Cynthia Collins v. Dollar Tree Stores, Incorporat

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:09-cv-00486-JBF-FBS. Copies to all parties and the district court/agency. [998937400].. [10-1723]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1723

PAULA C. ANGLES; DEBORAH COLLINS; ELIZABETH A. GARRICK; EDNA
A. BOLTON; SONYA LYNN ANGELL; CANDY S. DICKINSON; SHIRLEY K.
FRELIX; PAULA HENRY; SANDRA MANNON; KATHLEEN SHALLOW;
KIMBERLY VELLER; JUANEMA OGLE; LILLIAN LEWIS; TABITHA A.
KNIGHT; MARY PFEUFER; CARMEN GARCIA; APRIL WEBSTER; DAPHNE
M. ROBINSON; DESIREE LIGHTFOOT; CHASSIDY HAMILTON; FRIEDA
SCOTT-BUTTS; ARACELI REYES; BRENDA WILLIAMS; MARIA D.
GONZALEZ; CARLOTA RZUCEK; DARLENE R. MARTIN; CAROLYN SABO;
SHERRY L. ALLISON; REBECCA TYLER-MILLS; MICHELE L. WAHL;
MELINDA J. ANDERSON, on behalf of themselves and others
similarly situated,
Plaintiffs – Appellants,
v.
DOLLAR TREE STORES, INCORPORATED,
Defendant – Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Jerome B. Friedman, Senior
District Judge. (2:09-cv-00486-JBF-FBS)

Argued:

January 24, 2012

Decided:

September 13, 2012

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Diaz joined.
Judge Davis wrote a
dissenting opinion.

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ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN &
PANTAZIS, PC, Birmingham, Alabama, for Appellants.
Kenneth
Martin Willner, PAUL HASTINGS LLP, Washington, D.C., for
Appellee. ON BRIEF: Gregory O. Wiggins, WIGGINS, CHILDS, QUINN
& PANTAZIS, PC, Birmingham, Alabama, for Appellants. Barbara B.
Brown, Carson H. Sullivan, PAUL HASTINGS LLP, Washington, D.C.;
Beth Hirsch Berman, WILLIAMS MULLEN, Norfolk, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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SHEDD, Circuit Judge:
Paula Angles and other named plaintiffs (collectively “the
Plaintiffs”) in this proposed class action appeal the dismissal
of their complaint as untimely.

For the following reasons, we

affirm.

I.
In 2008, the Plaintiffs filed an action against Dollar Tree
Stores in the Northern District of Alabama alleging claims under
the Equal Pay Act.

Collins v. Dollar Tree Stores, Inc., 2:08-

cv-1267 (Collins I). 1

Collins I is a collective class action

alleging that Dollar Tree paid female managers less than their
male counterparts.

As part of the action, notices were sent to

other female Dollar Tree store managers employed between 2006
and 2009.

At the time Collins I commenced, 31 of the 34 named

plaintiffs

had

discrimination

charges

pending

Employment Opportunity Commission (EEOC). 2

with

the

Equal

The EEOC sent right-

to-sue letters to those named plaintiffs between November 6,
2008 and April 24, 2009.

1

Cynthia Collins was originally the lead plaintiff in this
action as well. Pursuant to a settlement agreement with Dollar
Tree, she voluntarily dismissed her claims and Paula Angles
became the lead plaintiff.
2

Three of the named plaintiffs never filed an EEOC charge.

3

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On February 4, 2009, 90 days after the first right-to-sue
letters were mailed, the Plaintiffs moved pursuant to Federal
Rule of Civil Procedure 15 to amend their complaint in Collins I
to add sex discrimination claims under Title VII.

Dollar Tree

opposed the proposed amendment, arguing that proper venue for
the Title VII claims was in Virginia, not Alabama. 3

On February

20, 2009, the Plaintiffs filed a pleading labeled “Consent to
Severance and Reassignment of Title VII Claims,” requesting that
the Alabama district court sever the Title VII claims and assign
them to another judge.

The Plaintiffs noted that they moved to

sever and reassign the Title VII claims rather than simply file
a new complaint because “the defendant may then argue that the
ninety day limitations period . . . expired before such refiling.”

(J.A. 254).

Thus, “[i]n order to avoid such a risk,”

the Plaintiffs “consent only to the Title VII claims at issue
being

severed

and

reassigned

a

new

case

number

and

judge.”

(J.A. 254).
On June 17, the Alabama district court held a hearing on
the motion for leave to amend, noting that it was inclined to
deny

the

district

motion
court

as

also

futile
noted

because
that

3

the

venue

was

motion

improper.

for

“Consent”

The
was

Earlier, Dollar Tree had unsuccessfully moved to transfer
the Equal Pay Act claims to Virginia.

