Johnson v. Five Star Transportation LLC
Filing
8
OPINION AND ORDER, DENYING 4 MOTION to Dismiss filed by Five Star Transportation LLC. Signed by Judge Rudy Lozano on 11/9/11. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DANA JOHNSON,
)
)
Plaintiff,
)
)
v.
)
)
FIVE STAR TRANSPORTATION, LLC,)
)
Defendant.
)
NO. 3:11-CV-138
OPINION AND ORDER
This matter is before the Court on the Verified Motion to Dismiss,
filed by Defendant, Five Star Transportation, LLC (“Five Star”), on April
14, 2011.
For the reasons set forth below, the motion is DENIED.
BACKGROUND
Dana Johnson (“Johnson”) filed a complaint against Five Star on
April 1, 2011.
Five Star filed the instant motion in lieu of an answer.
Five Star’s motion, which is little more than one page in length, alleges
that this case must be dismissed because Johnson failed to file his
complaint within 90 days of the date he received his Dismissal and Notice
of Rights from the Equal Employment Opportunity Commission “EEOC.”
Plaintiff filed a response on May 12, 2011, and the motion is ripe for
adjudication.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be
dismissed if it fails to “state a claim upon which relief can be
granted.”
Allegations other than fraud and mistake are governed by the
pleading standard outlined in Federal Rule of Civil Procedure 8(a), which
requires a “short and plain statement” showing that the pleader is
entitled to relief.
In order to survive a Rule 12(b)(6) motion, the complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face’.”
Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
reasonable
All well-pleaded facts must be accepted as true, and all
inferences
plaintiff’s favor.
2008).
from
those
facts
must
be
resolved
in
the
Pugh v. Tribune Co., 521 F.3d 686, 692 (7th Cir.
However, a plaintiff may plead himself out of court if the
complaint includes allegations that show he cannot possibly be entitled
to the relief sought.
McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir.
2006).
Johnson, an African American, alleges he was terminated from
his employment as a truck driver with Five Star on August 19, 2010,
and
that
his
termination
was
based
on
his
race.
Johnson’s
complaint further alleges that he filed a timely complaint with the
EEOC, and that the EEOC “issued a Right-To-Sue letter, dated December
29, 2010.”
The complaint does not indicate the date that Johnson
received the Dismissal and Notice of Rights (“Notice”), which he refers
to as his “Right-To-Sue” letter.
His complaint was filed on April 1,
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2011, 93 days after the date the EEOC mailed the Notice.
Five Star asserts in the instant verified motion that it received
the Notice from the EEOC on December 30, 2010.
Accordingly, Five Star
asserts that the complaint needed to be filed by March 30, 2011, and that
the lawsuit was filed two days late.
Five Star does not provide this
Court with any legal support for its argument, other than the language
in the Notice: “Your lawsuit must be filed WITHIN 90 DAYS of your receipt
of this notice; or your right to sue based on this charge will be lost.”
(Notice, DE 4-1).
The Notice also provides claimants with information
related to filing suit, as follows:
In order to pursue this matter further, you must
file a lawsuit against the respondent(s) named in
the charge within 90 days of the date you receive
this Notice. Therefore, you should keep a record
of this date. Once this 90-day period is over,
your right to sue based on the charge referred to
in this Notice will be lost.
If you intend to
consult an attorney, you should do so promptly.
Give your attorney a copy of this Notice, and its
envelope, and tell him or her the date you received
it. Furthermore, in order to avoid any question
that you did not act in a timely manner, it is
prudent that your suit be filed within 90 days of
the date this Notice was mailed to you (as
indicated where the Notice is signed) or the date
of the postmark, if later.
(Notice, DE 4-1).
Johnson failed to heed the advise that the complaint be filed within
90 days of when the Notice was mailed.
Nonetheless, on a motion to
dismiss under Rule 12(b)(6), the burden of proving that the lawsuit is
untimely rests with Five Star, and all reasonable inferences must be
resolved in Johnson’s favor.
The 90 days time limit to bring suit under
Title VII is strictly enforced.
See McCauley v. Akal Sec., Inc., No. 10
C 2839, 2011 WL 2461340 (June 17, 2011, N.D. Ill).
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However, a plaintiff
is “not required to rebut the affirmative defense of the expiration of
the 90-day period in her complaint.”
Id.
Accordingly, the issue of the
timeliness of the complaint can not usually be addressed through a Rule
12(b)(6) motion.
Id.; see also Mosely v Board of Education, 434 F.3d
527, 535 (7th Cir. 2006)(holding that the plaintiff’s retaliation claim
under the IDEA was not “so obviously time-barred that it may be dismissed
under Rule 12(b)(6)); Tregenza v. Great American Communications Co., 12
F.3d
717,
718
(7th
Cir.
1993)(“The
statute
of
limitations
is
an
affirmative defense, and a plaintiff is not required to negate an
affirmative defense in his complaint.”); Ebbert v. Daimler Chrysler
Corp., 319 F.3d 103, 108 (3d Cir. 2003)(“If the employer in an ADA case
asserts an affirmative defense, like the expiration of the statute of
limitations ... then the burden of proof for that defense rests solely
on the employer.”).
Five Star has not and can not at this stage demonstrate that
Johnson’s complaint is untimely.
Rather, Five Star asks this Court to
speculate that because it received the Notice on December 30, 2010,
Johnson must have also received the Notice on the same day.
justifies such speculation.
Nothing
Indeed, speculation would be inappropriate.
This Court has no evidence before it regarding when Johnson received the
Notice, and at this stage, Johnson has no obligation to volunteer such
information.
Accordingly, the Verified Motion to Dismiss must fail.
CONCLUSION
For the reasons set forth above, Five Star’s Verified Motion to
Dismiss is DENIED.
DATED: November 09, 2011
/s/RUDY LOZANO, Judge
United States District Court
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