-FAB, INC. DEFENDANT DEFENDANT’S MOTION & INCORPORATED MEMORANDUM TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant Inter-Fab, Inc. (“Inter-Fab”) respectfully requests that this lawsuit be dismissed with prejudice because it was filed outside of the applicable ninety-day statutory limit. 1. Inter-Fab manufactures swimming pool slides, waterfalls, and diving boards. While it is based in Arizona, Inter-Fab maintains a warehouse and operations at 3620 Regal Boulevard, Memphis, Tennessee 38118. Pro Se Plaintiff Paul Reed (“Plaintiff”) previously worked for Inter-Fab at the Memphis warehouse. Apparently aggrieved by his loss of employment, Plaintiff filed this lawsuit under Title VII of the Civil Rights Act (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”). 2. This Court is well-versed in the standards applicable to a Rule 12(b)(6) motion.1 The factual allegations offered in support of this Motion are taken directly from the Complaint and accepted as true. In the Complaint, Plaintiff pleads that he was “laid off” from Inter-Fab “in July of 2014.” (Complaint, ¶ 10.) After filing a charge of discrimination with the EEOC (id., ¶ 1 See Carter v. 21st Mortgage Corp., 2016 WL 4217987, at *1 (W.D. Tenn. July 21, 2016) (Pham, J.), report and rec. adopted, 2016 WL 4212278 (W.D. Tenn. Aug. 9, 2016); Richman v. United States, 2016 WL 3675886, at *1 (W.D. Tenn. June 17, 2016) (Pham, J.), report and rec. adopted, 2016 WL 3676833 (W.D. Tenn. July 7, 2016). Case 2:16-cv-02626-SHL-tmp Document 13 Filed 09/01/16 Page 1 of 5 PageID 30 Page 2 of 5 4828-6314-8343 v4 2902585-000002 12), Plaintiff “received” his “Right to Sue Letter” on “4-29-16” (id., ¶ 14 (emphasis in original)). Thereafter, on July 29, 2016, Plaintiff filed this lawsuit. (Id., p. 1.) 3. Under Title VII, lawsuits must be filed “within ninety days after the right-to-sue notice is actually received” by the plaintiff. Peete v. Am. Std. Graphic, 885 F.2d 331, 331 (6th Cir. 1989) (citing 42 U.S.C. § 2000e–5(f)(1)). The result is the same under the ADEA: “A civil action may be brought . . . within 90 days after the date of the receipt of such notice.” 29 U.S.C. § 626(e). This ninety-day statutory limit is “strictly enforced,” and doing so is “the best guarantee of evenhanded administration of the law.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th Cir. 2000) (internal quotation and citations omitted). 4. Plaintiff received the Right to Sue Letter on April 29, 2016. (Complaint, ¶ 14.) Ninety-one days later, on July 29, Plaintiff filed this lawsuit. (Id., p. 1.) Plaintiff has thus filed this lawsuit outside of the ninety-day statutory limit; he has filed it one day late. See Williams v. Sears, Roebuck & Co., 143 F. Supp. 2d 941, 945 (W.D. Tenn. 2001) (“[E]ven one day’s delay is fatal to a claim.”). 5. Importantly, this Motion is not based on the date the Right to Sue Letter was issued, sent, mailed, delivered, or alleged to have been received by Plaintiff. Thus, decisions extending the ninety-day period—e.g., for mailing or alleged receipt of a Right to Sue Letter 2 — are not applicable. Rather, this Motion is based on the date Plaintiff actually received the Right to Sue Letter, and Plaintiff actually received the Right to Sue Letter on April 29. (Complaint, ¶ 14.) Ninety-one days later, on July 29, when Plaintiff filed this lawsuit, the ninety-day statutory 2 See, e.g., Graham-Humphreys, 209 F.3d at 557 (discussing presumption of additional five days to ninety-day period when date of actual receipt of Right to Sue Letter is neither alleged nor established); Peete, 885 F.2d at 333 (When the date the Right to Sue Letter was actually received is not disputed, “no discernable purpose is served by applying Rule 6(e) [of the Federal Rules of Civil Procedure].”). Case 2:16-cv-02626-SHL-tmp Document 13 Filed 09/01/16 Page 2 of 5 PageID 31 Page 3 of 5 4828-6314-8343 v4 2902585-000002 limit had expired. This lawsuit is therefore time-barred, and it should be dismissed with prejudice. See Peete, 885 F.2d at 331 (affirming order that found complaint filed ninety-one days after plaintiff actually received his Right to Sue Letter was time-barred by one day). 