McDowell v. Tankinetics, Inc. et al
MEMORANDUM OPINION AND ORDER granting defendants' 16 Motion to Dismiss and defendants' 17 Motion to Dismiss for Failure to State a Claim and plaintiff's complaint is dismissed in its entirety as set forth. Signed by Honorable P. K. Holmes, III on September 12, 2012. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DAVID H. MCDOWELL
Case No. 3:12-CV-03067
WILLIAM K. ANGLE;
STRAND COMPOSITE ENGINEERING
& CONSTRUCTION, LLC;
ST. CLAIR P. GUESS, III;
WILLIAM F. SCHWARZ; and
ROBERT W. McMANUS
MEMORANDUM OPINION AND ORDER
Before the Court are Separate Defendant Strand Composite Engineering & Construction,
LLC’s (“Strand”) Motion to Dismiss (Doc. 16) and brief in support (Doc. 15); Separate Defendants
Clair P. Guess, III, Robert W. McManus, William F. Schwartz, and Tankinetics, Inc.’s (the
“Tankinetics Defendants”) Motion to Dismiss (Doc. 17); and Plaintiff’s Response in Opposition to
both Motions (Doc. 18).1 The Tankinetics Defendants’ Motion to Dismiss expressly adopts the
positions and arguments set forth in Defendant Strand’s Motion and brief in support, thus hereinafter
Defendant Strand and the Tankinetics Defendants will be referred to collectively as the
For the reasons described below, the Court finds that both pending Motions to Dismiss
(Docs. 16 and 17) should be GRANTED. The effect of the ruling of the Court on these matters is
that with respect to all Defendants, Count I of the Complaint is DISMISSED WITH PREJUDICE,
The Court declines to consider Defendant Strand’s Reply in Support of Motion to Dismiss (Doc.
19), the Tankinetics Defendants’ Reply in Support of Motion to Dismiss (Doc. 20), and Plaintiff’s
Sur-Reply to Defendants’ Reply in Support of Motion to Dismiss (Doc. 21), as they were filed
without leave of court. See L.R. W.D. Ark. 7.2 (providing for replies to be filed only with regard
to summary judgment motions).
Count II is DISMISSED WITH PREJUDICE to the extent it seeks relief under the Age
Discrimination and Employment Act (ADEA) and DISMISSED WITHOUT PREJUDICE to the
extent it states a claim under state law, and Count III is DISMISSED WITHOUT PREJUDICE.
Plaintiff David H. McDowell is a 78-year-old professional engineer currently employed by
Defendants. The Complaint alleges that Defendants discriminated against Plaintiff in that his
compensation, terms, conditions, or privileges of employment were reduced and restricted because
of Plaintiff’s age. Plaintiff timely filed a written charge of discrimination with the Equal
Employment Opportunity Commission (EEOC). The EEOC issued a right-to-sue letter (Doc. 14)
on April 4, 2011, which the Plaintiff initialed as received on April 6, 2011. (Doc. 14). Plaintiff
timely filed a complaint in the Circuit Court for Taney County, Missouri. (Doc. 1, p. 5). The action
was removed to the United States District Court for the Western District of Missouri and dismissed
without prejudice on March 8, 2012. Id. On June 11, 2012, Plaintiff filed a Complaint in this Court
asserting age discrimination in violation of 29 U.S.C. § 623 and negligent supervision under
Arkansas state law.
II. Legal Standard
In ruling on a motion to dismiss, the Court accepts as true all of the factual allegations
contained in a complaint and reviews the complaint to determine whether its allegations show that
the pleader is entitled to relief. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.
2008). All reasonable inferences from the complaint must be drawn in favor of the non-moving
Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004).
Complaints should be liberally construed in the plaintiff’s favor and “should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Rucci v. City of Pacific, 327 F.3d 651, 652
(8th Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
A. Count I: Age Discrimination under 29 U.S.C. § 623
“[W]hen it appears from the face of the complaint itself that the limitation period has run,
a limitations defense may be properly asserted through a 12(b)(6) motion to dismiss.” Wycoff v.
Menke, 773 F.2d 983, 984-985 (8th Cir. 1985) (internal quotation omitted). This is precisely what
the Defendants have done in this case with regard to Plaintiff’s ADEA claim. Under the ADEA, a
civil action may be brought against the respondent named in the EEOC charge within 90 days after
the date of the receipt of a right-to-sue letter. 29 U.S.C. § 626(e). Federal regulations provide that
“[t]he right of an aggrieved person to file suit expires 90 days after receipt of the Notice of Dismissal
or Termination or upon commencement of an action by the Commission to enforce the right of such
person.” 29 C.F.R. § 1626.18(c). The right-to-sue letter itself clearly states that a lawsuit brought
under the ADEA “must be filed WITHIN 90 DAYS of your receipt of this notice; or your right
to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state
law may be different.)” (Doc. 14) (emphasis in original). See Littell v. Aid Ass'n for Lutherans, 62
F.3d 257, 259 (8th Cir.1995) (“[F]ailure to file suit within ninety days after the receipt of a notice
from the EEOC renders a plaintiff's action untimely.”).
The 90-day filing period under the ADEA operates as an explicit federal statute of
limitations. See Garrison v. Int'l Paper Co., 714 F.2d 757, 759 (8th Cir. 1983) (citing Holmberg v.
Armbrecht, 327 U.S. 392, 395 (1946) (“If Congress explicitly puts a limit upon the time for
enforcing a right which it created, there is an end of the matter.”)). “State tolling and savings
provisions do not apply when Congress has provided a federal statute of limitations for a federal
claim.” Victor Foods, Inc. v. Crossroads Economic Dev., Inc., 977 F.2d 1224, 1227 (8th Cir. 1992);
see also Jessie v. Potter, 516 F.3d 709, 714 (8th Cir. 2008). Plaintiff filed his Complaint alleging
age discrimination in violation of the ADEA on June 11, 2012, which is four hundred and thirty-two
(432) days after receiving a right-to-sue letter from the EEOC. Even if the limitations period started
again after the involuntary dismissal on March 8, 2012, Plaintiff’s ADEA claim is still barred as
untimely because the Complaint was filed five days after the 90-day time limit. Therefore, it is
unnecessary for the Court to determine whether the statute of limitations was tolled by the filing of
a complaint in the Circuit Court for Taney County, Missouri. The Arkansas savings statute does not
apply to a federal cause of action that is subject to an express federal statute of limitations.
The Court cannot imagine any set of facts which Plaintiff may be able to prove that
would entitle them to relief from their ADEA claim being time-barred. Therefore, Count I must
be DISMISSED WITH PREJUDICE.
B. Count II: Mental Anguish and Emotional Distress
Count II of the Complaint requests relief for mental anguish and emotional distress. In
Plaintiff’s Response in Opposition to Defendants’ Motions to Dismiss, Plaintiff argues that he is
entitled to an award of compensatory damages under the ADEA, and that emotional distress
damages are included in compensatory damages. (Doc. 18, p. 4). To the extent the allegations in
Count II seek damages in connection with the ADEA claim in Count I, Count II is barred by the
applicable statute of limitations, as discussed above.
While not addressed by the Plaintiff in his Response, an alternative reading of Count II is
that it attempts to allege a separate state law claim for outrage. Because Defendants are entitled to
dismissal of Plaintiff's ADEA claims, which constitute the basis for this Court's exercise of federal
jurisdiction, to the extent Count II alleges a state law claim, the Court declines to take supplemental
jurisdiction and therefore will not opine here as to whether the claim is meritorious. The United
States Supreme Court has observed that “in the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine . . . will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988). See also United Mine
Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should
be dismissed as well”); 28 U.S.C.A. § 1367(c)(3) (“The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over
which it has original jurisdiction . . .”).
Therefore, to the extent Count II reflects a claim under the ADEA, Count II is time-barred
and must be DISMISSED WITH PREJUDICE. To the extent Count II reflects a state law claim for
outrage, the Court declines to take supplemental jurisdiction over Count II and this claim is
DISMISSED WITHOUT PREJUDICE.
C. Count III: Negligent Supervision
Count III purports to state a claim pursuant to Arkansas law for negligent supervision. The
Court declines to take supplemental jurisdiction over this remaining claim and therefore will not
opine here as to whether the claim is meritorious. Count III is therefore DISMISSED WITHOUT
The Court has determined that the Defendants’ Motions to Dismiss (Docs. 16 and 17) should
be GRANTED and Plaintiff’s Complaint dismissed in its entirety.
IT IS THEREFORE ORDERED that Count I of Plaintiff’s Complaint is DISMISSED WITH
PREJUDICE as time-barred.
IT IS FURTHER ORDERED that Count II for mental anguish and emotional distress is
DISMISSED WITH PREJUDICE to the extent it seeks damages under the ADEA because the claim
IT IS FURTHER ORDERED that because Plaintiff’s federal claims forming the basis for
this Court’s jurisdiction have been dismissed with prejudice, Count II, to the extent it alleges a state
law claim for outrage, and Count III—Plaintiff’s remaining state law claim for negligent
supervision— are DISMISSED WITHOUT PREJUDICE, as the Court declines to take supplemental
jurisdiction of these claims.
IT IS SO ORDERED this 12th day of September, 2012.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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