NOLAN v. THE HOME DEPOT, INC.

Filing 9

MEMORANDUM OPINION & ORDER - Defendant's Motion to Dismiss 5 is granted; Counts One and Three of Plaintiff's Complaint are dismissed with prejudice. Signed by Judge Esther Salas on 9/1/2015. (anr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
THOMAS J. NOLAN,
:
:
Civil Action No. 14-7257 (ES)
Plaintiff,
:
:
MEMORANDUM
v.
:
OPINION & ORDER
:
THE HOME DEPOT INC.,
:
:
Defendant.
:
__________________________________________:
SALAS, DISTRICT JUDGE
I.

INTRODUCTION
Pending before the Court is Defendant The Home Depot Inc.’s (“Home Depot”) Motion to

Dismiss Counts One and Three of Pro-Se Plaintiff Thomas J. Nolan’s Complaint on the grounds
that they are time-barred, pursuant to Federal Rule of Civil Procedure 12(b)(6). (See D.E. No. 5).
The Court decides the motion without oral argument pursuant to Federal Rule of Civil Procedure
78. For the reasons below, the Court grants the motion and dismisses Counts One and Three of
Plaintiff’s Complaint with prejudice.
II.

FACTUAL & PROCEDURAL BACKGROUND
This action arises out of Mr. Nolan’s employment as Department Supervisor at the Home

Depot store located in South Plainfield, New Jersey. (D.E. No. 1 at 9–13, Ex. A to Notice of
Removal, Complaint (“Compl.”) ¶ 1). Mr. Nolan alleges that he was subjected to discrimination
and wrongfully terminated on February 21, 2012 by Home Depot because of his age and race, in
violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. (“NJLAD”).

(Compl. at 2, Counts One and Three). Mr. Nolan additionally alleges that Home Depot store
management violated “policies and procedures” when it failed to provide first aid after “total body
exposure to contaminated septic water,” engaged in “[u]nsafe use of extension cords and electrical
devices,” and failed to “purge the sprinkler system of contaminants.”

(Id., Count Two).

Mr. Nolan initiated this lawsuit by filing his three-count Complaint with the Superior Court
of New Jersey, Law Division, Middlesex County (the “Superior Court”). (See Compl.). The
Complaint was received and filed by the Superior Court clerk on February 24, 2014. (See D.E.
No. 5-2 at 4, Ex. A to the Affidavit of Patrick G. Brady (“Brady Aff.”), Superior Court docket
sheet dated December 15, 2014 (“Superior Court Docket Sheet”)).
By Order dated September 12, 2014, the Superior Court sua sponte dismissed Plaintiff’s
Complaint for failure to prosecute pursuant to Rule 1:13-7 of the Rules Governing the Courts of
New Jersey due to Plaintiff’s lack of service on Home Depot. (See D.E. No. 1 at 15, Ex. B to
Notice of Removal, Superior Court case detail dated September 22, 2014; see also Superior Court
Docket Sheet). However, on October 24, 2014, the Superior Court reinstated Plaintiff’s Complaint
in response to a subsequent motion filed by Mr. Nolan. (See Superior Court Docket Sheet).

On

November 20, 2014, Home Depot removed the matter to this Court on the basis of diversity
jurisdiction. (See D.E. No. 1, Notice of Removal).
On December 15, 2014, Home Depot filed the instant motion to dismiss. (See D.E. No. 51, Memorandum of Law in Support of Defendant Home Depot U.S.A., Inc.’s Rule 12(b)(6) Motion
to Dismiss Counts One and Three of Plaintiff’s Complaint with Prejudice (“Def. Mov. Br.”)).
Home Depot argues that the two-year statute of limitations governing the NJLAD claims set forth
in Counts One and Three expired on February 21, 2014—three days prior to the date Mr. Nolan’s
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Complaint was filed in Superior Court. (See Def. Mov. Br. at 4–5). On January 20, 2015, Mr.
Nolan filed opposition, in which he concedes that his claims under the NJLAD were subject to a
two-year statute of limitations that expired on February 21, 2014 and that his Complaint was not
received and filed by the Clerk of the Superior Court until February 24, 2014. (D.E. No. 6, Answer
to Defendant’s Motion to Dismiss (“Pl. Opp. Br.”) at 1). But Mr. Nolan argues that Counts One
and Three “must be allowed to continue in all fairness of the law” because he placed the Complaint
“in the care and wellbeing of the USPS” on February 20, 2014 for “guaranteed delivery” by noon
on February 21, 2014, and that “[s]omewhere along the line the delivery and receiving process
broke down” which “caused a delayed filing” of February 24, 2014. (Id. at 1, 2). In other words,
Mr. Nolan argues that the delay “was beyond [his] control” and that the failure to file the Complaint
within the two-year statute of limitations should be excused. (Id.). Home Depot replied on January
26, 2015, arguing that the fact that Mr. Nolan placed his Complaint in an overnight mail envelope
the day before the limitations period expired does not, as a matter of law, resuscitate the timebarred claims. (D.E. No. 8, Reply Brief in Further Support of Defendant Home Depot U.S.A.,
Inc.’s Rule 12(b)(6) Motion to Dismiss Counts One and Three of Plaintiff’s Complaint with
Prejudice (“Def. Reply Br.”) at 4–9). The motion is now ripe for adjudication.
III.