4

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improper

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because,

“[t]here’s

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nothing

for

you

to

consent

to

unless I amend, unless I grant your motion for leave to amend,
which, again, I’m inclined to deny.”

(J.A. 263).

Failing to

recognize the Alabama district court’s signal about their need
to file in the proper district, on July 9, the Plaintiffs filed
another motion to amend the complaint.

At this point, only 76

days had passed since the EEOC issued the April 24 right-to-sue
letters.
On September 30, 2009, the Alabama district court denied
the first motion for leave to amend as moot and the second
motion for leave to amend as futile because of improper venue.
The

next

day,

the

Plaintiffs

filed

a

new

complaint

in

the

Eastern District of Virginia stating the same Title VII claims
previously included in the proposed amended complaint in Collins
I.

Because the action was filed outside of Title VII’s 90-day

limitations period, the district court dismissed the complaint
as

untimely

filed.

In

doing

so,

the

court

rejected

the

Plaintiffs’ argument that moving to amend their complaint in
Collins I tolled Title VII’s statute of limitations and noted
that the case was not one that “turns on a plaintiff missing the
filing deadline by a few days.”

(J.A. 508).

The Plaintiffs

filed a Rule 59(e) motion to alter or amend the order, which the
district court denied.

The Plaintiffs then filed this appeal.

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II.
On appeal, the Plaintiffs argue that the district court
erred in finding that their Title VII claims are time-barred.
We

review

the

district

court’s

12(b)(6)

dismissal

de

novo,

Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th
Cir. 2010), and its denial of a Rule 59(e) motion for abuse of
discretion, Orem v. Rephann, 523 F.3d 442, 451 n.2 (4th Cir.
2008).
A.
At the outset, we note that the Plaintiffs do not dispute
that

their

complaint

limitations period.

was

filed

well

outside

the

relevant

Title VII requires that aggrieved persons

file a civil action within 90 days of receiving a right-to-sue
letter.

42

U.S.C.

§

letters

were

issued

2000e-5(f)(1).

on

April

24,

The

2009,

last

and

the

right-to-sue
Plaintiffs’

complaint was not filed until October 1, more than 150 days
later.
In the face of the clear untimeliness of this action, the
Plaintiffs contend that the filing of the motion for leave to
file

an

amended

complaint

limitations in this case.
Procedure

15

governs

the

in

Alabama

We disagree.
amendment

tolls

the

statute

of

Federal Rule of Civil
of

pleadings

and,

in

pertinent part, it provides that “a party may amend its pleading
only with the opposing party’s written consent or the court’s
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Fed. R. Civ. P. 15(a)(2). 4

leave.”

Under Rule 15, however, an

amended complaint is not actually “filed” until the court grants
“leave” for the amendment.

Murray v. Archambo, 132 F.3d 609,

612 (10th Cir. 1998) (noting “an amendment that has been filed
or

served

effect”).
State

without

leave

of

court

.

.

.

is

without

legal

For instance, in Bridges v. Department of Maryland

Police,

441

F.3d

197

(4th

Cir.

2006),

the

original

plaintiffs moved to amend their complaint to add 18 individual
would-be plaintiffs.

The district court denied the motion to

amend, concluding that the 18 would-be plaintiffs’ claims were
time barred.

The would-be plaintiffs appealed the denial of the

motion to amend, and we concluded that they lacked standing to
appeal because, with the motion to amend denied, they “never
became parties to the action.”

Bridges, 441 F.3d at 207.

The Fifth Circuit has explained the operation of Rule 15 in
this situation as follows:

4

In contrast to motions to amend, the initial filing of a
complaint is governed by Rule 3, which explains that “[a] civil
action is commenced by filing a complaint with the court.” Fed.
R. Civ. P. 3. In conjunction with Rule 3, Rule 5 provides that
a “paper is filed by delivering it” to “the clerk” or “a judge
who agrees to accept it for filing.”
Fed. R. Civ. P. 5(d)(2).
Under these rules, “[t]he original complaint [is] considered
filed when . . . placed in the possession of the clerk of the
district court.” 4 Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure § 1153, at 471 (3d ed.
2002).

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[F]ailing to request leave from the court when leave
is required makes a pleading more than technically
deficient. The failure to obtain leave results in an
amended complaint having no legal effect. Without
legal
effect,
it
cannot
toll
the
statute
of
limitations period.
U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296
(5th Cir. 2003) (emphasis added).
In

HealthSouth,

the

plaintiff,

Mathews,

filed

an

action

against his former employer under the False Claims Act on April
1,

1999.

Without

leave

of

the

court,

he

filed

an

amended

complaint on August 2, adding state law claims for, inter alia,
age

discrimination.

The

clerk

of

court

issued

Mathews

a

deficiency notice for failing to seek leave to file the amended
complaint, and on August 9, he complied with Rule 15(a) and
requested

leave

to

file

the

amended

district court granted the same day.

complaint,

which

the

The statute of limitations

on the age discrimination claim ran on August 4, 1999.