6. Lastly, Plaintiff’s status as a pro se litigant does not save this lawsuit from dismissal. In Brown, the Supreme Court made clear that “[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). The Brown Court went on to affirm dismissal of a pro se litigant’s employment lawsuit because it was filed one day late. Id. at 150, 152. District courts around the country have similarly dismissed pro se employment lawsuits because they were filed one day late. 3 Following these authorities, Plaintiff should be treated as any other litigant. 4 The ninety-day statutory limit should be strictly enforced. And this lawsuit should be dismissed with prejudice. 7. Finally, no grounds or arguments for equitable tolling are alleged or otherwise discernable from the Complaint. See Truitt v. Cty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998) (discussing doctrine of equitable tolling); see also Johnson v. U.S. Postal Serv., 1998 WL 123488, at *1 (6th Cir. 1988) (refusing to apply doctrine of equitable tolling simply because of 3 See, e.g., Burton v. DTE Coke Operations, LLC, 2011 WL 2837654, at *2 (E.D. Mich. June 27, 2011), report and rec. adopted, 2011 WL 2802908 (E.D. Mich. July 18, 2011); Manley v. New York City Police Dept., 2005 WL 2664220, at *2, *5 (E.D.N.Y. Oct. 19, 2005); Toolan v. Board of Educ. of City of New York, 2003 WL 22015437, at *2 (S.D.N.Y. Aug. 25, 2003); Kyles v. Staff Mgmt., Inc., 2002 WL 31121096, at *2 (N.D. Ill. Sept. 25, 2002); Wilson v. Doctors Hosp. of Hyde Park, 909 F. Supp. 580, 581 (N.D. Ill. 1996). 4 Pro se plaintiffs may be held to “less stringent standards” when it comes to the sufficiency with which they plead factual allegations or elements of a claim. See Carter, 2016 WL 4217987, at *1; Richman, 2016 WL 3675886, at *1. But Inter-Fab has not challenged the sufficiency of allegations within Plaintiff’s Complaint. Therefore, “less stringent standards” should not apply. With respect gaining access to federal court, Plaintiff should be treated as any other litigant. Case 2:16-cv-02626-SHL-tmp Document 13 Filed 09/01/16 Page 3 of 5 PageID 32 Page 4 of 5 4828-6314-8343 v4 2902585-000002 litigant’s pro se status). For these reasons, the doctrine of equitable tolling is not applicable and should not apply. Based on the forgoing arguments and authorities, Inter-Fab respectfully requests that the Court grant this Motion and dismiss this lawsuit with prejudice. Inter-Fab respectfully requests any additional relief the Court deems warranted under the circumstances. This, the 1st day of September, 2016. Respectfully Submitted, INTER-FAB, INC. By Its Attorneys, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC By: s/ Zachary B. Busey ZACHARY B. BUSEY OF COUNSEL: Zachary B. Busey (Tenn. Bar No. 029763) R. Mark Glover (Tenn. Bar No. 06807) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, Tennessee 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-2303 E-mail: zbusey@bakerdonelson.com markglover@bakerdonelson.com Case 2:16-cv-02626-SHL-tmp Document 13 Filed 09/01/16 Page 4 of 5 PageID 33 Page 5 of 5 4828-6314-8343 v4 2902585-000002 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing document with the Clerk of the Court using the ECF system, which sent notification of the filing to all counsel of record, as well as Plaintiff (paulr6412@yahoo.com). This, the 1st day of September, 2016. s/ Zachary B. Busey ZACHARY B. BUSEY Case 2:16-cv-02626-SHL-tmp Document 13 Filed 09/01/16 Page 5 of 5 PageID 34