Paula Angles v. Dollar Tree Stores, Inc.
Opinion of the Court
Affirmed by unpublished opinion. Judge SHEDD wrote the majority opinion, in which Judge DIAZ joined. Judge DAVIS wrote a dissenting opinion.
Unpublished opinions are not binding precedent in this circuit.
Paula Angles and other named plaintiffs (collectively “the Plaintiffs”) in this proposed class action appeal the dismissal of their complaint as untimely. For the following reasons, we affirm.
I.
In 2008, the Plaintiffs filed an action against Dollar Tree Stores in the Northern District of Alabama alleging claims under the Equal Pay Act. Collins v. Dollar Tree Stores, Inc., 2:08-cv-1267 (Collins I).
On February 4, 2009, 90 days after the first right-to-sue letters were mailed, the Plaintiffs moved pursuant to Federal Rule of Civil Procedure 15 to amend their complaint in Collins I to add sex discrimination claims under Title VII. Dollar Tree opposed the proposed amendment, arguing that proper venue for the Title VII claims was in Virginia, not Alabama.
On June 17, the Alabama district court held a hearing on the motion for leave to amend, noting that it was inclined to deny the motion as futile because venue was improper. The district court also noted that the motion for “Consent” was improper because, “[tjhere’s nothing for you to consent to unless I amend, unless I grant your motion for leave to amend, which, again, I’m inclined to deny.” (J.A. 263). Failing to recognize the Alabama district court’s signal about their need to file in the proper district, on July 9, the Plaintiffs filed another motion to amend the complaint. At this point, only 76 days had passed since the EEOC issued the April 24 right-to-sue letters.
On September 30, 2009, the Alabama district court denied the first motion for leave to amend as moot and the second motion for leave to amend as futile because of improper venue. The next day, the Plaintiffs filed a new complaint in the Eastern District of Virginia stating the same Title VII claims previously included in the proposed amended complaint in Collins I. Because the action was filed outside of Title VII’s 90-day limitations period, the district court dismissed the complaint as untimely filed. In doing so, the court rejected the Plaintiffs’ argument that moving to amend their complaint in Collins I tolled Title VII’s statute of limitations and noted that the case was not one that “turns on a plaintiff missing the filing deadline by a few days.” (J.A. 508). The Plaintiffs filed a Rule 59(e) motion to alter or amend the order, which the district court denied. The Plaintiffs then filed this appeal.
II.
On appeal, the Plaintiffs argue that the district court erred in finding that their Title VII claims are time-barred. We review the district court’s 12(b)(6) dismissal de novo, Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), and its denial of a Rule 59(e) motion for abuse of discretion, Orem v. Rephann, 523 F.3d 442, 451 n. 2 (4th Cir. 2008).
A.
At the outset, we note that the Plaintiffs do not dispute that their complaint was filed well outside the relevant limitations period. Title VII requires that aggrieved persons file a civil action within 90 days of receiving a right-to-sue letter. 42 U.S.C. § 20 OOe — 5 (f) (1). The last right-to-sue letters were issued on April 24, 2009, and the Plaintiffs’ complaint was not filed until October 1, more than 150 days later.
In the face of the clear untimeliness of this action, the Plaintiffs contend that the filing of the motion for leave to file an amended complaint in Alabama tolls the statute of limitations in this case. We disagree. Federal Rule of Civil Procedure 15 governs the amendment of pleadings and, in pertinent part, it provides that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2).
The Fifth Circuit has explained the operation of Rule 15 in this situation as follows:
[Flailing to request leave from the court when leave is required makes a pleading more than technically deficient. The failure to obtain leave results in an amended complaint having no legal effect. Without legal effect, it cannot toll the statute of limitations period.
U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296 (5th Cir. 2003) (emphasis added).
