CARROLL v. DELAWARE RIVER PORT AUTHORITY

Filing 21

OPINION. Signed by Judge Joseph E. Irenas on 1/10/2014. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANTHONY J. CARROLL,
HONORABLE JOSEPH E. IRENAS
CIV. ACTION NO. 13-2833
(JEI/AMD)

Plaintiff,
v.

OPINION

DELAWARE RIVER PORT
AUTHORITY,
Defendant.

APPEARANCES:
MATTHEW S. WOLF, ESQUIRE, LLC
By: Mathew S. Wolf, Esq.
1236 Brace Road
B. 2nd Floor
Cherry Hill, New Jersey 08034
Counsel for Plaintiff

DEASEY, MAHONEY, VALENTINI, & NORTH LTD
By: Carla P. Maresca, Esq.
80 Tanner Street
Haddonfield, New Jersey 08033
Counsel for Defendant

IRENAS, Senior United States District Judge:
This is an employment discrimination suit pursuant to the
Uniformed Services and Reemployment Rights Act, “USERRA,” 38
U.S.C. § 4311(a).

In the Amended Complaint, Plaintiff Anthony

Carroll asserts that his employer, Defendant Delaware River Port
Authority (“DRPA”), denied him an opportunity to apply for a
promotion in 2003, and passed him over for promotions in 2010 and
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2012, on account of his military service.

DRPA moves to dismiss

as time-barred the claim based on the 2003 incident.

The Court

concludes that the applicable four-year statute of limitations
bars the 2003 claim.

Accordingly, DRPA’s Motion to Dismiss will

be granted.

I.
With respect to the claim at issue, the Amended Complaint
alleges the following.
Carroll has been employed by the DRPA as a police officer
since 1989.

During all relevant times, Carroll was also a member

of the Pennsylvania Army National Guard.
In “early 2003,” while Carroll was on active military duty,
DRPA administered a written examination which “was a necessary
prerequisite to becoming qualified for” a sergeant position which
had recently become available.

(Amend. Compl. ¶ 18)

DRPA would

not allow Carroll to take the exam at the military education
center where Carroll was stationed.

Someone at DRPA allegedly

told Carroll “‘you cannot sit for the exam because you are in the
military on active duty,’ or words to that effect.”

(Id. ¶ 19)

Carroll asserts that he was otherwise qualified for the sergeant
position, and that he would have been promoted “but for [the]
denial of his taking the sergeant’s examination.”

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(Id. ¶ 27)

As stated previously, DRPA moves to dismiss this claim,
arguing that it is time-barred.

II.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party
may move to dismiss for “failure to state a claim upon which
relief can be granted.”

If a claim is barred by the applicable

statute of limitations, the Court cannot grant relief, and
dismissal is appropriate.

See, e.g., Pension Trust Fund for

Operating Eng'rs v. Mortgage Asset Securitization Transactions,
Inc., 730 F.3d 263 (3d Cir. 2013).

III.
Before reaching the core statute of limitations analysis, the
Court addresses two other arguments Carroll advances in opposition
to the Motion.

A.
Carroll argues that DRPA has waived the statute of
limitations defense because it did not raise it in the Motion to
Dismiss the original complaint, which the Court granted but gave
Carroll leave to amend.

This argument fails.

Assuming arguendo that, as Carroll asserts, DRPA has run
afoul of Fed. R. Civ. P. 12(g)(2)’s general prohibition on
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successive Rule 12 motions 1, DRPA could still raise the statute of
limitations defense in a Rule 12(c) motion.

See Fed. R. Civ. P.

12(h)(2)(B).
Moreover, the Court raised this statute of limitations issue
in its opinion granting DRPA’s original motion to dismiss.

The

Court explicitly stated that “[i]f Carroll includes the 2003 claim
in his Amended Complaint, DRPA may raise the issue in an
appropriate pleading or motion.”
Even if a motion pursuant to 12(b)(6) is not the
“appropriate” motion, a motion pursuant to 12(c) would be; and
this Court may, in its discretion treat it as such.

In the end,

the entire discussion is academic, because the same legal standard
applies under both 12(b)(6) and 12(c).

