Torres v. Cieli Partners L.P. et al
OPINION AND ORDER re: 18 MOTION to Dismiss the First, Second and Ninth Claims for Relief filed by The Fireman Group Cafe Concepts, Inc., Cieli Partners L.P. For the reasons set forth above, Defendants' motion for parti al summary judgment is GRANTED, and Plaintiff's First, Second, and Ninth Claims for Relief are DISMISSED. The Clerk of Court is directed to terminate the motion appearing at Docket Entry Number 18. The parties are ORDERED to file a Proposed Civil Case Management Plan and Scheduling Order by July 10, 2017. (As further set forth in this Opinion and Order.) (Signed by Judge Katherine Polk Failla on 6/26/2017) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CIELE PARTNERS L.P. d/b/a TRATTORIA :
DELL’ARTE and THE FIREMAN GROUP
CAFÉ CONCEPTS, INC. d/b/a THE
FIREMAN HOSPITALITY GROUP,
DOC #: _________________
DATE FILED: June 26, 2017
16 Civ. 8477 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
At the heart of this Opinion is a simple question: When did Plaintiff
Aurelio Torres file his Complaint? 1 This Court’s records supply one
answer — November 1, 2016. But Plaintiff insists that he filed the Complaint
one day sooner, on October 31, 2016.
The Complaint’s filing date is a dispositive issue in this case. In his
Complaint’s First and Second Claims for Relief, Plaintiff alleges that
Defendants Ciele Partners L.P. and The Fireman Group Café Concepts, Inc.
(together, “Defendants”) violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17 (“Title VII”). And in his Ninth Claim for Relief,
Plaintiff alleges that Defendants violated the Age Discrimination in Employment
Act of 1967, 29 U.S.C. §§ 621-634 (the “ADEA”). Plaintiff first sought redress
Throughout this Opinion, the Court will use the term “Plaintiff” to refer to the actions of
both Plaintiff Aurelio Torres and his counsel, Victor H. Saldarriaga.
for these alleged wrongs by filing a charge of discrimination and retaliation with
the Equal Employment Opportunity Commission (the “EEOC”). On July 28,
2016, the EEOC mailed to Plaintiff a letter stating that it would not be
pursuing his case and notifying Plaintiff of his right to sue Defendants (the
“Right to Sue Letter”). Plaintiff received the Right to Sue Letter on August 1,
2016. The parties agree that Plaintiff needed to file his Complaint within 90
days of receiving the Right to Sue Letter — i.e., on or before October 31,
2016 — in order for his Title VII and ADEA claims to be timely. 2
Defendants moved to dismiss Plaintiff’s First, Second, and Ninth Claims
for Relief, arguing that all three claims are time-barred because Plaintiff filed
his Complaint on November 1. Because Defendants and Plaintiff submitted
documentary evidence in support of their motion to dismiss and opposition,
respectively, the Court converted Defendants’ motion to dismiss into a Rule 56
motion for summary judgment. And because the undisputed facts of this case
establish that Plaintiff filed his Complaint on November 1, not October 31, the
Court grants Defendants’ motion and dismisses Plaintiff’s First, Second, and
Ninth Claims for Relief.
The end of Plaintiff’s 90-day filing period fell on October 30, 2016, a Sunday.
Accordingly, under Federal Rule of Civil Procedure 6(a)(1)(C), Plaintiff’s time to file his
Complaint was extended “until the end of the next day that [was] not a Saturday,
Sunday, or legal holiday” — here, Monday, October 31, 2016. Fed. R. Civ. P. 6(a)(1)(C).
Defendants operate Trattoria Dell’Arte, a restaurant in New York City.
(Compl. ¶¶ 9-10). Plaintiff began working at the restaurant in 1988, and
continued working there as a cook and sous-chef until September 11, 2014,
when he was terminated. (Id. at ¶¶ 12-15, 29-31). In July 2015, Plaintiff filed
with the EEOC a charge claiming that he suffered discrimination and
retaliation during his time at Trattoria Dell’Arte. (Id. at ¶ 5).
On July 28, 2016, the EEOC mailed the Right to Sue Letter to Plaintiff.
