Pryor v. Posner-Volper Company, Inc., et al
ORDER denying 12 Motion to Dismiss. Signed by Chief Judge William H. Steele on 6/1/2016. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
POSNER-VOLPER COMPANY, INC.,
) CIVIL ACTION 16-0146-WS-M
The entity defendant (“Posner”) has filed a Rule 12(b)(6) motion to dismiss
Counts One and Two, which assert causes of action under Title VII. (Doc. 12).
The asserted ground is that the plaintiff failed to file his complaint within the 90day period provided by 42 U.S.C. § 2000e-5(f)(1). (Doc. 13).
The complaint was filed on April 7, 2016. (Doc. 1). The EEOC’s right-tosue letter is dated January 4, 2016 and states that it was mailed the same date.
(Doc. 1-1). Posner correctly notes that there are 94 days between these two dates.
Posner recognizes that the 90-day period does not run from the date of mailing but
“‘only upon actual receipt,’”1 but Posner points out that, “[w]hen the date of
receipt is in dispute, this court has applied a presumption of three days for receipt
by mail ….” Kerr v. McDonald’s Corp., 427 F.3d 947, 953 n.9 (11th Cir. 2005).
Posner concludes from these circumstances that it is “painstakingly clear” that the
complaint was filed at least 91 days after the plaintiff received the right-to-sue
The complaint, however, expressly alleges that, “[o]n January 8, 2016,
Plaintiff received from the EEOC his notice of right to sue.” (Doc. 1 at 2, ¶ 7). If
(Doc. 13 at 3 (quoting Franks v. Bowman Transportation Co., 495 F.2d 398, 404
(5 Cir. 1974)).
this allegation is correct, the complaint was filed on the 90th day thereafter and is
thus timely. Posner acknowledges that “the court must assume that all the factual
allegations set forth in the complaint are true,” (Doc. 13 at 2), but it then dismisses
the plaintiff’s quintessentially factual allegation regarding receipt as an
“unsubstantiated recital” due to be disregarded under the authority of Ashcroft v.
Iqbal, 556 U.S. 662 (2009). (Doc. 13 at 3-4). Iqbal, however, requires only
plausible factual allegations, id. at 678, and anyone with any experience with the
postal service knows that a four-day delivery period is more than plausible. Nor is
it implausible that a plaintiff would know the day he received such a mailing.
“Not surprisingly, our cases say that a Rule 12(b)(6) dismissal on statute of
limitations grounds is appropriate only if it is apparent from the face of the
complaint that the claim is time-barred.” LaGrasta v. First Union Securities, Inc.,
358 F.3d 840, 845 (11th Cir. 2004) (internal quotes omitted). Because the
complaint plausibly alleges receipt of the right-to-sue letter within 90 days before
the complaint was filed, the face of the complaint does not demonstrate that
Counts One and Two are time-barred.
For the reasons set forth above, Posner’s motion to dismiss is denied.
DONE and ORDERED this 1st day of June, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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