STANDARD OF REVIEW
To withstand a motion to dismiss, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
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678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Id.
“When reviewing a motion to dismiss, ‘[a]ll allegations in the complaint must be accepted
as true, and the plaintiff must be given the benefit of every favorable inference to be drawn
therefrom.’” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Kulwicki v. Dawson,
969 F.2d 1454, 1462 (3d Cir. 1992)). But “a court need not credit a plaintiff’s ‘bald assertions’ or
‘legal conclusions’ when deciding a motion to dismiss.” Morse v. Lower Merion School Dist., 132
F.3d 902, 906 (3d Cir. 1997) (citation omitted).
The Third Circuit Court of Appeals has permitted consideration of whether a claim is
barred by the statute of limitations in the context of a motion to dismiss where the viability of such
defense may be discerned from the complaint itself, i.e., where the facts as pled demonstrate the
untimeliness of the claim. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384,
n.1 (3d Cir. 1994).
“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits
attached to the complaint, matters of the public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605
F.3d 223, 230 (3d Cir. 2010); see also Dashner v. Riedy, 197 Fed. App’x. 127, 131–32 (3d Cir.
2006) (acknowledging that a court docket is a public record). “If, on a motion under Rule 12(b)(6)
. . . matters outside the pleadings are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). “All parties must
be given a reasonable opportunity to present all the material that is pertinent to the motion.” Id.
Generally, a court should give notice of its intent to convert a defendant's motion to dismiss into a
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motion for summary judgment so that the plaintiff is not subjected to “summary judgment by
ambush.” In re Bayside Prison Litig., 190 F. Supp. 2d 755, 760 (D.N.J. 2002).
Even though Mr. Nolan included documents outside of the pleadings in opposing the
motion to dismiss, (see Pl. Opp. Br. at 5–11), because Plaintiff concedes that his Complaint was
not received until February 24, 2014, there are no questions of fact to be resolved. The Court
decides the motion without reference to the documents provided by Plaintiff and need not convert
the instant motion into one for summary judgment. Cf. Avila v. Aramark Corp., No. 10-326, 2011
WL 124643, at *1 (D.N.J. Jan. 14, 2011) (converting a factually similar motion to dismiss into one
for summary judgment “[b]ecause [p]laintiff’s defense to the Motion to Dismiss involved
questions of fact”).
IV.

DISCUSSION
Mr. Nolan alleges that he was subjected to discrimination and wrongfully terminated on