The

district court ultimately dismissed the age discrimination claim
as

time-barred

even

though

the

claim

was

timely

plaintiff first filed the amended complaint.
plaintiff

contended

discrimination
filed

the

explaining

that,

claim

amended
that

was

under
timely

complaint.

“[u]nder

Rule

“filed”
The

Rule

3

15(a),

Rule

on

August

[the

the

On appeal, the

and

Fifth

when

Circuit

5,
2

the

age

when

he

disagreed,

plaintiff]

needed

permission before his amended complaint could be filed, which he

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have

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on

August

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2.”

Id.

at

296.

Without

this

permission, the filing had “no legal effect” and “cannot toll
the statute of limitations period.”
further

noted

deficient

that,

pleading

while

Rule

“filed,”

5

Id.

The Fifth Circuit

would

because,

deem

“[a]s

the

a

technically

more

specific

rule with respect to amended pleadings, Rule 15(a), not Rule 5[]
governs.”

Id.

Likewise, in this case, although the Title VII claims were
timely when the Plaintiffs moved for leave to file the amended
complaint, the motion for leave was never granted.

The amended

complaint was thus never filed and lacks the ability to toll the
limitations

period.

This

conclusion

is

consistent

with

the

general rule that a Title VII complaint that has been filed but
then

dismissed

without

limitations period.

prejudice

does

not

toll

the

90-day

See, e.g., O’Donnell v. Vencor Inc., 466

F.3d 1104, 1111 (9th Cir. 2006) (“In instances where a complaint
is timely filed and later dismissed, the timely filing of the
complaint

does

not

toll

or

suspend

the

90-day

period.” (internal quotation marks omitted));

limitations

Simons v. Sw.

Petro-Chem, Inc., 28 F.3d 1029, 1030-31 (10th Cir. 1994) (same). 5
5

We have approved of this reasoning in several unpublished
cases.
See Quinn v. Watson, 119 Fed. App’x 517, 518 n.* (4th
Cir. 2005) (“In instances where a complaint is timely filed and
later dismissed, the timely filing of the complaint does not
‘toll’ or suspend the ninety-day limitations period.”).

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Seventh

context—“if

the

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Circuit

has

suit

dismissed

is

explained—outside
without

the

Title

prejudice,

VII

meaning

that it can be refiled, then the tolling effect of the filing of
the suit is wiped out and the statute of limitations is deemed
to

have

continued

accrued,

without

running

from

interruption

whenever
by

that

the

cause

filing.”

of

action

Elmore

v.

Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000).
B.
The

Plaintiffs

emphasize

effort to avoid this result. 6

several

lines

of

cases

in

an

First, the Plaintiffs correctly

note that courts have generally concluded that when a motion for
leave to amend is later granted, the amended complaint is deemed
timely

even

limitations

if

the

period

court’s
ends.

permission
This

rule

is
has

granted
been

after

explained

the
as

follows:
As a party has no control over when a court renders
its decision regarding the proposed amended complaint,
the submission of a motion for leave to amend,
properly accompanied by the proposed amended complaint
that provides notice of the substance of those
amendments, tolls the statute of limitations, even
6

As part of this argument, in their reply brief, the
Plaintiffs for the first time assert that this case is analogous
to situations in which plaintiffs file a request to proceed in
forma pauperis (IFP) in conjunction with their complaint.
Of
course, a party waives an argument by failing to raise it below,
United States v. Evans, 404 F.3d 227, 236 n.5 (4th Cir. 2005),
and by waiting to raise it until the reply brief, Cavallo v.
Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996).

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though technically the amended complaint will not be
filed until the court rules on the motion.
Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993).
Plaintiffs contend that this rule applies here.

The

The Plaintiffs’

argument on this point faces several problems, however.

First,

in each of the cases the Plaintiffs rely on, the motion for
leave to amend was granted and, as the district court explained,
the timeliness of the amended complaint in such cases “stems
from the confluence of the plaintiff’s timely preservation of
the issue for the court’s consideration . . . and the court’s
inherent power to enter a nunc pro tunc order on that motion
that retroactively causes the proposed amended complaint to be
considered filed as of the date of the motion.”
Indeed,

while

several

of

the

cases,

e.g.,

(J.A. 511 n.3).
Moore,

reference

“tolling,” earlier cases note that “where the petition for leave
to amend . . . has been filed prior to expiration of the statute
of

limitations,

filing

of

“amended
period.”
(8th

Cir.

the

while
amended

complaint

is

the

entry

of

complaint
deemed

the

have

filed

court

order

occurred

within

the

and

the

after,”

the

limitations

Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172, 1173
1989)

(emphasis

added). 7

7

The

Plaintiffs’

amended

This approach stems from a Fifth Circuit case that
predates the Federal Rules of Civil Procedure.
Rademaker v.
E.D. Flynn Exp. Co., 17 F.2d 15, 17 (5th Cir. 1927).

