Salmon

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

CAROL ANN SALMON, )

)

Plaintiff, )

)

v. ) Case No. 5:25-cv-01133-HNJ

)

YORKTOWN SYSTEMS GROUP )

LLC, )

)

Defendant. )

MEMORANDUM OPINION

This case proceeds before the court on Defendant’s motion to dismiss. (Doc.

6). For the reasons set forth herein, the court WILL GRANT Defendant’s motion,

and it WILL DISMISS Plaintiff’s claims WITH PREJUDICE because Plaintiff failed

to timely file this action.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 8, governing pleading, calls for a short and plain

statement of a claim, which, if established, entitles the pleader to relief. See Dees v.

Lamar, No. 2:20-cv-1326-LSC-GMB, 2020 WL 13750276, at *2 (N.D. Ala. Nov. 30,

2020) (noting Rule 8(a)(1) requires a plaintiff to “give the defendant fair notice of what

the . . . claim is and the grounds upon which it rests”). Relatedly, Federal Rule of Civil

Procedure Rule 12(b)(6) permits a court to dismiss a complaint if it fails to state a claim

for which relief may be granted.

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court revisited the applicable

standard governing Rule 12(b)(6) motions to dismiss. First, courts must take note of

the elements a plaintiff must plead to state the applicable claims at issue. Id. at 675.

After establishing the elements of the claim at issue, the court identifies all well-

pleaded, non-conclusory factual allegations in the complaint and assumes their veracity.

Id. at 679. Well-pleaded factual allegations do not encompass mere “labels and

conclusions,” legal conclusions, conclusory statements, or formulaic recitations and

threadbare recitals of the elements of a cause of action. Id. at 678 (citations omitted).

In evaluating the sufficiency of a plaintiff’s pleadings, the court may draw reasonable

inferences in the plaintiff’s favor. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d

1242, 1248 (11th Cir. 2005).

Third, a court assesses the complaint’s well-pleaded allegations to determine if

they state a plausible cause of action based upon the identified claim’s elements. Iqbal,

556 U.S. at 678. Plausibility ensues “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged,” and the analysis involves a context-specific task requiring a court

“to draw on its judicial experience and common sense.” Id. at 678, 679 (citations

omitted). The plausibility standard does not equate to a “probability requirement,” yet

it requires more than a “mere possibility of misconduct” or factual statements that are

“merely consistent with a defendant’s liability.” Id. (citations omitted).

2

While the court should extend pro se complaints some measure of leniency, see

Trawinski v. United Technologies, 313 F.3d 1295, 1297 (11th Cir. 2002), “nothing in that

leniency would excuse a plaintiff from compliance with threshold requirements of the

Federal Rules of Civil Procedure.” Johnson v. Mobile County Sheriff Dept., No. 06-0821-

WS-B, 2007 WL 2023488, at *3 (S.D. Ala. July 9, 2007) (citing Loren v. Sasser, 309 F.3d

1296, 1304 (11th Cir. 2002) (“Despite construction leniency afforded pro se litigants, we

nevertheless have required them to conform to procedural rules.”)); Moon v. Newsome,

863 F.2d 835, 837 (11th Cir. 1989) (a pro se litigant “is subject to the relevant law and

rules of court including the Federal Rules of Civil Procedure”)).

BACKGROUND

On September 20, 2023, Plaintiff Carol Ann Salmon filed a charge of

discrimination with the Equal Employment Opportunity Commission (EEOC). (Doc.

1, at 6, 13). She alleged her employer former, Yorktown Systems Group (“Yorktown”),

retaliated against her and discriminated against her on the basis of sex. (Id. at 13). She

stated:

Adverse actions including termination on 27 March 2023 were

taken against me as Command Language Program Coordinator (CLPC)

for communicating with the Government Customer. During a Teams

meeting a couple months earlier, when he described communicating with

the same Government Customer, a male CLPC was not terminated.

According to an email I received 5 May 2023, CLPCs are expected and

directed to communicate with the Government Customer.

(Id). On June 13, 2024, Salmon received a Determination and Notice of Rights letter

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from the EEOC, informing her of her right to file a federal lawsuit within 90 days. (Id.

at 6, 14).