(Right to Sue Letter 1). Enclosed with the letter was a “Dismissal and Notice of
Rights” form, which, in a section titled “Notice of Suit Rights,” stated that if
Plaintiff wished to sue Defendants under Title VII or the ADEA, his “lawsuit
must be filed WITHIN 90 DAYS of [his] receipt of th[e] notice.” (Id. at 2; see also
id. at 3 (same)). Plaintiff received the Right to Sue Letter on August 1, 2016.
(Pl. Letter Pre-Motion Letter Response 3; Pl. Opp. 1).
This Opinion draws on facts from several sources: Plaintiff’s Complaint (“Compl.” (Dkt.
#1)); a December 23, 2016 letter in which Defendants announced their intention to
move to dismiss the Complaint (“Def. Pre-Motion Letter” (Dkt. #10)); Plaintiff’s response
to that letter (“Pl. Pre-Motion Letter Response” (Dkt. #11)); the transcript of a conference
this Court held to address the arguments set forth in the letters (“1/12/17 Tr.” (Dkt.
#19-2)); this case’s docket (“Docket” (Dkt. #21-2)); an e-mail Plaintiff received on
October 31, 2016, confirming that he paid a filing fee to open this case (“10/31/16
Payment E-Mail” (Dkt. #21-2)); an automated Notice of Electronic Filing that Plaintiff
received by e-mail on November 1, 2016 (“11/1/16 Notice of Electronic Filing” (Dkt.
#21-3)); and a Right to Sue letter that the EEOC mailed to Plaintiff on July 28, 2016
(“Right to Sue Letter” (Dkt. #27-1)).
For ease of reference, the Court refers to Defendants’ brief in support of their instant
motion as “Def. Br.” (Dkt. #20), and to Plaintiff’s opposition brief as “Pl. Opp.” (Dkt.
The parties agree that Plaintiff needed to file his Complaint on or before
October 31, 2016, in order for his Title VII and ADEA claims to be timely.
(1/12/17 Tr. 2; Pl. Opp. 7). Plaintiff contends that he met this deadline. (See,
e.g., Pl. Pre-Motion Letter Response 3 (“Plaintiff filed a lawsuit with this Court
by and through its ECF system on October 31, 2016.”); Pl. Opp. 7 (“[T]his
action was filed on October 31, 2016.”); id. at 9 (“[T]he Complaint was timely
filed (i.e., ‘delivered’) to the Clerk on October 31, 2016[.]”)).
But Plaintiff also concedes that his Complaint “was not uploaded into the
CM/ECF system on October 31, 2016.” (Pl. Pre-Motion Letter Response 3
(emphasis added); accord Pl. Opp. 7). And the parties have introduced several
documents that corroborate Plaintiff’s concession.
On October 31, 2016, at 4:53 p.m., Plaintiff received an automated email from “Pay.gov” confirming that he had paid the $400.00 filing fee
necessary to initiate a civil action in this District. (10/31/16 Payment E-Mail;
see also 1/12/17 Tr. 4 (Plaintiff recalling that he attempted to upload
Complaint “at 4:50-something”)). But at 10:33 a.m. the following
day — November 1, 2016 — Plaintiff received via e-mail an automated Notice of
Electronic Filing (the “November 1 Notice of Electronic Filing”) “generated by”
this Court’s “CM/ECF system.” (11/1/16 Notice of Electronic Filing). It stated,
in relevant part:
NOTICE TO ATTORNEY TO FILE INITIAL PLEADING.
Notice to Attorney Victor Hugo Saldarriaga to
electronically file the initial pleading in this case.
Failure to file the initial pleading may result in the
dismissal of the case pursuant to Standing Order 15mc-00131. Initial Pleading due by 11/7/2016.
(Id.). The first entry on this case’s docket contains an identical message; this
entry is also dated November 1, 2016. (Docket 2). A slightly different message,
however, appears at the top of this case’s docket: “Date Filed: 10/31/2016.”
(Id. at 1; see also 1/12/17 Tr. 5-6 (discussing “Date Filed” message at top of
After consulting with the Court’s ECF Help Desk, Plaintiff was able to
upload his Complaint to the Court’s CM/ECF system on November 1, 2016.
(Docket 2; Pl. Opp. 5).