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complaint cannot be “deemed filed” in a timely fashion because
it was never accepted by the district court.

Moreover, none of

these cases suggests that denying a motion to file an amended
complaint in an earlier action in another jurisdiction tolls the
statute of limitations for a newly-filed action. 8
Second, the Plaintiffs rely on Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345 (1983), and American Pipe & Construction
Co. v. Utah, 414 U.S. 538 (1974).

In those cases, the Supreme

Court held that during the pendency of a class certification,
the statute of limitations on any individuals’ claims that would
be covered by the proposed class is tolled. 9

The Plaintiffs

8

In cases involving the relation back of an amended
complaint to an “original pleading,” under Rule 15(c), courts
have held that a complaint in one case may not relate back to a
complaint in another case to avoid the statute of limitations.
Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 994 (8th
Cir. 1989) (“Rule 15(c) concerns amendments to pleadings.
Its
plain language makes clear that it applies not to the filing of
a new complaint, but to the filing of an amendment”); Bailey v.
Northern Ind. Pub. Serv. Co., 910 F.2d 406, 413 (7th Cir. 1990)
(“Rule 15(c), by its terms, only applies to amended pleadings in
the same action as the original, timely pleading.”).
9

Some courts have referred to American Pipe/Crown, Cork &
Seal as “legal tolling” because it “is derived from a statutory
source” as opposed to the “judicially created” doctrine of
equitable tolling.
Arivella v. Lucent Technologies, Inc., 623
F.Supp.2d 164, 176 (D. Mass. 2009).
See also Joseph v. Wiles,
223 F.3d 1155, 1166-67 (10th Cir. 2000) (same).
We have
previously referred to them as a species of equitable tolling.
Bridges, 441 F.3d at 211 (“The American Pipe/Crown, Cork & Seal
equitable tolling rule is a limited exception to the universal
rule that statutes of limitations are impervious to equitable
exceptions.”).

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this

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argument

until

their

motion

for

reconsideration in the district court, and “Rule 59(e) motions
may not be used . . . to raise arguments which could have been
raised prior to the issuance of the judgment.”

Pac. Ins. Co. v.

Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
Regardless, we believe this argument is without merit.

American

Pipe/Crown, Cork & Seal tolling applies when a class action is
commenced by the filing of a complaint and tolls an individual’s
statute of limitations, not the statute of limitations for the
proposed class. 10

Bridges, 441 F.3d at 210 (noting that, under

American Pipe/Crown, Cork, & Seal, “all class members’ claims
are tolled at the time the class action is filed, regardless of
whether

the

actions”).
has

been

members

eventually

intervened

or

filed

new

Under this rule, “[o]nce the statute of limitations
tolled,

it

remains

tolled

for

all

members

putative class until class certification is denied.”
Cork & Seal, 462 U.S. at 354.

of

the

Crown,

The basis for tolling in those

cases was the successful operation of Rule 23 and the need to
avoid the filing of a multiplicity of suits by thousands of
10

Courts
have
consistently
concluded
that
American
Pipe/Crown, Cork & Seal do not permit class actions to toll the
statute of limitations for additional classes to be stacked upon
them. See Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir.
1998)
(“Plaintiffs may not stack one class action on top of
another and continue to toll the statute of limitations
indefinitely.”).

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plaintiffs in a putative class action.
concern

is

absent

in

this

case.

Id. at 349-51.

Moreover,

as

That

previously

discussed, the Title VII claims in this case were never “filed,”
because the Alabama district court denied the motion for leave
to

file

the

amended

complaint.

Even

assuming

American

Pipe/Crown, Cork, & Seal applied to a separate class action in a
different venue, the rule still requires the actual filing of an
action in the first instance, which never occurred in this case
with respect to the Title VII claims.
Accordingly, we find that neither the Rule 15 cases the
Plaintiffs
dealing

rely

with

on—which

nunc

pro

are

tunc

more

properly

power

than

characterized

tolling—nor

as

American

Pipe/Crown Cork & Seal provide relief for the untimely filing of
the Plaintiffs’ complaint.
C.
The Plaintiffs contend in the alternative that the statute
of

limitations

Equitable
limitations

should

tolling
and

is
is

be
a

equitably
narrow

appropriate

tolled

exception
“where

the

in
to

this

case.

statutes
defendant

of
has

wrongfully deceived or misled the plaintiff in order to conceal
the existence of a cause of action.”

English v. Pabst Brewing

Co., 828 F.2d 1047, 1049 (4th Cir. 1987).

The doctrine operates

to keep defendants from engaging in “misconduct that prevents
the plaintiff from filing his or her claim on time.”
14

Id.

