United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION TO DISMISS
Marcia
S. Krieger Chief Judge
THIS
MATTER comes before the Court pursuant to the
Defendant's (“Schwab”) Motion to Dismiss
(# 13), Ms. Ley's response (#
16), and Schwab's reply (# 22);
and a motion docketed as Ms. Ley's Motion to Enforce a
Confession of Judgment (# 15) (which the
Court clarifies infra), Schwab's response
(# 23), and Ms. Ley's reply (#
24). Also pending is a motion by Schawb (#
14) seeking to stay proceedings in this case pending
the Court's ruling on Schwab's motion to dismiss.
In this
action, Ms. Ley asserts claims for sex discrimination in
violation of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e et seq., and age discrimination in
violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.
The dispute presently before the Court relates to the
timeliness of Ms. Ley's Complaint and the circumstances
surrounding its filing.
In an
attachment to her Complaint, titled “Motion to File Out
of Time” (# 2-6), Ms. Ley explains
that she was issued a Right To Sue letter by the EEOC on May
29, 2018. By operation of 42 U.S.C. § 2000e-5(f)(1), she
was required to initiate her action within 90 days thereafter
- i.e. on or before August 27, 2017. Ms. Ley
apparently did not retain her current counsel until August
24, 2017. Counsel prepared the Complaint and sought to file
it on the Court's electronic filing system at
approximately 11:30 p.m. on August 27, 2017, the last day on
which the action could be brought.[1] Due to unexplained
circumstances, Ms. Ley's counsel did not complete the
filing of the action until 12:08 a.m. on August 28, but no
Complaint was filed at that time. At 8:06 a.m. on August
28th, a representative from the Clerk's Office issued an
Administrative Notice (# 1) directing Ms.
Ley to file her Complaint and related documents within 24
hours. Ms. Ley filed the instant Complaint (#
2) at 9:30 a.m. that same day.
Schwab
moves (# 13) to dismiss Ms. Ley's claims
pursuant to Fed.R.Civ.P. 12(b)(6), arguing that the
initiation of the case (and filing of the Complaint) was
untimely and thus her claims are barred. Ms. Ley moved
(#15) to have the Court deem her Motion to
File Out of Time, attached to the Complaint, as
“confessed” because Schwab did not respond to it
within the time frames set by D.C. Colo. L. Civ. R. 7.1(d).
The
Court begins by summarily denying Ms. Ley's motion
seeking to deem her Motion to File Out of Time (the
“Motion”) as confessed. First, by filing the
Motion to File Out of Time as an attachment to the Complaint,
rather than as a separate document, Ms. Ley violated D.C.
Colo. L. Civ. R. 7.1(d), which requires that “A motion
shall be filed as a separate document.” Second, Ms.
Ley's Motion, by definition, violated D.C. Colo. L. Civ.
R. 7.1(a) which requires a motion to include a statement
reflecting the filer's attempts to confer with their
opponent before filing the motion. Ms. Ley's Motion
contains no such statement. Third, Ms. Ley's position -
that by operation of Local Rule 7.1(d), Schwab was required
to respond to the Motion within 21 days from its filing on
August 28, 2018 (that is, by September 18, 2017) - is
patently unreasonable insofar as Ms. Ley did not effect
service upon Schwab until September 14, 2018. Indeed, were
the Court to measure Schwab's response date from the date
it was served with the Complaint and the Motion, Schawb
timely filed its motion to dismiss that effectively
constitutes a response to Ms. Ley's Motion. Accordingly,
the Court denies Ms. Ley's request to deem her Motion
confessed.
The
Court then turns to Schwab's motion. The enforcement
provisions of Title VII, 42 U.S.C. § 2000e-5(f)(1),
provide that a party must commence an action within 90 days
of receipt of a Right to Sue Notice from the EEOC. An
identical provision governs Ms. Ley's claim under the
ADEA. 29 U.S.C. § 626(e). It appears to be undisputed
that Ms. Ley's Complaint was untimely filed, and
therefore her action is subject to dismissal unless she can
demonstrate that a legal doctrine that excuses the
untimeliness. See e.g. Guevara v. Best Western Stevens
Inn., Inc., 78 Fed.Appx. 703, 704 (10th Cir.
2003).