On December 23, 2016, Defendants filed a letter announcing their
intention to move to dismiss Plaintiff’s First, Second, and Ninth Claims for
Relief. (Def. Pre-Motion Letter 1). Plaintiff responded to that letter on
January 3, 2017 — several days after his letter was due under Rule 2.H of this
Court’s Individual Rules of Practice in Civil Cases. (See Dkt. #11). In that
letter response, Plaintiff offered a timeline of the Complaint’s filing that largely
accords with the timeline the Court set forth supra. He wrote: “Plaintiff filed a
lawsuit with this Court by and through its ECF system on October 31, 2016.”
(Id. at 3). Plaintiff added that the case’s docket and the payment confirmation
e-mail he received “clearly demonstrate that this action was filed on
October 31, 2016.” (Id.). But Plaintiff also wrote that his Complaint “was not
uploaded into the ECF system on October 31, 2016,” a problem Plaintiff
remedied on November 1, 2016, when he “successfully upload[ed]” the
The Court held a pre-motion conference to discuss the parties’ letters on
January 12, 2017. (1/12/17 Tr. 1). During the conference, Plaintiff explained
that when he spoke with the Court’s ECF Help Desk on November 1, he learned
that the internet browser he used when he first attempted to upload the
Complaint — Microsoft Edge — is not compatible with this Court’s ECF system.
(Id. at 4). Only after Plaintiff switched to a different internet browser, Internet
Explorer, was he able to upload the Complaint. (Id.). And although Plaintiff
received the payment confirmation e-mail on October 31, and “an e[-]mail from
the clerk” on November 1 stating that the Complaint was “not in the system,”
he did not recall receiving an e-mail on October 31 confirming “that [his]
[C]omplaint had been received for filing.” (Id. at 4-5).
On February 17, 2017, Defendants moved to dismiss the Complaint
under Rule 12(b)(6). (Dkt. #18-20). Plaintiff opposed the motion on March 22,
2017 (Dkt. #21-22), and briefing concluded when Defendants submitted their
reply brief on April 5, 2017 (Dkt. #23).
Defendants and Plaintiff filed declarations in support of their motion to
dismiss and opposition, respectively. (Dkt. #19, 21). Both declarations
attached several documents as exhibits. (See Dkt. #19-1 to 19-4, Dkt. #21-1 to
21-3). Accordingly, on June 1, 2017, the Court issued an Order (the “June 1,
2017 Order”) indicating that it planned to convert Defendants’ motion to
dismiss into a Rule 56 motion for summary judgment. 4 (Dkt. #26). The
June 1, 2017 Order directed the parties to (i) show cause, in writing, why the
Court could not consider the materials attached to the declarations “in
adjudicating Defendants’ motion for partial summary judgment”; and
(ii) “submit … any additional materials they wish[ed] the Court to consider in”
deciding the motion. (Id. at 2).
Defendants responded to the June 1, 2017 Order on June 7, 2017. (Dkt.
#27). They raised no objection “to the admissibility or authenticity of any of
the documents submitted either in support [of] or opposition to” their motion.
(Id.). Defendants attached to their response a copy of the Right to Sue Letter
Plaintiff received from the EEOC. (Right to Sue Letter).
Plaintiff did not respond to the June 1, 2017 Order.
The documents attached as exhibits to both declarations are arguably subject to
judicial notice, and therefore subject to consideration on a motion to dismiss. See, e.g.,
Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (limiting universe of documents
courts may consider in adjudicating motions to dismiss to include, inter alia, “matters
of which judicial notice may be taken” (internal quotation mark omitted) (quoting
Concord Assocs., L.P. v. Entm’t Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016))). But a
court cannot take judicial notice of “the truth of the matters asserted” in a document
appropriate for judicial notice. Beauvoir v. Israel, 794 F.3d 244, 248 n.4 (2d Cir. 2015)
(internal quotation mark omitted) (quoting Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.
2007)). Here, that restriction would have impeded the Court’s ability to resolve the
timeliness argument Defendants raised in their motion to dismiss. For example, the
Court is confident that it could have taken judicial notice of the November 1 Notice of
Electronic Filing without converting Defendants’ motion to dismiss into a motion for
summary judgment. But the Court could not have accepted the truth of the statement
asserted in the November 1 Notice of Electronic Filing — that Plaintiff did not file his
Complaint on October 31, 2016. At bottom, the question Defendants’ motion to dismiss
posed (When did Plaintiff file his Complaint?) was one of fact. And converting
Defendants’ motion to dismiss into a motion for summary judgment allowed the Court
to consider documents that squarely answer that question.
