Nagim v. Suncor Energy Corp
ORDER of Dismissal. ORDERED that the Complaint and the action are dismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. FURTHER ORDERED that Mr. Nagim's Motion to Amend 13 is denied as unnecessary. FURTHER ORDERED that Defendant's Motion to Dismiss and for Attorney's Fees 16 is denied as moot, by Judge Lewis T. Babcock on 4/27/12.(lygsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03363-BNB
RONALD J. NAGIM,
SUNCOR ENERGY, CORP.,
ORDER OF DISMISSAL
Plaintiff, Ronald J. Nagim, currently resides in Aurora, Colorado. Mr. Nagim,
acting pro se, initiated this action by filing a Complaint and a Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915. On January 4, 2012, Magistrate
Judge Boyd N. Boland ordered Mr. Nagim to file his claims on a Court-approved form
and to show cause why the § 1915 Motion should not be denied.
On January 9, 2012, Mr. Nagim filed a Motion to Appeal, in which he challenges
Magistrate Judge Boyd N. Boland’s January 4 Order to Show Cause. The Motion to
Appeal was construed in part as a motion to recuse filed pursuant to 28 U.S.C. § 455(a)
and in part as an objection filed pursuant to 28 U.S.C. § 636(b)(1)(A). Magistrate Judge
Boland denied the motion to recuse, and this Court overruled Mr. Nagim’s objections to
the January 4 Order. Mr. Nagim subsequently responded to the January 4 Order to
Show Cause and filed his complaint on a Court-approved form.
Based on the January 4 Response, Magistrate Judge Boland granted Mr. Nagim
leave to proceed pursuant to § 1915. Magistrate Judge Boland also, after reviewing the
Complaint, instructed Mr. Nagim to file an Amended Complaint that complied with Fed.
R. Civ. P. 8. Mr. Nagim had failed to set forth a short and plain statement citing the
proper statutory authority for his Complaint.
On March 5, 2012, Mr. Nagim filed a Title VII Amended Complaint against
Suncor. The Court must construe the action and Amended Complaint liberally because
Mr. Nagim is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not act as
a pro se litigant’s advocate. Hall, 935 F.2d at 1110. The Court will dismiss this action
for the following reasons.
The claims Mr. Nagim asserts in this action were raised in and dismissed by
Chief Judge Wiley Y. Daniel in Nagim v. Walker, et al., No. 10-cv-02973-WYD-KLM (D.
Colo. Jan. 4, 2012) (unpublished), pursuant to Mr. Nagim’s request that the action be
dismissed with prejudice. Nagim, No. 10-cv-02973 at Doc. No. 105. “A voluntary
dismissal with prejudice operates as a final adjudication on the merits,” Schmier v.
McDonald’s LLC, 569 F.3d 1240, 1242 (10th Cir. 2009) (quoting Warfield v. AlliedSIgnal
TBS Holdings, Inc., 267 F.3d 538, 542 (6th Cir. 2001)), and is thus a ”final judgment,”
Schmier, 569 F.3d at 1242 (quoting Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C.
Cir. 1987)). The Defendant in this action, however, is different from the defendants Mr.
Nagim named in Case No. 10-cv-02973.
The Court may raise subject matter jurisdiction sua sponte at any time during the
course of the proceedings, see McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252
(10th Cir. 1988). The Court also must first address subject matter jurisdiction
before addressing any claim preclusion issue, see In re Franklin Savings Corp., Inc.,
385 F.3d 1279, 1286 (10th Cir. 2004).
Under Title VII of the Civil Rights Act of 1964, the exhaustion of administrative
remedies is a jurisdictional prerequisite to instituting an action in federal court. See
Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996), cert denied, 520 U.S. 1115
(1997); see also Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1325 (10th
Cir. 2002) (noting that “a failure to file an administrative charge at all . . . is a
jurisdictional bar”) (citing Jones, 91 F.3d at 1399 n.1). The failure to file an
administrative Title VII claim before bringing suit is jurisdictionally fatal and requires
dismissal. See Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.
“The party seeking to invoke the jurisdiction of a federal court must demonstrate
that the case is within the court’s jurisdiction.” United States v. Bustillos, 31 F.3d 931,
933 (10th Cir. 1994). Mr. Nagim acknowledges that he has not filed an administrative
Title VII charge. He contends that he contacted the Equal Employment Opportunity
Commission (EEOC) and was told he could proceed with a lawsuit without filing a
charge with the Commission if he believed there was sufficient evidence to prove his
case. Am. Compl., Doc. No. 12, at 4. Mr. Nagim further claims that the EEOC
advertises it is not necessary to file a charge with the Commission.
Mr. Nagim’s argument lacks merit. The EEOC’s website,
http://www.eeoc.gov/employees/lawsuit.cfm, instructs individuals that prior to filing a
lawsuit alleging discrimination they must file a charge with one of the EEOC field offices
and receive a Notice-of-Right-to-Sue before filing a lawsuit. The website discusses
exceptions to this procedure. None of the exceptions apply to Mr. Nagim. Also, nothing
under 42 U.S.C. § 2000e provides for Mr. Nagim to forego filing a charge with the
EEOC prior to pursuing his Title VII claims in this Court. The action clearly lacks subject
matter jurisdiction. The Court, therefore, will refrain from addressing any issue
preclusion or the merits of the Title VII claims.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Nagim files a notice of appeal he must pay the full $455 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Complaint and the action are dismissed without prejudice
pursuant to Fed. R. Civ. P. 12(h)(3). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that Mr. Nagim’s Motion to Amend, Doc. No. 13, is denied
as unnecessary. It is
FURTHER ORDERED that Defendant’s Motion to Dismiss and for Attorney’s
Fees, Doc. No. 16, is denied as moot.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Judge
UNITED STATES DISTRICT COURT
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