NICKLES v. BANK OF AMERICA CORPORATION

Filing 4

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 09/30/2013; that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support (Docket Entry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that the Complaint's federal claims be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and its state-law claims be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DIANNE G. NICKLES,
Plaintiff,
v.
BANK OF AMERICA CORP.,
Defendant.

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1:13CV798

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed in
conjunction with Plaintiff’s pro se Complaint (Docket Entry 2).
The Court will grant Plaintiff’s request to proceed as a pauper for
the limited purpose of recommending dismissal of her federal claims
under 28 U.S.C. § 1915(e)(2)(B)(ii) and dismissal without prejudice
of her state-law claims pursuant to 28 U.S.C. § 1367(c)(3).
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953

(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).

“Dispensing with filing fees,

however, [is] not without its problems.
the statute

d[o]

not face

ordinary litigants.

the

same

Parties proceeding under
financial

constraints

as

In particular, litigants suing in forma

pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).
To

address

this

concern,

the

in

forma

pauperis

statute

provides, in relevant part, that “the court shall dismiss the case
at any time if the court determines that – . . . (B) the action or
appeal – . . . fails to state a claim on which relief may be
granted . . . .”

28 U.S.C. § 1915(e)(2).

A complaint falls short

when it does not “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) (emphasis added)
(internal citations omitted) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).

This standard “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In
other words, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

2

Id.1

The Court may also anticipate affirmative defenses that

clearly appear on the face of the complaint, such as a claim barred
by the applicable statute of limitations.

Nasim, 64 F.3d at 955;

Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir. 1983).
DISCUSSION
Plaintiff’s Complaint names Bank of America as the only
Defendant.

(Docket Entry 2 at 1.)

It asserts that Defendant

failed to hire her and thus discriminated against her because of
her disability and her age, in violation of the Americans with
Disabilities Act (“ADA”) and the Age Discrimination in Employment
Act (“ADEA”).

(Id. at 2.)

The Complaint also alleges state-law

claims under the North Carolina Persons With Disabilities Act, for
intentional infliction of emotional distress, and for defamation.
(Id. at 3-4.)

1

Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (applying Twombly in dismissing
pro se complaint); accord Atherton v. District of Columbia Office
of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se
complaint . . . ‘must be held to less stringent standards than
formal pleadings drafted by lawyers.’
But even a pro se
complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” (quoting
Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 679,
respectively)).
3

However, the face of the Complaint reveals that Plaintiff’s
federal employment

claims

are

not

timely.

According

to

the

Complaint, the Equal Employment Opportunity Commission (“EEOC”)
sent Plaintiff a notice-of-right-to-sue letter on March 22, 2012,
which she received on March 24, 2012.

(Docket Entry 2 at 2.)

Both

the ADA and the ADEA require the filing of a civil action within
ninety days of such notice.

42 U.S.C. §§ 2000e-5(f)(1), 12117(a)

(ADA); 29 U.S.C. § 626(e) (ADEA).2

Plaintiff did not file her

Complaint until September 19, 2013, well over a year after her
receipt of the EEOC’s notice.

(See Docket Entry 1.)

Plaintiff’s

claims thus fail as a matter of law under the ADA or the ADEA.
See, e.g., Knotts v. Davie Cnty. Inspection, No. 1:06CV412, 2007 WL
295339, at *1 (M.D.N.C. Jan. 29, 2007) (unpublished) (dismissing
ADA claim for failure to state a claim where the plaintiff “file[d]
his complaint . . . well in excess of the 90 days required by
federal law and outlined in his Right to Sue letter”).
Plaintiff’s only remaining claims arise under state law.
“[I]n any civil action of which the district courts have original
jurisdiction, the district courts have supplemental jurisdiction
over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same
case

or

controversy

under

Article

2

III

of

the

United

States

The United States Supreme Court has declined to relax the
EEOC deadlines for pro se plaintiffs. See Baldwin Cnty. Welcome
Ctr. v. Brown, 466 U.S. 147, 150 n.4 (1984).
4

Constitution.” 28 U.S.C. § 1367(a). However, “the district courts
may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if . . . the district court has dismissed all
claims over which it has original jurisdiction.”
1367(c)(3).

28 U.S.C. §

“It has consistently been recognized that pendent

jurisdiction is a doctrine of discretion, not of plaintiff's right
. . . . [I]f the federal claims are dismissed before trial, even
though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.”

United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 726 (1966).

In light of the recommended

dismissal of the federal claims at the pleading stage and the
absence of grounds for the exercise of diversity jurisdiction,3 the
Court should decline to exercise supplemental jurisdiction over
Plaintiff’s state-law claims and, instead, should dismiss those
claims without prejudice.4

3

The Complaint identifies Plaintiff as a resident of
Greensboro, North Carolina, and Defendant as both incorporated in
North Carolina and having its principal place of business in
Charlotte, North Carolina.
(Docket Entry 2 at 1–2.)
Such
circumstances cannot satisfy the diversity jurisdiction statute.
See 28 U.S.C. § 1332(a).
4

To the extent statute of limitations concerns may apply to
Plaintiff’s refiling of the remaining claims in state court, 28
U.S.C. § 1367(d) provides: “The period of limitations for any claim
asserted under subsection (a), and for any other claim in the same
action that is voluntarily dismissed at the same time as or after
the dismissal of the claim under subsection (a), shall be tolled
while the claim is pending and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.”
5

CONCLUSION
Plaintiff’s Complaint fails to state a claim for any federal
cause of action.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis and Affidavit/Declaration in Support
(Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that the Complaint’s federal claims be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and its statelaw claims be dismissed without prejudice pursuant to 28 U.S.C. §
1367(c)(3).

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 30, 2013

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