In HealthSouth, the plaintiff, Mathews, filed an action against his former employer under the False Claims Act on April 1, 1999. Without leave of the court, he filed an amended complaint on August 2, adding state law claims for, inter alia, age discrimination. The clerk of court issued Mathews a deficiency notice for failing to seek leave to file the amended complaint, and on August 9, he complied with Rule 15(a) and requested leave to file the amended complaint, which the district court granted the same day. The statute of limitations on the age discrimination claim ran on August 4, 1999. The district court ultimately dismissed the age discrimination claim as time-barred even though the claim was timely when the plaintiff first filed the amended complaint. On appeal, the plaintiff contended that, under Rule 3 and Rule 5, the age discrimination claim was timely “filed” on August 2 when he filed the amended complaint. The Fifth Circuit disagreed, explaining that “[u]nder Rule 15(a), [the plaintiff] needed permission before his amended complaint could be filed, which he did not have on August 2.” Id. at 296. Without this permission, the filing had “no legal effect” and “cannot toll the statute of limitations period.” Id. The Fifth Circuit further noted that, while Rule 5 would deem a technically deficient pleading “filed,” because, “[a]s the more specific rule with respect to amended pleadings, Rule 15(a), not Rule 5[] governs.” Id.
Likewise, in this case, although the Title VII claims were timely when the Plaintiffs moved for leave to file the amended complaint, the motion for leave was never granted. The amended complaint was thus never filed and lacks the ability to toll the limitations period. This conclusion is consistent with the general rule that a Title VII complaint that has been filed but then dismissed without prejudice does not toll the 90-day limitations period. See, e.g., O’Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (“In instances where a complaint is timely filed and later dismissed, the timely filing of the corn-
B.
The Plaintiffs emphasize several lines of cases in an effort to avoid this result.
As a party has no control over when a court renders its decision regarding the proposed amended complaint, the submission of a motion for leave to amend, properly accompanied by the proposed amended complaint that provides notice of the substance of those amendments, tolls the statute of limitations, even though technically the amended complaint will not be filed until the court rules on the motion.
Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993). The Plaintiffs contend that this rule applies here. The Plaintiffs’ argument on this point faces several problems, however. First, in each of the cases the Plaintiffs rely on, the motion for leave to amend was granted and, as the district court explained, the timeliness of the amended complaint in such cases “stems from the confluence of the plaintiff’s timely preservation of the issue for the court’s consideration ... and the court’s inherent power to enter a nunc pro tunc order on that motion that retroactively causes the proposed amended complaint to be considered filed as of the date of the motion.” (J.A. 511 n. 3). Indeed, while several of the cases, e.g., Moore, reference “tolling,” earlier cases note that “where the petition for leave to amend ... has been filed prior to expiration of the statute of limitations, while the entry of the court order and the filing of the amended complaint have occurred after,” the “amended complaint is deemed filed within the limitations period.” Mayes v. AT & T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir. 1989) (emphasis added).
Accordingly, we find that neither the Rule 15 cases the Plaintiffs rely on — which are more properly characterized as dealing with nunc pro tunc power than tolling— nor American Pipe/Crown, Cork & Seal provide relief for the untimely filing of the Plaintiffs’ complaint.
The Plaintiffs contend in the alternative that the statute of limitations should be equitably tolled in this case. Equitable tolling is a narrow exception to statutes of limitations and is appropriate “where the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action.” English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). The doctrine operates to keep defendants from engaging in “misconduct that prevents the plaintiff from filing his or her claim on time.” Id. In contrast, equitable tolling is not appropriate in eases where “the claimant failed to exercise due diligence in preserving his legal rights.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). We review the district court’s denial of equitable tolling for abuse- of discretion. Chao v. Virginia Dep’t of Transp., 291 F.3d 276, 279-80 (4th Cir. 2002).
Having reviewed the record, we agree with the district court that equitable tolling is inappropriate in this case, and we certainly can discern no abuse of discretion in that decision. Our easelaw on equitable tolling has consistently focused on external factors hampering the ability to file a timely claim, and no such factor is present in this case. See e.g., Williams v. Giant Food Inc., 370 F.3d 423, 430 n. 4 (4th Cir. 2004) (quoting Kokotis v. United States Postal Serv., 223 F.3d 275, 280 (4th Cir. 2000) (noting equitable tolling “is not appropriate, here, because [the plaintiff] did not allege that [the defendant] deceived or misled her ... ‘in order to conceal the existence of a cause of action.’ ”)).