On September 6, 2024, within the 90-day period, Salmon filed a pro se Complaint

against Yorktown in the United States District Court for the Middle District of North

Carolina. (Doc. 6-1, at 2).1 As recounted in a decision issued by the MDNC court,

Salmon alleged gender discrimination pursuant to Title VII of the Civil Rights Act of

1964. (Doc. 6-2, at 2). The court briefly recited Salmon’s factual allegations as follows:

Plaintiff alleges that her employer, Defendant Yorktown, discriminated

against her based on her gender. . . . First, she alleges that she was subject

to disciplinary action based on gender. . . . Second, she alleges that she

was wrongfully terminated based on her gender. . . . Third, she alleges

that she was subject to “gender-targeted gaslighting” by her employer. . .

.

Plaintiff also alleges employer misconduct unrelated to her gender.

She alleges that her employers removed certain information from email

messages they forwarded to her, . . . and that her employer “failed to

inform the Government for over a month that they terminated [her] . . . .

1 Normally, the court may not consider matters outside the pleadings without converting a motion to

dismiss into a motion for summary judgment and providing the parties an opportunity to submit

pertinent material. Fed. R. Civ. P. 12(d). “However, ‘[t]here are two exceptions to th[e] conversion

rule: (1) the incorporation-by-reference doctrine and (2) judicial notice.’” Johnson v. City of Atlanta, 107

F.4th 1292, 1298 (11th Cir. 2024) (alteration in original) (quoting Baker v. City of Madison, Alabama, 67

F.4th 1268, 1276 (11th Cir. 2023)). “[A] court may properly consider a document not referred to or

attached to a complaint under the incorporation-by-reference doctrine if the document is (1) central

to the plaintiff’s claims; and (2) undisputed, meaning that its authenticity is not challenged.” Id. at

1300. Here, no party has challenged the authenticity of the pleadings from the Middle District of

North Carolina action, and the documents centrally relate to Salmon’s claims. In addition, the court

may take judicial notice of the Middle District of North Carolina pleadings as public records. See

Universal Express, Inc. v. U.S. S.E.C., 177 F. App’x 52, 53 (11th Cir. 2006) (“Public records are among

the permissible facts that a district court may consider.”).

4

(Id. at 3 (alteration in original)).

On December 17, 2024, Yorktown moved to dismiss Salmon’s Complaint for

lack of personal jurisdiction and improper venue or, alternatively, to transfer venue.

(Doc. 6-1, at 4; Doc. 6-2, at 2). On June 18, 2025, the MDNC court granted the motion

and dismissed the case without prejudice. (Doc. 6-1, at 5; Doc. 6-2). The court

determined the Middle District of North Carolina lacked jurisdiction over Yorktown, a

Delaware corporation with its corporate headquarters and principal place of business

in Huntsville, Alabama. (Doc. 6-2, at 3-11). The court also noted: “Plaintiff filed a

stipulation consenting to transfer. This court has declined to adopt that stipulation for

two reasons. First, without personal jurisdiction over Defendant, that order is at best

problematic. Second, this court does not have authority to order Defendant to

reimburse expenses to Plaintiff.” (Id. at 10 n.4).

Yorktown later filed a complete copy of Salmon’s stipulation, further elucidating

its significance. It reads:

PLAINTIFF’S CONSENT WITH STIPULATION(S) TO

DEFENDANT [sic] MOTION FOR VENUE TRANSFER

Plaintiff Carol Ann Salmon (“Plaintiff” or “Ms. Salmon”) files this

Consent to Defendant’s Motion for Venue Transfer, but with

stipulation(s) that Defendant cover any and all additional costs Plaintiff

may incur as a result. As grounds, Ms. Salmon submits as follows:

1. To Plaintiff’s knowledge, after Venue Transfer, Pro Se filings

would need to be in person at:

U.S. District Court

5

Northern District of Alabama

660 Gallatin Street, SW

Huntsville, AL 35801

2. Huntsville, AL is 506 miles and an 8 hour drive from

Greensboro, NC, where Plaintiff resides. A round trip drive, plus time

needed to visit Court offices, cannot be reasonably or safely completed on

one day.

3. If Venue Transfer is granted, then it is reasonable for Defendant

to reimburse Plaintiff at the regular Government Per Diem, lodging and

mileage rates for any case-related travel, in addition to the original Relief

requested.

4. If Venue Transfer is granted, then it is reasonable for Defendant

to reimburse Plaintiff for attorney-related costs, if Plaintiff finds an

Alabama-licensed attorney to represent her, in addition to the original

Relief specified.