See Revell v. Port Auth.,

598 F.3d 128, 134 (3d Cir. 2010) (“A motion for judgment on the
pleadings based on the defense that the plaintiff has failed to
state a claim is analyzed under the same standards that apply to a
Rule 12(b)(6) motion.”).
Carroll’s waiver argument fails.
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Rule 12(g)(2) prohibits “another motion . . . that was available to the party
but omitted from its earlier response,” (emphasis added). As explained in the
Court’s previous opinion granting DRPA’s motion to dismiss, the factual pleading
of the original complaint was very sparse and somewhat unclear. Specifically
with respect to the 2003 claim, the Court held, “the 2003 claim fails because
Carroll does not allege sufficient facts to put DRPA on notice as to the nature
of his claim.” Carroll v. DRPA, 2013 WL 3465208 at *2 (D.N.J. July, 9, 2013).
(Indeed, the entire complaint contained only one sentence concerning what
happened in 2003.) Since DRPA could not reasonably know what the claim was in
the first place, it would seem logically inconsistent to now hold that DRPA
should have known of a defense to that same claim. However, the Court need not
decide the issue because it would not change the disposition of the instant
Motion.

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B.
Carroll also attempts to avoid dismissal by asserting that
the 2003 incident is actionable under a continuing violation
theory.
No reasonable factfinder could plausibly conclude that DRPA’s
actions in 2003 were sufficiently connected to the failures to
promote in 2010 and 2012 to constitute a continuing violation.
Approximately seven years passed between the 2003 incident and the
next incident in 2010, and the 2003 incident is different than the
incidents in 2010 and 2012.

In 2003, DRPA allegedly would not

allow Carroll to sit for the Sergeant’s examination, thereby
preventing Carroll from applying for a promotion.

In 2010 and

2012, Carroll was not prevented from applying, he was simply
passed over for the position.
Moreover, all three alleged adverse employment actions are
inherently discrete incidents.

The Supreme Court has expressly

stated that “termination, failure to promote, denial of transfer,
or refusal to hire” are easily identifiable as “discrete acts” not
actionable under a continuing violation theory.

AMTRAK v. Morgan,

536 U.S. 101, 114 (2002) (holding, in a Title VII case, that the
continuing violation theory cannot apply to “serial violations”
even if those violations are related).
Lastly, the Amended Complaint’s final factual allegation that
“[t]he discriminatory animus by the defendant against Plaintiff
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has been continuous and unabated from 2003 to the present,”
(Amend. Compl. ¶ 42), does not save the 2003 claim.

The relevant

inquiry focuses on a defendant’s adverse employment actions, not
its discriminatory animus.

See Morgan, 536 U.S. at 112-13.

Carroll’s continuing violation theory fails.

C.
Lastly, the Court raised the statute of limitations issue in
its previous opinion:
In 2008, Congress amended USERRA to make clear that
suits under the statute may be brought at any time.
See 38 U.S.C. § 4327(b) (“If any person seeks to file
a complaint ... with ... a Federal or State court
under this chapter alleging a violation of this
chapter, there shall be no limit on the period for
filing the complaint or claim.”).
However, many
courts have held that § 4327(b) does not retroactively
apply to claims that accrued prior to § 4327(b)’s
enactment on October 10, 2008, and that claims such as
Carroll’s are subject to a four-year statute of
limitations.
Carroll v. DRPA, 2013 WL 3465208 at *3 n.4.

However, the Court

declined to rule on the issue at that time because the parties had
not briefed it.

Now they have, and the Court concludes that the

2003 claim is untimely.
While Carroll is correct that there is no controlling
precedent in this Circuit for the Court to follow, after repeated
and extensive research, all of the persuasive authority on the
issue-- including decisions from three Courts of Appeals-- appears
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to be unanimous.

Every court to have addressed the issue has held

that § 4327(b) does not apply retroactively.

See, e.g., Baldwin

v. City of Greensboro, 714 F.3d 828 (4th Cir. 2013); Dean v. City
of New Orleans, 2013 U.S.App. LEXIS 9106 (5th Cir. May 3, 2013);
Middleton v. City of Chicago, 578 F.3d 655 (7th Cir. 2009);
Charcalla v. General Electric Trans. Sys., 2012 WL 1436563 (W.D.
Pa. 2012); Tully v. County of Nassau, 2012 WL 487007 (E.D.N.Y.
2012); Moore v. United Airlines, Inc., 2011 WL 2144629 (D. Colo.
2011); Risner v. Haines, 2009 WL 4280734 (N.D. Ohio 2009); Roark
v. Lee Co., 2009 WL 4041691 (M.D. Tenn. 2009); Hogan v. United
Parcel Service, 648 F.Supp.2d 1128 (W.D. Mo. 2009).
The Court finds those courts’ analyses legally sound and also
holds that § 4327(b) does not apply retroactively for the reasons
set forth in those opinions.
Accordingly, Carroll’s claim is barred by the applicable four
year statute of limitations.

IV.
For the reasons set forth above, DRPA’s Motion to Dismiss the
2003 claim will be granted.

Dated:

January 10, 2014

s/ Joseph E. Irenas

_____

Joseph E. Irenas, S.U.S.D.J.

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