The Plaintiffs rely heavily on Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), but, like the district court, we believe that case is inapposite. In Burnett, the plaintiff timely filed an action under the Federal Employers’ Liability Act (FELA) in an Ohio state court. Id. at 424, 85 S.Ct. 1050. The state court dismissed the action for improper venue, and the plaintiff state action was timely filed, but the federal action was not. Id. at 426, 85 S.Ct. 1050. The Court held that equitable tolling was appropriate because “when a plaintiff begins a timely FELA action in state court having jurisdiction, and serves the defendant with process and plaintiffs case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit.” Id. at 434-35, 85 S.Ct. 1050. The Court found it significant that the plaintiff “did not sleep on his rights” but timely filed an action in state court, that service of process was made, that Ohio permitted waiver of venue objections, and that the defendant railroad itself had previously waived improper venue. Id. at 429, 85 S.Ct. 1050. As the district court properly noted, however, there are “key factual and procedural distinctions” between Burnett and this case, namely that “unlike in Burnett, no timely Title VII action was ever actually commenced” because the motion to amend was never granted. (J.A. 516).
In affirming the district court’s conclusion on equitable tolling, we emphasize that the Plaintiffs had two avenues available to ensure that their rights were vindicated in this litigation. First, to the extent the Plaintiffs believe the district court in Alabama committed legal error in denying the motion to amend, they could have appealed that decision to the Eleventh Circuit. The Plaintiffs are asking us to equitably toll the statute of limitations, not because they were misled by Dollar Tree, or provided inaccurate information by the EEOC, but because of an unfavorable judicial decision — a decision that they have not appealed. Second, the Plaintiffs could have protected themselves by timely filing an action in the Eastern District of Virginia — an option still available at the time the district court indicated that it was
Accordingly, under these particular circumstances, we agree with the district court that equitable tolling was not appropriate.
III.
For the foregoing reasons, we affirm the district court’s grant of Dollar Tree’s motion to dismiss.
AFFIRMED.
.Cynthia Collins was originally the lead plaintiff in this action as well. Pursuant to a settlement agreement with Dollar Tree, she voluntarily dismissed her claims and Paula Angles became the lead plaintiff.
. Three of the named plaintiffs never filed an EEOC charge.
. Earlier, Dollar Tree had unsuccessfully moved to transfer the Equal Pay Act claims to Virginia.
. In contrast to motions to amend, the initial filing of a complaint is governed by Rule 3, which explains that "[a] civil action is commenced by filing a complaint with the court.” Fed.R.Civ.P. 3. In conjunction with Rule 3, Rule 5 provides that a "paper is filed by
. We have approved of this reasoning in several unpublished cases. See Quinn v. Watson, 119 Fed.Appx. 517, 518 n. * (4th Cir. 2005) ("In instances where a complaint is timely filed and later dismissed, the timely filing of the complaint does not ‘toll’ or suspend the ninety-day limitations period.”).
. As part of this argument, in their reply brief, the Plaintiffs for the first time assert that this case is analogous to situations in which plaintiffs file a request to proceed in forma pauper-is (IFP) in conjunction with their complaint. Of course, a parly waives an argument by failing to raise it below, United States v. Evans, 404 F.3d 227, 236 n. 5 (4th Cir. 2005), and by waiting to raise it until the reply brief, Cavallo v. Star Enter., 100 F.3d 1150, 1152 n. 2 (4th Cir. 1996).
. This approach stems from a Fifth Circuit case that predates the Federal Rules of Civil Procedure. Rademaker v. E.D. Flynn Exp. Co., 17 F.2d 15, 17 (5th Cir. 1927).