February 21, 2012 by Home Depot because of his age and race, in violation of the NJLAD.
(Compl. at 2, Counts One and Three). Claims under the NJLAD are subject to a two-year statute
of limitations, Montells v. Haynes, 133 N.J. 282, 286 (1993), which expired in this case on
February 21, 2014. See Monkelis v. Mobay Chem., 827 F.2d 937, 938 (3d Cir. 1987) (holding that
the statute of limitations expires on the anniversary date of the event).
Under New Jersey law, a claim is properly brought when it is filed with the appropriate
clerk of the court. Poetz v. Mix, 7 N.J. 436, 442 (1951) (“[A] paper or pleading is considered as
filed when delivered to the proper custodian and received by him to be kept on file.”). Specifically,
“[c]ivil actions in the Law Division, are commenced by filing the original complaint with the
deputy clerk of the Superior Court in the county of venue. R. 1:5–6(b)(1).” MacDonald v. Giovine,
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Civ. No. A–4696–04T2, 2006 WL 1549763, at *2 (N.J. Super. Ct. App. Div. June 8, 2006).
Significantly, “unlike service, which is complete upon mailing, filing can only be effected by the
receipt of the filed paper by the designated office.” Id. (citation omitted).
Here, Mr. Nolan concedes that the Complaint was not received and filed by the Clerk of
the Superior Court until February 24, 2014—three days after the statute of limitations for Counts
One and Three of Plaintiff’s Complaint expired on February 21, 2014. (Pl. Opp. Br. at 1). As
noted above, Plaintiff contends that the missed deadline should be excused because he placed the
Complaint “in the care and wellbeing of the USPS” on February 20, 2014 for “guaranteed delivery”
by noon on February 21, 2014, but that “[s]omewhere along the line the delivery and receiving
process broke down” which “caused a delayed filing” of February 24, 2014. (Id. at 1, 2). Home
Depot argues that Counts One and Three are therefore time-barred as a matter of law. (Def. Reply
Br. at 4–9).
“[T]he general rule is that the mere mailing of the complaint before the expiration of the
limitations period fails to satisfy the requirement that the complaint be timely filed.” Hunt v.
Chase, No. 09-531, 2010 WL 235118, at *4 (W.D. Pa. Jan. 15, 2010). New Jersey law permits
relief from the statute of limitations based on “substantial compliance,”1 but “both New Jersey and
federal courts have explained that the test is a stringent one, to be applied sparingly in only the
most extreme or inequitable circumstances.” Wimbush v. Jenkins, No. 13-4654, 2014 WL
1607354, at *6 (D.N.J. Apr. 22, 2014) (listing cases).

1

See Negron v. Llarena, 156 N.J. 296, 305 (1998) (setting forth several factors a court should consider when
determining whether a claim is time-barred: (i) lack of prejudice to the defendant(s); (ii) a series of steps taken by the
plaintiff to comply with the statute of limitations; (iii) the plaintiff’s general compliance with the purpose of the statute;
(iv) reasonable notice of the plaintiff’s claim; and (v) a reasonable explanation of why there was not strict compliance
with the statute).

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To be sure, the court in Wimbush reviewed facts substantially similar to those before this
Court and found that substantial compliance did not save a plaintiff’s complaint that was filed one
day past the statute of limitations:
In choosing to place the Complaint in the mail for filing only three days before the
expiration of the statute of limitations, [p]laintiff’s counsel failed to exercise the
level of diligence that is required to demonstrate substantial compliance under New
Jersey law. . . . [I]n order to substantially comply with the statute of limitations,
Plaintiff’s counsel should have attempted to file the Complaint in person or, at a
minimum, arrange for an overnight courier.
Id. at *7 (internal citations omitted); see also Hunt v. Chase, No. 09-531, 2010 WL 235118, at *4
(W.D. Pa. Jan. 15, 2010) (“[E]ven though [plaintiff’s complaint] was supposed to arrive by noon
on April 30, 2009 [the date the statute of limitations ran,] Plaintiff bore the risk that it would not
arrive at the scheduled time; the court notes that plaintiff did not argue that he was prevented from
filing his complaint at an earlier time.”).
For the same reasons, substantial compliance does not save Counts One and Three of Mr.
Nolan’s Complaint from the two-year statute of limitations. Mr. Nolan does not suggest that he
was prevented from filing his complaint at an earlier time, and so he himself bore the risk that his
Complaint would not arrive as scheduled when he mailed it from Buffalo, New York to New
Brunswick, New Jersey, the day before the statute of limitations expired. Even if Plaintiff
reasonably assumed that his Complaint would be delivered on time as suggested by the United
States Postal Service, “had Plaintiff contacted the court to confirm receipt, he would have
discovered that the court could not, in fact, confirm the delivery of the Complaint and Plaintiff
would have had time to hand-deliver or otherwise ensure the timely filing of his own pleading.”
Avila v. Aramark Corp., No. 10-0326, 2011 WL 124643, at *4 (D.N.J. Jan. 14, 2011). Finally,

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although the Court must liberally construe the filings of a pro-se plaintiff,2 the United States
Supreme Court has “never suggested that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without legal counsel.” McNeil v.
United States, 508 U.S. 106, 113 (1993).
The Court has reviewed the submissions of the parties in conjunction with this motion, and
for the reasons stated above,
IT IS on this 1st day of September 2015,
ORDERED that Defendant’s Motion to Dismiss, (D.E. No. 5), is granted; and it is further
ORDERED that Counts One and Three of Plaintiff’s Complaint are dismissed with
prejudice.
s/ Esther Salas
Esther Salas, U.S.D.J.

2

See Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).

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