Based on the foregoing, Plaintiff consents to Venue Transfer with

the stipulation(s) above. Plaintiff continues to believe Justice is served by

the original Relief specified for Plaintiff totaling $40,347.58, plus any

additional case-related costs Plaintiff may incur due to Venue Transfer.

(Doc. 14-1, at 2).2

On July 14, 2025, Salmon filed the instant, pro se Complaint against Yorktown in

this court. (Doc. 1). She alleges Yorktown, on the basis of gender, terminated her

employment, subjected her to unequal terms and conditions of employment, retaliated

against her, and subjected her to “adverse discussion and memorandum.” (Id. at 4-5).

2 On September 30, 2025, after filing this action, Salmon stated that she now has “learned that [she]

can file documents using the US Postal Services (USPS). And it appears a status check planned for

October 6, 2025 can be completed on-line.” (Doc. 15, at 1).

6

She further avers Yorktown engaged in a “pattern of adverse action toward female, but

not male, employees in equivalent situations.” (Id. at 5).

As a factual basis for her claim, Salmon alleges that on March 22, 2023, Yorktown

subjected her to a “Performance Discussion” and asked her to sign a “punitive

Memorandum” wrongly criticizing her communication with an “individual(s) with

whom [she] was expected and directed to communicate.” (Id. at 8). On March 27,

2023, Yorktown terminated Salmon’s employment, effective immediately. Salmon

asked Yorktown to pay some of her living expenses, but Yorktown declined. (Id. at 8-

9).

Salmon alleges Yorktown and, specifically, Program Manager Yakub Yusufoff,

gaslighted her and discriminated against her because of her gender. In late 2022, a male

employee communicated with the same person Yorktown punished Salmon for

communicating with, yet the male employee retained his employment. Moreover, the

male employee possessed a less suitable background for the position than Salmon. (Id.

at 9).

Salmon disputes she wrongfully corresponded with the individual Yorktown

punished her for contacting; she asserts performance of her job duties required the

correspondence seeking clarification about a prior communication, and she suggests

someone else may have forwarded her correspondence to the pertinent individual.

(Doc. 1, at 10). Salmon also contests Yorktown’s argument that it received complaints

7

about her misconduct and poor performance, and she surmises Yorktown must have

attempted to avoid including positive information in her personnel file as well as

conceal how Yusufoff’s actions interfered with mission objectives. (Id).

Salmon alleges Yusufoff and Chris Hardy, another Yorktown employee,

“removed email header information from messages that they forwarded to” Salmon.

(Id. at 9). Finally, she alleges Yorktown did not inform the government client of her

termination for over a month. (Id. at 11).

As compensation, Salmon requests $4,647.58 for living expenses resulting from

the allegedly premature termination of her employment, and $35,700 in regular pay she

would have received between April 1 and November 1, 2023. (Id. at 6).

The allegations of Salmon’s Complaint in this action mostly mirror those of her

Complaint in the Middle District of North Carolina.

DISCUSSION

Yorktown seeks dismissal of Salmon’s Title VII claims because she did not file

this case within 90 days of receiving notice from the EEOC of her right to sue.

An employee must exhaust administrative remedies before filing a

complaint of discrimination under Title VII of the Civil Rights Act . . .

. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (Title VII)

. . . . “The first step down th[e] path [to exhaustion] is filing a timely

charge of discrimination with the [Equal Employment Opportunity

Commission (EEOC)].” Wilkerson, 270 F.3d at 1317. If the Commission

determines after an investigation “that there is not reasonable cause to

believe that the charge is true, it shall dismiss the charge and promptly

notify” the employee. 42 U.S.C. § 2000e-5(b). When the employee

8

receives a notice of dismissal from the Commission, she has 90 days to

file a civil action against the employer. Id. § 2000e-5(f)(1).

Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336, 1339-40 (11th Cir. 2017) (first and second

alterations in original); see also Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir.

2000) (citing Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1339-41 (11th Cir. 1999)

(“Title VII . . . actions may not be brought more than 90 days after a complainant has

adequate notice that the EEOC has dismissed the Charge.”)).

Salmon received the EEOC’s Determination and Notice of Rights letter on June

13, 2024. (Doc. 1, at 6). She filed this action on July 14, 2025, more than a year later.

