Mullins v. Arcelor Mittal

Filing 11

OPINION AND ORDER granting 8 Motion to Dismiss for Failure to State a Claim. Mr. Mullins is granted to and including February 28, 2012 in which to amend his pleadings if he elects to do so. Mr. Mullinss recent letter is construed as a renewed request for an appointment of counsel and is DENIED. Signed by Judge Robert L Miller, Jr on 2/7/12. cc: E. Mullins (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
EDDIE J. MULLINS,
Plaintiff
v.
ARCELORMITTAL INDIANA
HARBOR LLC,
Defendant

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Cause No. 2:11-CV-256-RLM-PRC

OPINION AND ORDER
This matter is before the court on defendant ArcelorMittal Indiana Harbor
LLC’s motion to dismiss for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6) (Doc. No. 8). Plaintiff Eddie J. Mullins has not opposed the
motion and the time for doing so has expired (although an opposition is not
necessary; the plaintiff may stand on his complaint. See J. Moore, MOORE’S
FEDERAL PRACTICE § 12.34[1][a]). Mr. Mullins has filed a letter (Doc. No. 10) in
which he informs the court that he previously was involved in a proceeding
disputing child support and asks again for the appointment of an attorney in this
case.

I. ARCELORMITTAL’S MOTION TO DISMISS
Rule 12(b)(6) allows a court to dismiss a case if the complaint doesn’t state
a claim upon which relief could be granted, and ArcelorMittal proposes two
theories under which its motion should be granted: an affirmative statute of

limitations defense and an assertion that Mr. Mullins does not state a cognizable
claim.

A.
ArcelorMittal says the statute of limitations expired before Mr. Mullins filed
his complaint. Mr. Mullins first took his employment discrimination complaint to
the Equal Employment Opportunity Commission (EEOC), but the EEOC declined
to pursue the matter. A plaintiff has 90 days to file a civil action after receiving a
right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1). The time begins to
run with actual receipt by the claimant (or constructive receipt if his agent, for
instance an attorney, receives the letter). Threadgill v. Moore U.S.A., Inc., 269 F.3d
848, 850 (7th Cir. 2001).
On the face of his employment discrimination complaint, Mr. Mullins wrote
in a date to complete a sentence indicating that he received the right-to-sue notice
“on or about April 15, 2011.” He filed his complaint on July 15, 2011, which is 91
days after that date.
Mr. Mullins attached the right-to-sue letter to his complaint and that letter
indicates that it was mailed by the EEOC on the same date that Mr. Mullins says
he received it. Letters ordinarily aren’t mailed and received on the same day, but
rather than speculate as to the letter’s actual date of receipt, the court must
accept Mr. Mullins’s date as a judicial admission. “Judicial admissions are formal
concessions in the pleadings, or stipulations by a party or its counsel, that are
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binding upon the party making them.” Keller v. United States, 58 F.3d 1194, 1199
n.8 (7th Cir. 1995). “A judicial admission is conclusive, unless the court allows it
to be withdrawn.” Id.
For purpose of evaluating ArcelorMittal’s motion to dismiss, then, Mr.
Mullins received the right-to-sue letter on April 15 and he did not file a civil
complaint within 90 days. His complaint is time-barred. The complaint is
dismissed on this ground, but the court affords Mr. Mullins three weeks from the
entry of this order to amend his pleadings if he so chooses.

B.
ArcelorMittal alternatively asserts that the complaint should be dismissed
because Mr. Mullins hasn’t alleged a set of facts upon which relief could be
granted. Mr. Mullins’s pro se complaint is a 35 page entry that begins on the preprinted “Employment Discrimination Complaint” form and attaches the EEOC
charge, communication from the EEOC, the right-to-sue letter, and extensive,
rambling, hand-written narratives of the workplace disputes that Mr. Mullins feels
are in violation of Title VII, the Age Discrimination in Employment Act, and the
Americans with Disabilities Act.
Because the court has granted ArcelorMittal’s motion to dismiss on its first
theory, supra, the court need not reach a conclusion on this second theory.
Nonetheless, for any future filings, the court directs Mr. Mullins’s attention to
Federal Rule of Civil Procedure 8(a), which instructs that pleadings must contain
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“a short and plain statement of the claim showing that the pleader is entitled to
relief” and Federal Rule of Civil Procedure 10(b) which instructs that pleadings
must contain numbered paragraphs, each one limited to a single set of
circumstances.

II. MR. MULLINS’S LETTER
The court received a letter from Mr. Mullins that alerts the court of
seemingly unrelated litigation regarding child support and custody issues. In this
letter, he reasserts his request for an appointment of counsel to aid him in this
case. Magistrate Judge Paul R. Cherry denied Mr. Mullins’s previous request for
appointment of counsel. Doc. No. 7. In that entry, Judge Cherry noted, among
other things, that “the Court does not have enough information to determine
whether [Mr. Mullins] has made a reasonable attempt to retain counsel, and
Plaintiff does not allege he is unable to afford counsel.” Further, Judge Cherry
noted that Mr. Mullins appears to be able to grasp the facts at issue and appears
to be able to competently assert his claims in writing. Mr. Mullins’s most recent
letter to the court does not address those grounds for denial of an appointment
of counsel and it does not provide the court with any other grounds that would
otherwise alter the court’s analysis. Therefore, to the extent that this latest letter
can be construed as a renewed motion for the appointment of counsel, that
request must be denied.

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III. CONCLUSION
ArcelorMittal’s motion to dismiss pursuant to Rule 12(b)(6) is GRANTED
based on the movant’s assertion of a statute of limitations affirmative defense. The
court need not consider ArcelorMittal’s second ground for its motion to dismiss.
Mr. Mullins is granted to and including February 28, 2012 in which to amend his
pleadings if he elects to do so.
Mr. Mullins’s recent letter is construed as a renewed request for an
appointment of counsel and is DENIED because it does not address the reasons
an appointment of counsel was previously properly denied.
SO ORDERED.
ENTERED: February 7, 2012

/s/ Robert L. Miller, Jr.
Judge
United States District Court
cc:

E. Mullins
L. Evans

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