. In cases involving the relation back of an amended complaint to an "original pleading,” under Rule 15(c), courts have held that a
. Some courts have referred to American Pipe/Crown, Cork & Seal as "legal tolling” because it "is derived from a statutory source” as opposed to the "judicially created” doctrine of equitable tolling. Arivella v. Lucent Technologies, Inc., 623 F.Supp.2d 164, 176 (D.Mass. 2009). See also Joseph v. Wiles, 223 F.3d 1155, 1166-67 (10th Cir. 2000) (same). We have previously referred to them as a species of equitable tolling. Bridges, 441 F.3d at 211 ("The American Pipe/Crown, Cork & Seal equitable tolling rule is a limited exception to the universal rule that statutes of limitations are impervious to equitable exceptions.”).
. Courts have consistently concluded that American Pipe/Crown, Cork & Seal do not permit class actions to toll the statute of limitations for additional classes to be stacked upon them. See Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir. 1998) ("Plaintiffs may not stack one class action on top of another and continue to toll the statute of limitations indefinitely.”).
Dissenting Opinion
dissenting:
Not least because I am confident that Chief District Judge Sharon Lovelace Blackburn of the United States District Court for the Northern District of Alabama could not remotely have believed, when she dismissed Appellants’ Title VII claims in lieu of transferring venue to the Eastern District of Virginia, that these Appellants would arrive at the Fourth Circuit only to find the courthouse door locked, I respectfully dissent.
The majority ignores the compelling facts of this case and principally relies on outside circuit authority that is not on point to reach a fundamentally unfair result.
First, the majority unfairly takes the Appellants and their counsel to task for filing their Title VII claims in the Northern District of Alabama, suggesting that the outcome is justified here because of their own inaction. The majority suggests the Appellants’ consent to severance was a “recognition of] the potential statute of limitations problems,” Maj. Op. at 327-28, 332-33, but fails to mention that the Appellants only consented to severance because of the original (senior district) judge’s “standing instruction against assignment of any case with Rule 23 allegations.” J.A. 257. Indeed, in the consent to severance, they argued that venue was proper in the Northern District of Alabama.
Perhaps more problematic, the majority emphasizes that the district court “signaled]” to the Appellants “about their need to file in the proper district,” Maj. Op. at 328, as if the signalling had the legal effect of a final decision on the matter.
Second, the majority conveniently omits important facts that show the fundamental unfairness of the result it reaches. The Appellants did not engage in delay or unwisely “gamble” on their claims by engaging in baseless litigation in the Northern District of Alabama. Maj. Op. at 332-33 (quoting J.A. 519). Rather, they had a sound legal basis for their belief that venue was proper for the Title VII claims in the Northern District of Alabama. They asserted that under Title VII each named plaintiff did not need to independently show venue was properly laid in the district; rather, it was enough for at least one named plaintiff to be properly venued. See Appellants’ Br. 40. They also asserted that they could rely on venue being proper for six of the named plaintiffs, or “class representatives,” J.A. 371, while the remaining non-Alabama named plaintiffs could remain as class members until the court decided whether there would be a class. See Appellants’ Br. 40. They also relied on a pendent venue argument. See id. Chief Judge Blackburn rejected these arguments, but not on the basis of well-established Eleventh Circuit precedent.
Third, the majority compounds this fundamental injustice by relying principally on outside circuit authority, which is not on point, instead of more compelling reasoning behind cases cited by the Appellants, which are entirely consistent with the letter and the spirit of the Federal Rules of Civil Procedure and the purpose of statutes of limitations generally.
The cases relied on by the Appellants, which the majority rejects, are also admittedly not directly on point, but are more consistent with the purpose behind the rules of civil procedure and limitations periods generally. As the majority notes, courts have generally concluded that, when a motion for leave to amend is later granted, the amended complaint is deemed timely even if the court’s permission is granted after the limitations period ends. At least one of the underlying reasons justifying this result is that plaintiffs “ha[ve] no control over when a court renders its decision regarding the proposed amended complaint.” Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993); see also Sellers v. Butler, No. 02-3055-DJW, 2007 WL 2042513, at *12 (D.Kan. July 12, 2007) (“To hold otherwise would punish the plaintiff for the Court’s unavoidable delay in issuing the order granting leave to amend the complaint.”). This fairness concern applies equally where the motion for leave to amend is granted as where it is denied; indeed, the concern is heightened where the motion is ultimately denied. It is particularly apt here.
