Cherry v. Southern Refrigerated Transport

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 16 Report and Recommendations; granting 8 Motion to Dismiss for Failure to State a Claim. Plaintiff's Complaint is dismissed with prejudice. Signed by Honorable Susan O. Hickey on August 3, 2015. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
RONALD CHERRY
v.

PLAINTIFF
Case No. 4:15-cv-04039

SOUTHERN REFRIGERATED TRANSPORT

DEFENDANT

ORDER
Before the Court is the Report and Recommendation filed July 13, 2015, by the Honorable
Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No.
16). Judge Bryant recommends Defendant’s Motion to Dismiss (ECF No. 8) be granted. Plaintiff
Ronald Cherry has filed a Motion to Reconsider. (ECF No. 17). The Court has interpreted this
document as a timely objection to the Report and Recommendation and will consider it as such.
Plaintiff filed his first lawsuit against Defendant on October 15, 2013. After Plaintiff failed
to comply with Orders of the Court, his Complaint was dismissed without prejudice on April 27,
2015. On the same day, Plaintiff filed this Complaint pro se against Defendant with identical claims,
along with claims of hostile work environment. He attached a July 15, 2013 Notice of Right to Sue
letter to the Complaint. Defendant filed a Motion to Dismiss, alleging failure to state a claim and
insufficient service of process. Judge Bryant recommends a finding that the limitations period has
run, and accordingly the untimely Complaint should be dismissed with prejudice under Federal Rule
of Civil Procedure 12(b)(6).
Cherry argues that the dismissal should be without prejudice instead of with prejudice
because he has presented facts that would support his claim. However, demonstrating that a claim
is or may be meritorious cannot save it from dismissal if the statute of limitations on the claim has

run. After thorough review of the submissions of parties, the Court finds that Plaintiff’s claim is
time barred and should be dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6).
Wycoff v. Menke, 773 F.2d 983, 984-85 (8th Cir. 1985) (when it appears from face of complaint itself
that limitation period has run, limitations defense may properly be asserted through Fed.R.Civ.P.
12(b)(6) motion to dismiss).
The Court adopts the Report and Recommendation in toto. Accordingly, the Defendant’s
Motion to Dismiss (ECF No. 8) is hereby GRANTED. Plaintiff’s Complaint (ECF No. 1) is
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 3rd day of August, 2015.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge