Jones v. Kelly et al
ORDER granting 5 Motion to Dismiss battery claim, finding that Plaintiff's battery claim is time-barred. Signed by Honorable Susan O. Hickey on June 20, 2013. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISCTRICT OF ARKANSAS
CASE NO. 12-CV-4101
JOHN KELLY and TRUMAN
Before the court is a Motion to Dismiss filed by Separate Defendant Truman Arnold
Companies (“TAC”). (ECF No. 5). Plaintiff has responded to the motion. (ECF No. 16). The
Court finds that the motion is ripe for consideration.
Plaintiff claims that Separate Defendant TAC violated Title VII of the Civil Rights Act
and the Arkansas Civil Rights Act. Plaintiff further alleges claims of battery, outrage, negligent
supervision and retention, and defamation against TAC. In the present motion, Defendant moves
the Court to dismiss Plaintiff’s battery claim because it was not filed within the one-year statute
of limitations. Plaintiff argues that she did not have a right-to-sue letter from the Equal
Employment Opportunity Commission (EEOC) in time to assert federal jurisdiction with respect
to the civil rights claims prior to the running of the statute of limitations on the state law battery
claim. Plaintiff asserts that she filed suit on the battery claim in Miller County state court on May
2, 2012, within the one-year statute of limitations and should be allowed dismiss her state court
lawsuit and pursue her state law battery claim in federal court. Plaintiff, however, cites no
authority in support of this assertion.
Because this case is before the Court on the basis of diversity jurisdiction, the Court will
apply the law of Arkansas when ruling on statutes of limitations. See Pinnacle Pizza Co., Inc. v.
Little Caesar Enterprises, Inc., 598 F.3d 970, 976 (8th Cir. 2010). Under Arkansas law, the
statute of limitations for battery is one year. ARK. CODE ANN. § 16-56-104. Here, Plaintiff
alleges that the battery occurred on May 24, 2011. Plaintiff, however, did not file her federal
lawsuit until August 29, 2012, approximately three months after the statute of limitations had run
on her battery claim.
The Eighth Circuit has not considered whether the filing of an administrative charge with
the EEOC tolls the statute of limitations as to state law tort claims arising out of the same action.
Other circuits, however, have held that a state statute of limitations is not tolled by the pendency
of an individual’s administrative complaint filed with the EEOC. See, e.g., Juarez v. Ameritech
Mobile Communications, Inc., 957 F.2d 317, 322-23 (7th Cir. 1992) (filing of EEOC charge did
not toll the statute of limitations on employee’s state law invasion of privacy claim); Arnold v.
U.S., 816 F.2d 1306, 1312-13 (9th Cir. 1987) (holding that state law tort claims are not tolled
during pendency of Title VII action); Dupree v. Hutchins Bros., 521 F.2d 236, 238 (5th Cir.
1975) (finding state statute of limitations for § 1981 action was not tolled during pendency of
The present case is analogous to Simmons v. Mobile Infirmary Medical Center, 391 F.
Supp. 2d 1124 (S.D. Ala. 2005), in which the plaintiff brought Title VII claims against her
employer for hostile work environment and a claim for negligent supervision under Alabama
law. Plaintiff also brought a state law battery claim against her supervisor. The court found that
the plaintiff’s battery claim was barred by the applicable statute of limitations and stated that “it
is well-established that the statute of limitations for a plaintiff’s state law claims is not tolled
while the plaintiff is pursuing administrative remedies with the EEOC.” See also Gardner v. St.
Bonaventure Univ., 171 F. Supp. 2d 118, 131 (W.D.N.Y. 2001) (refusing to toll the statute of
limitations for state law claims during pendency of EEOC proceeding).
Here, the Court finds that the one-year statute of limitations for Plaintiff’s battery claim
was not tolled while Plaintiff’s EEOC charge was pending. Accordingly, Plaintiff’s battery claim
is time-barred and Defendant’s motion to dismiss that cause of action (ECF No. 5) is
IT IS SO ORDERED, this 20th day of June, 2013.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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