Plaintiff filed his Complaint on November 1, 2016. Plaintiff may have
paid a filing fee to open this case on October 31, 2016. But he did not actually
file his Complaint until the following day. Accordingly, the Court grants
Defendants’ motion for partial summary judgment, and dismisses Plaintiff’s
First, Second, and Ninth Claims for Relief.
Resolving Defendants’ motion for partial summary judgment requires the
Court to answer two questions. First, what showing must a movant make to
prevail on a Rule 56 motion for summary judgment? Second, when is a
Complaint deemed “filed” in this District? The Court addresses each in turn.
Rule 56 Motions for Summary Judgment
Rule 56(a) provides that a “court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Thus,
“[a] motion for summary judgment may properly be granted … only where there
is no genuine issue of material fact to be tried, and the facts as to which there
is no such issue warrant the entry of judgment for the moving party as a
matter of law.” Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015)
(quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)). “The
function of the district court in considering [a] motion for summary judgment is
not to resolve disputed questions of fact but only to determine whether, as to
any material issue, a genuine factual dispute exists.” Id. (quoting Kaytor, 609
F.3d at 545). And “[i]n determining whether summary judgment is appropriate,
a court must construe the facts in the light most favorable to the non-moving
party and … resolve all ambiguities and draw all reasonable inferences against
the movant.” Kuhbier v. McCartney, Verrino & Rosenberry Vested Producer
Plan, — F. Supp. 3d —, No. 14 Civ. 888 (KMK), 2017 WL 933126, at *7
(S.D.N.Y. Mar. 8, 2017) (internal quotation marks omitted) (quoting Brod v.
Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)).
A party moving for summary judgment “bears the initial burden of
demonstrating ‘the absence of a genuine issue of material fact.’” 5 ICC Chem.
Corp. v. Nordic Tankers Trading a/s, 186 F. Supp. 3d 296, 301 (S.D.N.Y. 2016)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “[A] fact is material
if it ‘might affect the outcome of the suit under the governing law.’” Royal
Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746
F.3d 538, 544 (2d Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). And “[a] dispute is ‘genuine’ if ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Negrete v.
The Court is aware that the 2010 Amendments to the Federal Rules of Civil Procedure
revised the summary judgment standard from a genuine “issue” of material fact to a
genuine “dispute” of material fact. See Fed. R. Civ. P. 56, advisory comm. notes (2010
Amendments) (noting that the amendment to “[s]ubdivision (a) ... chang[es] only one
word — genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of
a summary-judgment determination.”). As of this past year, the Second Circuit
continues to use both formulations. Compare, e.g., Smith v. Barnesandnoble.com, LLC,
839 F.3d 163, 166 (2d Cir. 2016) (“The moving party bears the burden to demonstrate
the absence of any genuine issues of material fact.”), with, e.g., Harris v. Miller, 818
F.3d 49, 54 (2d Cir. 2016) (“[W]e conclude that there are genuine disputes of material
fact [.]”). Indeed, the Circuit sometimes uses the terms interchangeably within the
same decision. Compare, e.g., Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d
155, 162 (2d Cir. 2016) (“[T]here is a genuine dispute of material fact[.]”), with, e.g., id.
at 168 (“We therefore think that [the nonmovant] has raised a genuine issue of material
fact[.]”). The Court at times relies on the traditional phrasing in this Opinion.
Citibank, N.A., — F. Supp. 3d —, No. 15 Civ. 7250 (RWS), 2017 WL 758516, at
*6 (S.D.N.Y. Feb. 27, 2017) (quoting Liberty Lobby, 477 U.S. at 248).
If a summary-judgment movant satisfies his initial burden, then “the
adverse party must set forth specific facts showing that there is a genuine
issue for trial.” Liberty Lobby, 477 U.S. at 250 (internal quotation marks and
citation omitted). “To defeat summary judgment … non-moving parties ‘must
do more than simply show that there is some metaphysical doubt as to the
material facts’ and they ‘may not rely on conclusory allegations or
unsubstantiated speculation.’” Bermudez v. City of N.Y., 790 F.3d 368, 373-74
(2d Cir. 2015) (quoting Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir.
2005)). Put another way: “At the summary judgment stage, a nonmoving party
‘must offer some hard evidence showing that its version of the events is not
wholly fanciful.’” Jeffreys, 426 F.3d at 554 (quoting D’Amico v. City of N.Y., 132
F.3d 145, 149 (2d Cir. 1998)).
