LEE v. WAL-MART STORES EAST LP
Filing
11
ORDER granting 3 Motion to Dismiss. Ordered by Judge Clay D. Land on 10/08/2013 (jcs)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ANGIE J. LEE,
*
Plaintiff,
*
vs.
*
WAL-MART STORES, INC.,
*
Defendant.
CASE NO. 4:13-CV-305 (CDL)
*
O R D E R
Plaintiff Angie J. Lee, proceeding pro se, first filed suit
against her former employer, Defendant Wal-Mart Stores, Inc.,1 on
January 24, 2013, alleging gender discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq.
Court
dismissed
the
See Case No. 4:13-CV-25 (CDL).
complaint
without
prejudice
The
because
Plaintiff did not show good cause for her failure to effect
service upon Defendant within 120 days.
Fed. R. Civ. P. 4(m).
As a result, Plaintiff re-filed the action on July 23, 2013.
Defendant moves to dismiss the current complaint as untimely
because it was filed beyond the 90-day statute of limitations
(ECF No. 3).
As explained below, Defendant’s motion is granted.
“Under Title VII, a plaintiff must file her complaint in
the district court within 90 days of her receipt of a right-to1
Both parties acknowledge that the proper defendant should be Wal-Mart
Stores East, L.P.
sue letter from the [Equal Employment Opportunity Commission].”
Miller v. Georgia, 223 F. App’x 842, 844 (11th Cir. 2007) (per
curiam) (citing 42 U.S.C. § 2000e-5(f)(1)).
Plaintiff alleges
that she received her Notice of Right to Sue letter on October
25,
2012
or
October
26,
2012.
Compl.
¶
11,
ECF
No.
1.
Therefore, Plaintiff was required to file this current action by
January 23, or 24, 2013.
It is clear that Plaintiff filed her
July 23, 2013 complaint outside the 90-day limitations period.
While a court may toll a limitations period, “[e]quitable
tolling is an extraordinary remedy which should be extended only
sparingly.”
(11th
Bost v. Fed. Express Corp., 372 F.3d 1233, 1242
Cir.
2004)
(internal
quotation
marks
omitted).
The
general rule in the Eleventh Circuit is that “[d]ismissal of a
complaint, without prejudice, does not allow a later complaint
to be filed outside the statute of limitations.”
dismissal
of
discrimination
claim
re-filed
Id. (affirming
90
days
after
receiving EEOC letter); see also Williams v. Ga. Dep’t of Def.
Nat’l Guard Headquarters, 147 F. App’x 134, 135-36 (11th Cir.
2005)
(per
limitations
curiam)
period
(declining
even
though
to
equitably
toll
previously-filed
90-day
Title
VII
action, which plaintiff voluntarily dismissed, had been timely
filed).
Here, the Court finds that Plaintiff has not established
that
the
circumstances
warrant
2
the
extraordinary
remedy
of
equitable tolling; therefore, Plaintiff’s untimely action must
be dismissed in its entirety.
See Miller, 223 F. App’x at 843-
44 (affirming dismissal of Title VII claim re-filed beyond 90day period despite first filing’s dismissal without prejudice
for failure to perfect service to defendant within 120 days).
CONCLUSION
For
the
reasons
set
forth
above,
the
Court
grants
Defendant’s Motion to Dismiss (ECF No. 3).
IT IS SO ORDERED, this 8th day of October, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
3
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