Opinion

Birch v. Peters

  • 25 F. App'x 122
Court
Court of Appeals for the Fourth Circuit
Filed
Dec 26, 2001
Status
Unpublished
On the bench
Wilkins, Motz, King
Cited by
9 cases
Authority
More cited than 56.1%

finding that state savings statute did not toll statute of limitations for plaintiff’s federal claim in federal court

How later courts described this case

  • finding that state savings statute did not toll statute of limitations for plaintiff’s federal claim in federal court
  • “Where [...] a plaintiff voluntary dismisses a lawsuit that was brought in federal * References to Title VII precedent for the purpose of the ADA are proper “[b]ecause the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose ... courts have routinely used Title VII precedent in ADA cases.” Fox v. GMC, 247 F.3d 169, 176 (4th Cir. 2001). court, asserted a purely federal claim, and was subject to a federal statute of limitations, state savings statutes do not apply.”
  • “A claimant who fails to file a complaint within the ninety-day statutory time period mandated by Title VII … generally forfeits her right to pursue her claims.” (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-51 (1984)
  • “A claimant who fails to file a complaint within the ninety-day statutory time period mandated by Title VII . . . and the ADEA . . . generally forfeits her right to pursue her claims.” (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-51 (1984))

Written by the judges who cited it.

The opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BETTY J. BIRCH, 

Plaintiff-Appellant,

v.

F. WHITTEN PETERS, Acting  No. 01-1878

Secretary of the Department of the

Air Force,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

W. Earl Britt, Senior District Judge.

(CA-01-54-7-BR)

Submitted: November 30, 2001

Decided: December 26, 2001

Before WILKINS, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Ernest J. Wright, WRIGHT LAW FIRM, Jacksonville, North Caro-

lina, for Appellant. John Stuart Bruce, United States Attorney, Anne

M. Hayes, Assistant United States Attorney, R. A. Renfer, Jr., Assis-

tant United States Attorney, Raleigh, North Carolina, for Appellee.

2 BIRCH v. PETERS

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

Betty J. Birch appeals the district court’s order granting the Appel-

lee’s motion and dismissing her employment discrimination action as

untimely. We have reviewed the joint appendix and briefs on appeal

and find no reversible error. Accordingly, we affirm the judgment of

the district court.

A claimant who fails to file a complaint within the ninety-day stat-

utory time period mandated by Title VII, 42 U.S.C. § 2000e-5(f)

(1994), and the ADEA, 29 U.S.C. § 626(e) (1994), generally forfeits

her right to pursue her claims. See Baldwin County Welcome Ctr. v.

Brown, 466 U.S. 147, 149-51 (1984). Relying on the North Carolina

Rules of Procedure, N.C.R. Civ. P. 41(a), Birch contends on appeal

that her voluntary dismissal of a previous suit tolled the statute of lim-

itations and permitted her one year from the date of dismissal to file

her current action.

Where, as here, the plaintiff voluntarily dismisses a lawsuit that

was brought in federal court, asserted a purely federal claim, and was

subject to a federal statute of limitations, state savings statutes do not

apply. See Beck v. Caterpillar Inc., 50 F.3d 405, 407 (7th Cir. 1995);

see also Brown v. Hartshorne Pub. Sch. Dist., 926 F.2d 959, 961

(10th Cir. 1991). Consequently, the statute of limitations was not

tolled, and the district court properly dismissed Birch’s action.

The district court’s judgment is hereby affirmed. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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