Filing Complaints in the Southern District of New York
Under Federal Rule of Civil Procedure 3, “[a] civil action is commenced by
filing a complaint with the court.” Fed. R. Civ. P. 3. Rule 5(d)(2) clarifies that a
complaint “is filed by delivering it … to the clerk[,] or … to a judge who agrees
to accept it for filing, and who must then note the filing date on the paper and
promptly send it to the clerk.” Fed. R. Civ. P. 5(d)(2). And Rule 5(d)(3) adds
that “[a] court may, by local rule, allow papers to be filed, signed, or verified by
electronic means that are consistent with any technical standards established
by the Judicial Conference of the United States.” Fed. R. Civ. P. 5(d)(3).
This District has such a rule. Pursuant to Local Civil Rule 5.2(a),
“[p]arties serving and filing papers” are required to “follow the instructions
regarding Electronic Case Filing (ECF) published on the” Southern District of
New York’s website. S.D.N.Y. Local R. 5.2(a). Those instructions are collected
in a document titled, fittingly, “Electronic Case Filing Rules & Instructions.”
Electronic Case Filing Rules & Instructions, United States District Court for the
Southern District of New York (June 26, 2017) (document available at
http://www.nysd.uscourts.gov/ecf_filing.php) (hereinafter, “SDNY ECF Rules”).
The SDNY ECF Rules mandate that, in general, “all documents required
to be filed with the Court must be filed electronically.” SDNY ECF Rules § 1.1.
This includes complaints filed in civil matters. Id. at § 1.2. Under Section 3.2
of the SDNY ECF Rules, “[w]hen a document has been filed electronically, the
official record is the electronic recording of the document as stored by the
Court … and the filing party is bound by the document as filed.” Id. at § 3.2.
And Section 3.2 adds that “a document filed electronically is deemed filed on
the date and time stated on the Notice of Electronic Filing (NEF) from the
Court.” Id.; accord id. at § 13.12 (“An electronically filed document is deemed
filed on the ‘filed on’ date indicated on the Notice of Electronic Filing (NEF).”);
see also id. at § 3.1 (“[E]lectronic filing of a document in the ECF system
consistent with these procedures, together with the transmission of a Notice of
Electronic Filing (NEF) from the Court, constitutes filing of the document for all
purposes of the Federal Rules of Civil Procedure[.]”).
The SDNY ECF Rules make this a straightforward case. Title VII and the
ADEA required Plaintiff to file his Complaint within 90 days of receiving his
Right to Sue Letter. See, e.g., George v. Prof’l Disposables Int’l, Inc., 221 F.
Supp. 3d 428, 435 (S.D.N.Y. 2016) (ADEA); Moore v. City of N.Y., No. 15 Civ.
4578 (KPF), 2016 WL 3963120, at *6 (S.D.N.Y. July 21, 2016) (Title VII).
“Generally speaking, ‘[t]his requirement should be strictly enforced and not
extended by even one day.’” Martinez v. Riverbay Corp., No. 16 Civ. 547 (KPF),
2016 WL 5818594, at *3 (S.D.N.Y. Oct. 4, 2016) (internal quotation marks
omitted) (quoting Holmes v. NBC/GE, 914 F. Supp. 1040, 1042 (S.D.N.Y. 1996))
(making this point in reference to Title VII); Nash v. Human Dev. Servs. of
Westchester, No. 02 Civ. 8551 (DF), 2003 WL 22871911, at *5 (S.D.N.Y. Dec. 4,
2003) (quoting Holmes, 914 F. Supp. at 1042) (ADEA). It is undisputed that
Plaintiff’s 90-day filing deadline fell on October 31, 2016. Thus, under the
SDNY ECF Rules, Plaintiff was required to upload his Complaint via ECF on or
before that date.