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contrast, equitable tolling is not appropriate in cases where
“the claimant failed to exercise due diligence in preserving his
legal rights.”
96 (1990).

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,

We review the district court’s denial of equitable

tolling for abuse of discretion.

Chao v. Virginia Dep’t of

Transp., 291 F.3d 276, 279-80 (4th Cir. 2002).
Having

reviewed

the

record,

we

agree

with

the

district

court that equitable tolling is inappropriate in this case, and
we

certainly

can

discern

no

abuse

of

discretion

in

that

decision.

Our caselaw on equitable tolling has consistently

focused

external

on

factors

hampering

the

ability

to

file

timely claim, and no such factor is present in this case.

a

See

e.g., Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th
Cir. 2004) (quoting Kokotis v. United States Postal Serv., 223
F.3d 275, 280 (4th Cir. 2000) (noting equitable tolling “is not
appropriate, here, because [the plaintiff] did not allege that
[the

defendant]

deceived

or

misled

her

.

.

.

‘in

order

to

conceal the existence of a cause of action.’”)).
The Plaintiffs rely heavily on Burnett v. New York Central
Railroad Co., 380 U.S. 424 (1965), but, like the district court,
we believe that case is inapposite.

In Burnett, the plaintiff

timely filed an action under the Federal Employers’ Liability
Act (FELA) in an Ohio state court.
dismissed

the

action

for

improper
15

Id. at 424.
venue,

and

The state court
the

plaintiff

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refiled eight days later in federal court.

Id. at 425.

The

state action was timely filed, but the federal action was not.
Id.

at

426.

appropriate
action

The

because

in

state

Court
“when

court

held
a

that

plaintiff

having

equitable
begins

tolling

jurisdiction,

a
and

was

timely

FELA

serves

the

defendant with process and plaintiff’s case is dismissed for
improper

venue,

the

FELA

limitation

pendency of the state suit.”

is

tolled

Id. at 434-35.

during

the

The Court found it

significant that the plaintiff “did not sleep on his rights” but
timely filed an action in state court, that service of process
was made, that Ohio permitted waiver of venue objections, and
that

the

defendant

improper venue.
noted,

however,

railroad

Id. at 429.
there

are

itself

had

previously

waived

As the district court properly
“key

factual

and

procedural

distinctions” between Burnett and this case, namely that “unlike
in

Burnett,

no

timely

Title

VII

action

was

ever

actually

commenced” because the motion to amend was never granted.

(J.A.

516).
In affirming the district court’s conclusion on equitable
tolling,

we

emphasize

that

the

Plaintiffs

had

two

avenues

available to ensure that their rights were vindicated in this
litigation.

First, to the extent the Plaintiffs believe the

district court in Alabama committed legal error in denying the
motion to amend, they could have appealed that decision to the
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Pg: 17 of 27

The Plaintiffs are asking us to equitably

toll the statute of limitations, not because they were misled by
Dollar Tree, or provided inaccurate information by the EEOC, but
because of an unfavorable judicial decision—a decision that they
have not appealed.

Second, the Plaintiffs could have protected

themselves by timely filing an action in the Eastern District of
Virginia—an

option

still

available

at

the

time

the

district

court indicated that it was likely to reject the motion for
leave to amend.

The Plaintiffs declined to do so even though,

in their own motion for “Consent to Sever,” they recognized the
potential

statute

of

limitations

problems.

As

the

district

court explained, the “procedural details . . . highlight the
gamble

that

plaintiffs’

counsel

knowingly

made.

.

.

.

Plaintiffs’ counsel lost that gamble when [the Alabama district
court] denied the motion for leave to amend.”

(J.A. 519).

Accordingly, under these particular circumstances, we agree
with

the

district

court

that

equitable

tolling

was

not

appropriate.

III.
For the foregoing reasons, we affirm the district court’s
grant of Dollar Tree’s motion to dismiss.
AFFIRMED

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DAVIS, Circuit Judge, dissenting:
Not least because I am confident that Chief District Judge
Sharon Lovelace Blackburn of the United States District Court
for the Northern District of Alabama could not remotely have
believed, when she dismissed Appellants’ Title VII claims in
lieu of transferring venue to the Eastern District of Virginia,
that these Appellants would arrive at the Fourth Circuit only to
find the courthouse door locked, I respectfully dissent.
The majority ignores the compelling facts of this case and
principally relies on outside circuit authority that is not on
point to reach a fundamentally unfair result.
First, the majority unfairly takes the Appellants and their
counsel

to

task

for

filing

their

Title

VII

claims

in

the

Northern District of Alabama, suggesting that the outcome is
justified

here

because

suggests

the

Appellants’

“recogni[tion

of]

the

of

their

own

inaction.

consent

potential

to

The

severance

statute

of

majority
was

a

limitations

problems,” Maj. Op. at 4, 17, but fails to mention that the
Appellants only consented to severance because of the original
(senior
assignment

district)
of

any

judge’s
case

with

“standing
Rule

23

instruction

allegations.”

against
J.A.

