Thomas v. Dollar Tree

Filing 12

ORDER signed by Chief Judge Pamela Pepper on 7/15/2021. 11 Plaintiff's motion for reconsideration GRANTED; order of dismissal (dkt. no. 9) and judgment (dkt. no 10) VACATED. Clerk of Court to REOPEN case. USMS to serve copy of complaint and this order on defendant Dollar Tree under FRCP 4. Defendant to file responsive pleading. (cc: all counsel and mailed to Ovell Thomas)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

OVELL THOMAS,
Plaintiff,
Case No. 20-cv-1458-pp
v.
DOLLAR TREE,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION (DKT.
NO. 11), REOPENING CASE AND ORDERING U.S. MARSHAL TO SERVE
DEFENDANT

On November 6, 2020, the court adopted Magistrate Judge Nancy
Joseph’s report and recommendation and dismissed the amended complaint
because the plaintiff had had three opportunities to provide the court with
evidence that he had exhausted his administrative remedies before filing this
federal case. Dkt. No. 9 at 4. The court acknowledged that the filing of a timely
complaint is not a jurisdictional prerequisite and normally is considered an
affirmative defense. Id. at 3. Because the plaintiff had been given three
opportunities to provide the notice of right-to-sue letter or otherwise prove that
he’d gone to the EEOC before filing in this court, however, the court dismissed
the case without prejudice. Id. at 4.
One month later the plaintiff filed a letter, which the Clerk of Court
docketed as a motion for reconsideration. Dkt. No. 10. The plaintiff attached to
the letter his notice of right to sue from the EEOC (dated August 14, 2020),
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dkt. no. 11-1, and apologized for the inconvenience. Id. He explained that he
did not know he was supposed to have the letter, and that “Mr. Drake” knew he
was supposed to have the letter but did not send the letter to the plaintiff when
“Mr. Drake” finished with the plaintiff’s case. Id. The plaintiff adds that he
“gave” Mr. Drake his witnesses but that Mr. Drake never contacted them. Id.
“[T]he Federal Rules of Civil Procedure do not expressly recognize a
motion to reconsider.’” United States v. Roth, No. 10 Misc. 001, 2010 WL
1541343, at *2 (E.D. Wis. April 19, 2010). Courts in the Seventh Circuit,
however, generally apply the standards of Rule 59(e) or Rule 60(b) to such
motions. Washington Frontier League Baseball, LLC v. Zimmerman, No. 1:14cv-01862-TWP-DML, 2016 WL 4798988, at *1 (S.D. Ind. Sept. 14, 2016). Rule
59(e) allows a court to alter or amend a judgment if the party files the motion
“no later than 28 days after the entry of judgment.” Fed. R. Civ. P. 59(e). Rule
60(b) is available where a movant files within a “reasonable amount of time”
after final order and judgment. Fed. R. Civ. P. 60(b). The plaintiff filed his letter
thirty-one days after the court entered the judgment; the court will consider
the motion under Rule 60(b).
Rule 60(b) allows a party to seek relief from an “order” for any of six
enumerated reasons, including mistake, inadvertence, newly discovered
evidence, fraud or any other reason that justifies relief. Fed. R. Civ. P. 60(b).
The plaintiff says that he relied on Mr. Drake (although he does not say who
Mr. Drake is or why he was relying on him). The August 14, 2020 right-to-sue
letter sheds some insight—“Mr. Drake” may be Drake C. Van Thiel, the
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investigator and EEOC representative. Dkt. No. 11-1 at 1. The letter is
addressed to Ovell Thomas, at 4401 Deek Avenue Apt. A in Killeen Texas, id.,
which the plaintiff says is an old address.1 Dkt. No. 11. Moreover, the plaintiff
says that Mr. Drake simply gave him the court’s phone number and did not
give him the letter when Drake got finished with the case. Id. The plaintiff
appears to allege that before the court dismissed this federal lawsuit, the
plaintiff had not received the right-to-sue letter and didn’t realize he should
have had the letter. The court finds such circumstances justify relief and will
reopen the case (which it had dismissed without prejudice).
Magistrate Judge Joseph previously granted the plaintiff leave to proceed
without prepaying the filing fee, and this court had found that the amended
complaint alleged discrimination and retaliation in connection with the
defendant’s decision to fire the plaintiff from his position in an Appleton store.2
Dkt. No. 9 at 3. The court will allow the plaintiff to proceed on that claim and
order the U.S. Marshal to serve the defendant.
The court GRANTS the plaintiff’s motion for reconsideration. Dkt. No. 11.

In the amended complaint, the plaintiff lists his address as 1412 Alta Mira
Dr., Killeen, Texas. Dkt. No. 6.
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This case may belong in the Green Bay Division because the plaintiff worked
in Appleton, which is part of Calumet, Outagamie and Winnebago counties.
The Eastern District of Wisconsin’s General Order Regarding Assignment of
Cases to the United States District Judge Designated to Hold Court in Green
Bay, Wisconsin, provides that civil cases having the greatest nexus to these
counties shall be assigned to the Green Bay Division. See wied.uscourts.gov/
general-orders/assignment-cases-green-bay-division-amended.
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The court ORDERS that the November 6, 2020 order of dismissal (Dkt.
No. 9) and the corresponding judgment (Dkt. No. 10) are VACATED.
The court ORDERS the Clerk of Court to REOPEN this case.
The court ORDERS that the United States Marshal shall serve a copy of
the complaint and this order on the defendants under Fed. R. Civ. P. 4. The
court advises the plaintiff that Congress requires the U.S. Marshals Service to
charge for making or attempting service. 28 U.S.C. §1921(a). The current fee
for waiver-of-service packages is $8.00 per item mailed. The full fee schedule is
provided at 28 C.F.R. §§0.114(a)(2), (a)(3). Although Congress requires the
court to order service by the U.S. Marshals Service precisely because indigent
plaintiffs do not have the funds to pay filing fees, it has not made any provision
for these service fees to be waived by either the court of the U.S. Marshals
Service.
The court ORDERS that the defendant must answer or otherwise
respond to the complaint within the time allowed by the Federal Rules of Civil
Procedure.
The court ORDERS that plaintiff must submit all correspondence and
pleadings to
United States District Court
Office of the Clerk
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
DO NOT MAIL ANYTHING DIRECTLY TO CHAMBERS. It will only delay the
processing of the case.
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The plaintiff must communicate only with the defendant’s lawyer. The
parties may not begin discovery (asking each other for documents) until after
the defendant has answered or otherwise responded and the court has issued a
scheduling order setting deadlines for completing discovery and filing
dispositive motions. The plaintiff should keep a copy of every document he files
with the court. If the plaintiff’s address changes, he must notify the court
immediately; if he doesn’t, he may not receive important notices and
documents relating to his case. If the plaintiff repeatedly fails to file documents
by the deadlines the court sets, the court could dismiss his case for failure to
diligently prosecute it. Civil Local Rule 41(c) (E.D. Wis.).
Dated in Milwaukee, Wisconsin this 15th day of July, 2021.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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