Allowing tolling under this rule is more consistent with the policies behind the Federal Rules of Civil Procedure. Rule 1, which “governs all the rest,” Aikens v. Ingram, 652 F.3d 496, 519 (4th Cir. 2011) (King, J., dissenting), provides that the Federal Rules of Civil Procedure “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” The Appellants’ decision to amend their complaint to add their parallel Title VII claims to the pending EPA claims in the Northern District of Alabama is wholly consistent with this rule. It was also consistent with Rule 23, which “permits and encourages class members to rely on the named plaintiffs to press their claims” and to avoid a “needless multiplicity of actions,” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 351-53, 103 S.Ct. 2392, 76
At the end of the day, I am confident that if Chief Judge Blackburn had any inkling whatsoever that in dismissing rather than transferring this action, she would foreclose further proceedings, she would take it all back. I would act on that confidence and reverse the order dismissing this case and remand for further proceedings.
Respectfully, I dissent.
. I am quite uncertain what to make of the majority's observation that Appellants "[f]ail[ed] to recognize the Alabama district court's signal about their need to file in the proper district,” Maj. Op. at 328, or how, precisely, that supports the outcome reached by the majority. It is true that at the hearing on the motion to amend in this case, Chief Judge Blackburn said what the majority attributes to her. But, local legal culture being whatever it is in the Northern District of Alabama, the judge also referred during the hearing to counsel by his nickname, “Bob.” J.A. 263. I have previously acknowledged that "local legal culture drives [certain] practices.” Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 414 (4th Cir. 2010) (Davis, J„ concurring); Priestley v. Astrue, 651 F.3d 410, 420 (4th Cir. 2011) (Davis, J., concurring). Nevertheless, deciding cases in this circuit on the basis of ostensible “signals” sent by out-of-circuit district judges to out-of-circuit lawyers in cases heard outside this circuit does not commend itself to me.
. See J.A. 255 (citing, in consent to severance, a case for the proposition that "the 'interests of justice generally instructs courts to transfer cases to the appropriate judicial district, rath
. Indeed, in making the final argument that leave should be denied because venue was improper in its opposition, Dollar Tree urged the court to "adopt the view of its sister courts in other Circuits and require that each named plaintiff individually satisfy the express venue provisions set forth in Title VII” "[i]n the absence of Eleventh Circuit authority.” J.A. 241 (emphasis added).
. The Eleventh Circuit has said,
"Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2. Furthermore, "[t]he court may cite to [unpublished opinions] where they are specifically relevant to determine whether the predicates for res judicata, collateral estop-pel, or double jeopardy exist in the case, to ascertain the law of the case, or to establish the procedural history or facts of the case.” 11th Cir. R. 36, I.O.P. 7.
Borden v. Allen, 646 F.3d 785, 808 n. 27 (11th Cir. 2011); see also Boutwell v. Advance Constr. Servs., No. 07-0447-WS-C, 2007 WL 2988238, at *4 n. 4 (S.D.Ala. Oct. 11, 2007) (“Even if defendant’s construction of [Pinson v. Rumsfeld, 192 Fed.Appx. 811 (11th Cir. 2006), the case relied upon by Chief Judge Blackburn] were valid, which it is not, the fact remains that Pinson is unpublished and therefore nonbinding.”).
. The Fourth Circuit case the majority relies upon to reach its conclusion is inapposite. In Bridges v. Department of Maryland State Police, 441 F.3d 197, 206-07 (4th Cir. 2006), this court had no reason to directly construe Rule 15, but instead considered whether would-be plaintiffs had standing to appeal.