257.

Indeed, in the consent to severance, they argued that venue was
proper in the Northern District of Alabama.

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Perhaps more problematic, the majority emphasizes that the
district court “signal[ed]” to the Appellants “about their need
to

file

in

signalling

the
had

proper
the

district,”

legal

effect

Maj.
of

a

Op.
final

at

5,

as

if

the

decision

on

the

matter. 1 The Appellants, however, did not know at that point that
venue was “improper” in the Northern District of Alabama and
cannot be faulted for failing to act on the judge’s mere passing
comments during the hearing. Moreover, counsel had to know, and
it seems they did know, 2 that the district court at this point
could have, and should have, transferred the Title VII claims.
1

I am quite uncertain what to make of the majority’s
observation that Appellants “[f]ail[ed] to recognize the Alabama
district court’s signal about their need to file in the proper
district,” Maj. Op. at 5, or how, precisely, that supports the
outcome reached by the majority. It is true that at the hearing
on the motion to amend in this case, Chief Judge Blackburn said
what the majority attributes to her. But, local legal culture
being whatever it is in the Northern District of Alabama, the
judge also referred during the hearing to counsel by his
nickname, “Bob.” J.A. 263. I have previously acknowledged that
“local legal culture drives [certain] practices.” Robinson v.
Wix Filtration Corp. LLC, 599 F.3d 403, 414 (4th Cir. 2010)
(Davis, J., concurring); Priestley v. Astrue, 651 F.3d 410, 420
(4th Cir. 2011) (Davis, J., concurring). Nevertheless, deciding
cases in this circuit on the basis of ostensible “signals” sent
by out-of-circuit district judges to out-of-circuit lawyers in
cases heard outside this circuit does not commend itself to me.
2

See J.A. 255 (citing, in consent to severance, a case for
the proposition that “the ‘interests of justice generally
instructs courts to transfer cases to the appropriate judicial
district, rather than dismiss them’”) (brackets and ellipses
omitted); Appellants’ Br. 3 (“Rather than transferring such
claims, however, Chief Judge Blackburn dismissed them without
prejudice to refiling in the Eastern District of Virginia.”).

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See 28 U.S.C. §§ 1404(a), 1406(a); Goldlawr, Inc. v. Heiman, 369
U.S. 463, 467 (1962); see also J.A. 517 (district judge in the
Eastern District of Virginia noting that the Court’s analysis in
Goldlawr “could perhaps have been employed” to justify granting
the motion and then transferring). And furthermore, the majority
seems to believe that most of the Appellants’ claims could have
been “saved” at this point by filing elsewhere. See Maj. Op. at
5 (“[O]nly 76 days had passed since the EEOC issued the April 24
right-to-sue letters.”). The majority turns a blind eye to the
whole truth: Only two named plaintiffs received the April 24
right-to sue letters; more than 90 days had passed since 29 of
the named plaintiffs had received the right-to-sue letters.
Second,

the

majority

conveniently

omits

important

facts

that show the fundamental unfairness of the result it reaches.
The Appellants did not engage in delay or unwisely “gamble” on
their claims by engaging in baseless litigation in the Northern
District of Alabama. Maj. Op. at 17 (quoting J.A. 519). Rather,
they had a sound legal basis for their belief that venue was
proper for the Title VII claims in the Northern District of
Alabama. They asserted that under Title VII each named plaintiff
did not need to independently show venue was properly laid in
the

district;

rather,

it

was

enough

for

at

least

one

named

plaintiff to be properly venued. See Appellants’ Br. 40. They
also asserted that they could rely on venue being proper for six
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of the named plaintiffs, or “class representatives,” J.A. 371,
while the remaining non-Alabama named plaintiffs could remain as
class members until the court decided whether there would be a
class. See Appellants’ Br. 40. They also relied on a pendent
venue argument. See id. Chief Judge Blackburn rejected these
arguments, but not on the basis of well-established Eleventh
Circuit precedent. 3 Rather, she relied on an unpublished Eleventh
Circuit case, 4 district court cases from other circuits, and the
doctrine of judicial estoppel. Moreover, as the Appellants point
3

Indeed, in making the final argument that leave should be
denied because venue was improper in its opposition, Dollar Tree
urged the court to “adopt the view of its sister courts in other
Circuits and require that each named plaintiff individually
satisfy the express venue provisions set forth in Title VII”
“[i]n the absence of Eleventh Circuit authority.” J.A. 241
(emphasis added).
4