Plaintiff did not meet this deadline. The thrust of Plaintiff’s opposition
brief is this: Although Plaintiff did not “upload” the Complaint “into the
CM/ECF system on October 31, 2016,” he nonetheless “filed” “this action” on
October 31, 2016. (Pl. Opp. 7). That argument rests on a misunderstanding of
the SDNY ECF Rules. In order to file his Complaint, Plaintiff needed to upload
it into this Court’s CM/ECF system — in this District, “filing” and “uploading”
a complaint are one and the same. And if Plaintiff had filed his Complaint on
October 31, 2016, he would have received a Notice of Electronic Filing
indicating as much. But the November 1 Notice of Electronic Filing — which
directed Plaintiff “to electronically file the initial pleading in this case” (11/1/16
Notice of Electronic Filing) — affirmatively indicates that Plaintiff did not file his
Complaint on October 31, 2016. Plaintiff’s Title VII and ADEA claims are thus
Plaintiff attempts to resist this conclusion in two ways. He does not,
however, point to a single piece of evidence that suggests that he filed the
Complaint on or before October 31, 2016. And in turn, Plaintiff has fallen
short of identifying a genuine issue of material fact capable of defeating
Defendants’ motion for partial summary judgment. See Liberty Lobby, 477
U.S. at 250. Nonetheless, the Court will address and reject Plaintiff’s two
First, Plaintiff suggests that his use of the Microsoft Edge internet
browser merely caused the Complaint to be deficient in its form, and thus this
Court should deem the Complaint filed on October 31, 2016. (Pl. Opp. 8-9).
This argument suffers from several flaws. For one, nothing in the record
establishes that Plaintiff’s use of a browser incompatible with the Court’s
CM/ECF system is the reason why his Complaint was not uploaded on
October 31, 2016. (Cf. Def. Br. 4 (noting that District’s CM/ECF “log-in page”
does not list Microsoft Edge “as an approved browser”)). Indeed, there is no
evidence — apart from Plaintiff’s unsworn assertions — that Plaintiff attempted
to file his Complaint on October 31, 2016.
And even if the Court accepts as true Plaintiff’s claim that his browser
prevented him from timely filing the Complaint, this technological hiccup was
not a defect in the Complaint’s form. True, Federal Rule of Civil Procedure
5(d)(4) provides that “[t]he clerk must not refuse to file a paper solely because it
is not in the form prescribed by [the Federal Rules of Civil Procedure] or by a
local rule or practice.” Fed. R. Civ. P. 5(d)(4). And Rule 83(a)(2) adds that “[a]
local rule imposing a requirement of form must not be enforced in a way that
causes a party to lose any right because of a nonwillful failure to comply.” Fed.
R. Civ. P. 83(a)(2). But neither Rule avails Plaintiff. Plaintiff’s use of Microsoft
Edge did not render the Complaint deficient in form; it prevented the
Complaint from being filed at all. Put simply, on October 31, 2016, the Clerk of
this Court had no Complaint of Plaintiff’s to refuse. Cf. Contino v. United
States, 535 F.3d 124, 126-27 (2d Cir. 2008) (per curiam) (appellant timely filed
notice of appeal by electronically filing notice within 60 days of judgment being
entered in the Southern District of New York, despite the fact that notice of
appeal was rejected because SDNY ECF Rules required notice to be filed in
Second, Plaintiff asserts that he timely filed his Complaint because he
uploaded it within five days of receiving the November 1 Notice of Electronic
Filing. This argument cuts against Plaintiff, because it underscores the fact
that he filed the Complaint after October 31, 2016. The November 1 Notice of
Electronic Filing informed Plaintiff that he had not yet filed his Complaint, and
warned him that if he failed to file his Complaint by November 7, 2016, his
case might be dismissed. Plaintiff received this notice because he paid a filing
fee to open this case on October 31 (hence, the docket bears a “Date Filed” of
“10/31/2016”) but failed to upload his Complaint that same day. By filing his
Complaint on November 1, 2016, Plaintiff saved his case from being
administratively closed by the Clerk of this Court. But the November 7, 2016
filing deadline that the November 1 Notice of Electronic Filing imposed did not
extend or override the filing deadlines in Title VII or the ADEA. To satisfy those
statutes, Plaintiff needed to file his Complaint on or before October 31, 2016.
He failed to do so, and thus his claims for relief under both statutes must be
For the reasons set forth above, Defendants’ motion for partial summary
judgment is GRANTED, and Plaintiff’s First, Second, and Ninth Claims for
Relief are DISMISSED. The Clerk of Court is directed to terminate the motion
appearing at Docket Entry Number 18.
The parties are ORDERED to file a Proposed Civil Case Management Plan
and Scheduling Order by July 10, 2017.
June 26, 2017
New York, New York
KATHERINE POLK FAILLA
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?