.In dismissing this case, the district judge in the Eastern District of Virginia observed:
The court notes at the outset of this discussion plaintiffs' position that any claim by defendant of prejudice in this connection is dubious. As noted above, this case involves substantially the same named plaintiffs (and putative plaintiff class) as those in Collins I, suing the same defendant for a claim arising out of the same conduct set out in the original complaint in Collins I. Moreover, defendant clearly had actual notice within the statute of limitations period — in the form of the motion for leave to amend in Collins I, which attached the proposed amended complaint — of plaintiffs’ intent to pursue a Title VII claim in addition to its existing Equal Pay Act claim. It is therefore entirely arguable, and even somewhat persuasive, that permitting this case to proceed would not offend the admittedly strong policy considerations underlying the statute of limitations defense.
J.A. 514-15.
Similarly, in denying the Appellee’s post-judgment motion for attorney’s fees and sanctions, the lower court had this trenchant observation:
Indeed, in a sense, plaintiffs were merely doing what Judge Blackburn’s decision on their motions for leave to amend the Collins I complaint forced them to do; namely, to bring their Title VII claim as a separate action in this court, where, it should be noted, defendant had repeatedly argued venue was proper. It is somewhat ironic that defendant now seeks to characterize as vexatious multiplication of proceedings the very act that it had previously chastised plaintiffs for not doing; namely, filing their Title VII claim against defendant in this court instead of in the Northern District of Alabama.
Collins v. Dollar Tree Stores, Inc., Opinion and Order, No. 2:09-cv-00486-JBF, at 21-22 (E.D.Va. May 28, 2010) (final emphasis added).
. Plainly, under the circumstances of this case, we should allow "the limitations period to be tolled during the pendency of related litigation because it [is] consistent with the [remedial Title VII] statutory scheme and equitable principles to do so.” Bowen v. City of New York, 476 U.S. 467, 479 n. 11, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (alterations added); see also Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967) ("We consider it much more consistent with the overall congressional purpose to apply a traditional equitable tolling principle, aptly suited to the particular facts of this case and nowhere eschewed by Congress, to preserve petitioners’ cause of action.”).
. My confidence is bolstered by Chief Judge Blackburn's recognition of the potential harshness of the result, see J.A. 371, and allusion to the alleged "futility” of the Appellants’ Title VII claims. But see J.A. 283 (Chief Judge Blackburn recognizing that Appellants’
A simple thought experiment demonstrates the correctness of such an outcome. Imagine that a putative class action was timely filed under Title VII laying venue in the Western District of North Carolina but where, arguably, venue lies only in the District of South Carolina. Several months after a hearing on the defendants' contested motion to dismiss (or, as here, alternatively, to transfer) for improper venue, and after the ninety-day period for filing a new action had expired, the district court dismisses the case rather than transferring it to South Carolina. I have no doubt that this court would reverse a decision of the South Carolina district court dismissing a newly-filed action in that district, whether on the basis of legal tolling, equitable tolling, or a plain vanilla abuse of discretion determination. The same result should obtain here.
Reference
- Full Case Name
- Paula C. ANGLES; Deborah Collins; Elizabeth A. Garrick; Edna A. Bolton; Sonya Lynn Angell; Candy S. Dickinson; Shirley K. Frelix; Paula Henry; Sandra Mannon; Kathleen Shallow; Kimberly Veller; Juanema Ogle; Lillian Lewis; Tabitha A. Knight; Mary Pfeufer; Carmen Garcia; April Webster; Daphne M. Robinson; Desiree Lightfoot; Chassidy Hamilton; Frieda Scott-Butts; Araceli Reyes; Brenda Williams; Maria D. Gonzalez; Carlota Rzucek; Darlene R. Martin; Carolyn Sabo; Sherry L. Allison; Rebecca Tyler-Mills; Michele L. Wahl; Melinda J. Anderson, on Behalf of Themselves and Others Similarly Situated, Plaintiffs-Appellants, v. DOLLAR TREE STORES, INCORPORATED, Defendant-Appellee
- Cited By
- 36 cases
- Status
- Unpublished