SMITH v. ZAXBY'S FRANCHISING LLC et al
ORDER Dismissing Plaintiff's Recast Complaint re 5 Recast Complaint/Petition, filed by MARJORIE ANN SMITH. Plaintiffs Recast Complaint is barred by the statute of limitations and therefore must be DISMISSED. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 9/9/2021. (ggs)
Case 3:21-cv-00088-CAR Document 6 Filed 09/09/21 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MARJORIE ANN SMITH,
ZAXBY’S FRANCHISING, LLC,
and RESTAURANT SYSTEMS
ORDER DISMISSING PLAINTIFF’S RECAST COMPLAINT
Currently before the Court is pro se Plaintiff Marjorie Smith’s Recast Complaint
[Doc. 5]. Plaintiff seeks to initiate a lawsuit against Defendants for terminating her
employment based on her race, in violation of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e-2(a) (“Title VII”). For the reasons explained below, the Court DISMISSES
Plaintiff’s Recast Complaint [Doc. 5] as untimely.
On August 24, 2021, the Court granted Plaintiff’s motion to proceed in forma
pauperis but did not allow the complaint to be served because it was filed outside the 90day right-to-sue window provided by the EEOC and was therefore untimely. [Doc. 3].
Rather than dismiss the Complaint, the Court provided Plaintiff the opportunity to file a
recast complaint. The Court specifically ordered her to file a recast complaint within 21
Case 3:21-cv-00088-CAR Document 6 Filed 09/09/21 Page 2 of 3
days “asserting allegations of equitable tolling if applicable.” 1 The Court informed
Plaintiff that "[e]quitable tolling is appropriate when a movant untimely files because of
extraordinary circumstances that are both beyond [her] control and unavoidable even
with diligence." 2 To establish equitable tolling, a plaintiff must show “(1) [she] has been
pursuing [her] rights diligently and (2) some extraordinary circumstance stood in [her]
way and prevented [her] from timely filing.” 3 “Extraordinary circumstances” may
include fraud, misinformation, deliberate concealment, or that a mental illness deprived
her of the ability to timely file. 4 The Eleventh Circuit has noted equitable tolling is an
extraordinary remedy which should be extended only sparingly. 5
Following the Court’s instruction, Plaintiff filed a recast complaint. In her Recast
Complaint, Plaintiff solely states, “I never intentionally missed a deadline pertaining to
this case. I fully intend on meeting any and all deadlines that I am aware of. The
judgement [sic] that I received from Judge Land did not mention a deadline for refiling.
As a Pro Se litigant, I am doing my absolute best to meet the expectations set forth
according to the rules for court proceedings.” 6
Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).
Winsor v. Home Depot U.S.A., Inc., 743 F. App'x 335, 338 (11th Cir. 2018).
Brown v. John Deere Prod., Inc., 460 F. App'x 908, 910 (11th Cir. 2012).
Case 3:21-cv-00088-CAR Document 6 Filed 09/09/21 Page 3 of 3
Because Plaintiff is proceeding IFP, the Court is required to screen her Complaint
and must sua sponte dismiss the Complaint or portion thereof which (1) is found to be
frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks
monetary relief against a defendant who is immune from such relief. 7
Even construing Plaintiff’s Recast Complaint liberally because of her pro se status,
Plaintiff’s explanation is insufficient to establish equitable tolling, as she has neither
demonstrated that she has been pursuing her rights diligently nor that any extraordinary
circumstances prevented her from timely filing her complaint. Thus, her complaint is
Plaintiff’s Recast Complaint is barred by the statute of limitations and therefore
must be DISMISSED.
SO ORDERED, this 9th day of September, 2021.
s/ C. Ashley Royal_________________
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
28 U.S.C. § 1915(e)(2)(b).
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