The Eleventh Circuit has said,

“Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive
authority.” 11th Cir. R. 36–2. Furthermore, “[t]he
court may cite to [unpublished opinions] where they
are specifically relevant to determine whether the
predicates for res judicata, collateral estoppel, or
double jeopardy exist in the case, to ascertain the
law of the case, or to establish the procedural
history or facts of the case.” 11th Cir. R. 36, I.O.P.
7.
Borden v. Allen, 646 F.3d 785, 808 n.27 (11th Cir. 2011); see
also Boutwell v. Advance Constr. Servs., No. 07-0447-WS-C, 2007
WL 2988238, at *4 n.4 (S.D. Ala. Oct. 11, 2007) (“Even if
defendant’s construction of [Pinson v. Rumsfeld, 192 F. App’x
811 (11th Cir. 2006), the case relied upon by Chief Judge
Blackburn] were valid, which it is not, the fact remains that
Pinson is unpublished and therefore nonbinding.”).

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out in their brief, “in an identical case,” a district judge in
the Northern District of Alabama had ruled “that out-of-state
Store Managers for a rival dollar store chaing [sic] could bring
their Title VII claims in the same district as their parallel
EPA

claims.”

Appellants’

Br.

36-37

(citing

Colvert

v.

Dolgencorp, Inc., Order, No. 2:06-cv-465-veh (N.D. Ala. Nov. 30,
2007)). Thus, despite having a legal foundation for filing in
the Northern District of Alabama, because Chief Judge Blackburn
denied

their

motion

to

amend

and

failed

to

transfer

their

claims, even though Appellants filed the instant complaint the
very next day in the Eastern District of Virginia, Appellants
have

been

denied

their

deserved

day

in

court.

This

is

unconscionable.
Third, the majority compounds this fundamental injustice by
relying principally on outside circuit authority, which is not
on

point,

instead

of

more

compelling

reasoning

behind

cases

cited by the Appellants, which are entirely consistent with the
letter and the spirit of the Federal Rules of Civil Procedure
and

the

purpose

of

statutes

of

5

limitations

generally. 5

The

The Fourth Circuit case the majority relies upon to reach
its conclusion is inapposite. In Bridges v. Department of
Maryland State Police, 441 F.3d 197, 206-07 (4th Cir. 2006),
this court had no reason to directly construe Rule 15, but
instead considered whether would-be plaintiffs had standing to
appeal.

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principally

Pg: 23 of 27

on

U.S.

ex

rel.

Mathews

v.

HealthSouth Corp., 332 F.3d 293 (5th Cir. 2003), which concerned
the requirement under Rule 15 to request leave of the court
before filing an amended complaint. There, the plaintiff only
ever properly filed the correct documents, a motion requesting
leave to amend and the amended complaint, after the limitations
period had run. Id. at 295. Thus, the court had no need to
address whether, as here, the limitations period is tolled where
a party moves for leave to file the amended complaint when the
claims are timely but the motion for leave is not granted.
The cases relied on by the Appellants, which the majority
rejects, are also admittedly not directly on point, but are more
consistent with the purpose behind the rules of civil procedure
and limitations periods generally. As the majority notes, courts
have generally concluded that, when a motion for leave to amend
is later granted, the amended complaint is deemed timely even if
the court’s permission is granted after the limitations period
ends. At least one of the underlying reasons justifying this
result is that plaintiffs “ha[ve] no control over when a court
renders its decision regarding the proposed amended complaint.”
Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993); see also
Sellers v. Butler, No. 02-3055-DJW, 2007 WL 2042513, at *12 (D.
Kan.

July

12,

2007)

(“To

hold

otherwise

would

punish

the

plaintiff for the Court’s unavoidable delay in issuing the order
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granting leave to amend the complaint.”). This fairness concern
applies equally where the motion for leave to amend is granted
as where it is denied; indeed, the concern is heightened where
the motion is ultimately denied. It is particularly apt here.
Allowing tolling under this rule is more consistent with
the policies behind the Federal Rules of Civil Procedure. Rule
1, which “governs all the rest,” Aikens v. Ingram, 652 F.3d 496,
519 (4th Cir. 2011) (King, J., dissenting), provides that the
Federal

Rules

administered

of
to

Civil
secure

Procedure
the

just,

“should

be

speedy,

construed

and

and

inexpensive

determination of every action and proceeding.” The Appellants’
decision to amend their complaint to add their parallel Title
VII claims to the pending EPA claims in the Northern District of
Alabama

is

wholly

consistent

with

this

rule.

It

was

also

consistent with Rule 23, which “permits and encourages class
members to rely on the named plaintiffs to press their claims”
and to avoid a “needless multiplicity of actions,” Crown, Cork &
Seal Co. v. Parker, 462 U.S. 345, 351-53 (1983), and Rule 15,
which is to be applied liberally to ensure “that pleadings are
not an end in themselves but are only a means to assist in the
presentation

of

a

case

to

enable

it

to

be

decided

on

the

merits,” Wright et al., Federal Practice and Procedure § 1473
(3d ed. 2010). Furthermore, the defendants had notice and would
not have been prejudiced in any fashion by allowing the case to
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proceed to the merits. 6 See Crown, Cork & Seal, 462 U.S. at 352
(“Limitations periods are intended to put defendants on notice

6

In dismissing this case, the district judge in the Eastern
District of Virginia observed:
The court notes at the outset of this discussion
plaintiffs’ position that any claim by defendant of
prejudice in this connection is dubious. As noted
above, this case involves substantially the same named
plaintiffs (and putative plaintiff class) as those in
Collins I, suing the same defendant for a claim
arising out of the same conduct set out in the
original complaint in Collins I. Moreover, defendant
clearly had actual notice within the statute of
limitations period--in the form of the motion for
leave to amend in Collins I, which attached the
proposed amended complaint--of plaintiffs’ intent to
pursue a Title VII claim in addition to its existing
Equal Pay Act claim. It is therefore entirely
arguable,
and
even
somewhat
persuasive,
that
permitting this case to proceed would not offend the
admittedly strong policy considerations underlying the
statute of limitations defense.
J.A. 514-15.
Similarly, in denying the Appellee’s post-judgment motion
for attorney’s fees and sanctions, the lower court had this
trenchant observation:
Indeed, in a sense, plaintiffs were merely doing what
Judge Blackburn’s decision on their motions for leave
to amend the Collins I complaint forced them to do;
namely, to bring their Title VII claim as a separate
action in this court, where, it should be noted,
defendant had repeatedly argued venue was proper. It
is somewhat ironic that defendant now seeks to
characterize
as
vexatious
multiplication
of
proceedings the very act that it had previously
chastised plaintiffs for not doing; namely, filing
their Title VII claim against defendant in this court
instead of in the Northern District of Alabama.
(Continued)
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of adverse claims and to prevent plaintiffs from sleeping on
their

rights

.

purposes

of

multiple

.

these

courts,

.

.”).

rules

The
by

deterring

majority’s
encouraging

similar

ruling

contorts

multiple

plaintiffs

in

filings

the
in

collective

actions from bringing parallel claims, and ensuring that this
case is not decided on the merits. 7
At the end of the day, I am confident that if Chief Judge
Blackburn had any inkling whatsoever that in dismissing rather
than

transferring

this

action,

she

would

foreclose

further

proceedings, she would take it all back. I would act on that
confidence and reverse the order dismissing this case and remand
for further proceedings. 8

Collins v. Dollar Tree Stores, Inc., Opinion and Order, No.
2:09-cv-00486-JBF, at 21-22 (E.D. Va. May 28, 2010) (final
emphasis added).
7

Plainly, under the circumstances of this case, we should
allow “the limitations period to be tolled during the pendency
of related litigation because it [is] consistent with the
[remedial Title VII] statutory scheme and equitable principles
to do so.” Bowen v. City of New York, 476 U.S. 467, 479 n.11
(1986) (alterations added); see also Honda v. Clark, 386 U.S.
484, 501 (1967) (“We consider it much more consistent with the
overall congressional purpose to apply a traditional equitable
tolling principle, aptly suited to the particular facts of this
case and nowhere eschewed by Congress, to preserve petitioners’
cause of action.”).
8

My confidence is bolstered by Chief Judge Blackburn’s
recognition of the potential harshness of the result, see J.A.
371, and allusion to the alleged “futility” of the Appellants’
Title VII claims. But see J.A. 283 (Chief Judge Blackburn
(Continued)
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Respectfully, I dissent.

recognizing that Appellants’ time to file a complaint in another
venue might have run). But in the circumstances of this case, or
any case for that matter, the ostensible “futility” of a claim
for purposes of Rule 15’s liberal amendment provisions bespeaks
the “legal insufficiency” of such a claim, not the simple fact
of mislaid venue. Cf. Burger King Corp. v. Weaver, 169 F.3d
1310, 1320 (11th Cir. 1999). After all, the very purpose of the
venue transfer provisions of 28 U.S.C. §§ 1404(a) and 1406(a) is
to correct the kind of inconsequential error in selecting venue
as is apparent in this case.
A simple thought experiment demonstrates the correctness of
such an outcome. Imagine that a putative class action was timely
filed under Title VII laying venue in the Western District of
North Carolina but where, arguably, venue lies only in the
District of South Carolina. Several months after a hearing on
the defendants’ contested motion to dismiss (or, as here,
alternatively, to transfer) for improper venue, and after the
ninety-day period for filing a new action had expired, the
district court dismisses the case rather than transferring it to
South Carolina. I have no doubt that this court would reverse a
decision of the South Carolina district court dismissing a
newly-filed action in that district, whether on the basis of
legal tolling, equitable tolling, or a plain vanilla abuse of
discretion determination. The same result should obtain here.

27