Ms. Ley
appears to rely upon the “excusable neglect”
standard found in Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380
(1993). Pioneer involved a bankruptcy case in which
a creditor sought relief from the late filing of a proof of
claim. The court considered the application of Rule
9006(b)(1) of the Federal Rules of Bankruptcy Procedure,
which permits bankruptcy courts to accept untimely filings if
the filer's failure to comply with deadlines “was
the result of excusable neglect.” Likening that rule to
Rule 6(b) of the Federal Rules of Civil Procedure, which also
permits a court to extend the time for an action required by
those rules if a party's failure to comply with a
deadline was the “result of excusable neglect, ”
the Supreme Court found that the “excusable
neglect” standard was one that could encompass
inadvertence by counsel and would not necessarily be limited
to circumstances beyond the control of a movant. 507 U.S. at
391-92. Pioneer suggests that, in applying an
“excusable neglect” standard like those set forth
in the rules, courts should consider several factors,
including: (i) the danger of prejudice to the non-movant,
(ii) the length of the delay and its potential impact on the
judicial proceedings, (iii) the reason for the delay,
including whether it was within the reasonable control of the
movant, and (iv) whether the movant acted in good faith.
Id. at 395.
But Ms.
Ley's reliance on Pioneer is misplaced. In that
case the deadline imposed was set by a rule, and the
issue was whether another rule allowed the deadline
to be extended. Here, the deadline is set by statute that
limits the filing of an action. Nothing in the Federal
Rules of Civil Procedure purports to authorize a court to
extend a statute of limitation or excuse a party's
untimely commencement of an action.
A
request to extend the time to bring an action limited by
statute or to excuse the lateness of an untimely-commenced
case is founded in the court's equitable power to toll
non-jurisdictional statutes of limitation. See Holland v.
Florida, 560 U.S. 631, 645 (2010). In Holland,
the Supreme Court considered the one-year statute of
limitation for the bringing of a habeas corpus
petition under 28 U.S.C. § 2244(d). Due to his
counsel's negligence, the petitioner filed his petition
several weeks after the limitation period had expired. Both
the trial and appeals court refused to equitably toll the
limitation period, with the 11th Circuit stating
that professional negligence does not constitute an
“extraordinary circumstance” permitting tolling.
The
Supreme Court's analysis in Holland is
instructive. For non-jurisdictional limitation periods, a
party seeking equitable tolling must show: (i) that the party
was diligently pursuing its rights, and (ii) that “some
extraordinary circumstance” prevented the party from
acting timely. 560 U.S. at 649. The Court rejected the
11th Circuit's rule that attorney negligence
can never constitute “extraordinary
circumstances.” Id. at 650-61. But it
suggested that the standard was nevertheless not a
particularly forgiving one. For example, it explained that
“a simple miscalculation that leads a lawyer to miss a
filing deadline does not warrant equitable tolling.”
Id. at 651-52.
The
Supreme Court further clarified that standard in
Menominee Indian Tribe v. U.S., 136 S.Ct. 750
(2016). There, the petitioner tribes failed to meet certain
statutory limitation periods for actions challenging contract
disputes with the federal government, due to the tribes'
mistaken belief that their claims were affected by another
pending class action. The tribes requested equitable tolling
of the limitation periods to allow the claims to proceed. The
trial courts refused such tolling, and the Court of Appeals
affirmed, requiring that, to show “extraordinary
circumstances, ” the tribes had to show “an
external obstacle to timely filing, i.e. that the
circumstances that caused a litigant's delay must have
been beyond its control.” 136 S.Ct. at 756. The Supreme
Court affirmed, explaining that the principles of
Holland “would make little sense if equitable
tolling were available when a litigant was responsible for
its own delay.” Id. (emphasis in
original). It went on to “reaffirm that the second
prong of the equitable tolling test is met only where the
circumstances that caused a litigant's delay are both
extraordinary and beyond its
control.”[2] Id. (emphasis in original).
Title
VII's limitation period is considered to be
non-jurisdictional, and thus is susceptible to equitable
tolling in proper circumstances. Biester v. Midwest
Health Servs., 77 F.3d 1264, 1267 (10th Cir.
1996). The Court notes that Ms. Bey did not obtain
representation of counsel until Aug. 24, three days before
her time for file a Complaint expired. No. explanation for
that delay is offered. However, the Court will assume,
without finding, that because Ms. Ley retained counsel prior
to the deadline for filing her action, she diligently pursued
her claims.
However,
Ms. Ley has not satisfied the second element, that her timely
filing was prevented by “extraordinary
circumstances” “beyond her control” as
contemplated by Menominee. Ms. Ley attributes her
delay to unspecified “technical difficulties”
that prevented her from completing the electronic filing of
the Complaint on August 27. Ms. Ley offers no explanation of
what these difficulties were other than the statement that
her counsel “ma[de] several attempts” ...