Ordinarily, that delay would present a time bar to Salmon’s claim. However, the court

must consider whether Salmon’s September 6, 2024, filing of a Complaint against

Yorktown in the United States District Court for the Middle District of North Carolina

tolled the limitations period.3

The doctrine of equitable tolling applies to the 90-day deadline for filing a lawsuit

after receiving a notice of right to sue from the EEOC. See Mesidor v. Waste Mgmt., Inc.

of Fla., 606 F. App’x 934, 936 (11th Cir. 2015) (per curiam) (citing Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 95-96 (1990) (“Title VII’s ninety-day filing requirement is subject

3 Yorktown preemptively argued against the doctrine of equitable tolling in its motion to dismiss.

(Doc. 6, at 5 (“The doctrine of equitable tolling does not save Ms. Salmon’s case.’)). Salmon also

raised a tolling argument in her response to the motion to dismiss, though she did not employ that

exact terminology. (Doc. 13, at 2-3). As discussed, the court must liberally construe pro se filings.

See, e.g., Trawinski v. United Technologies, 313 F.3d 1295, 1297 (11th Cir. 2002).

9

to equitable tolling.”)); see also Jones v. Wynne, 266 F. App’x 903, 905 (11th Cir. 2008) (per

curiam) (citing Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1525-26 (11th Cir.

1983) (“We view filing within the 90 day period as a condition precedent subject to

equitable tolling or waiver, rather than as a jurisdictional bar.”)).

“The doctrine of equitable tolling allows a court to toll the statute of

limitations until such a time that the court determines would have been

fair for the statute of limitations to begin running on the plaintiff’s claims.”

Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006). “Equitable tolling ‘is

an extraordinary remedy which should be extended only sparingly.’” Bost

v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004) (quoting Justice v.

United States, 6 F.3d 1474, 1479 (11th Cir. 1993)). Thus, “[e]quitable tolling

is appropriate when a movant untimely files because of extraordinary

circumstances that are both beyond his control and unavoidable even with

diligence.” Arce, 434 F.3d at 1261 (emphasis in original) (quoting Sandvik

v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)); see also Motta ex rel.

A.M. v. United States, 717 F.3d 840, 846-47 (11th Cir. 2013) (holding that

equitable tolling “cannot be applied to this FTCA claim because the

untimely filing could have been avoided with due diligence”). The plaintiff

has the burden of proving that such extraordinary circumstances exist.

Arce, 434 F.3d at 1261; accord Bost, 372 F.3d at 1242; see also Diaz v. Sec’y for

Dep’t of Corr., 362 F.3d 698, 701 (11th Cir. 2004) (noting the “difficult

burden” of demonstrating entitlement to equitable tolling). As to the

diligence inquiry, we have stated that “[t]he diligence required for

equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible

diligence.’” San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011)

(quoting Holland v. Florida, 560 U.S. 631, 653, 130 S. Ct. 2549, 177 L. Ed.

2d 130 (2010)). “But the principles of equitable tolling . . . do not extend

to . . . a garden variety claim of excusable neglect.” Irwin v. Dep’t of Veterans

Affs., 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990); accord Motta,

717 F.3d at 846-47; Justice, 6 F.3d at 1480.

Dotson v. United States, 30 F.4th 1259, 1268-69 (11th Cir. 2022) (alterations in original).

Generally, “[d]ismissal of a complaint, without prejudice, does not allow a later

10

complaint to be filed outside the statute of limitations.” Bost, 372 F.3d at 1242 (citing

Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982)); see also Justice, 6 F.3d at 1478

(quoting Stein, 667 F.2d at 34 (“‘The fact that dismissal of an earlier suit was without

prejudice . . . does not authorize a subsequent suit brought outside of the otherwise

binding period of limitations.’”)). Even so, the doctrine of equitable tolling may extend

the limitations period based upon a previous timely filing, if “plaintiffs . . . establish that

tolling is warranted.” Bost, 372 F.3d at 1242 (citing Justice, 6 F.3d at 1479); cf. Foudy v.

Indian River Cnty. Sheriff’s Off., 845 F.3d 1117, 1126 (11th Cir. 2017) (citing Justice, 6 F.3d

at 1479-80 (emphasis supplied) (“The statute of limitations is not automatically tolled

in such a situation, absent some additional reason.”)).

Salmon’s pro se status does not automatically warrant equitable tolling. See Bray v.

Bank of Am., N.A., 763 F. App’x 808, 811 (11th Cir. 2019) (citing Jackson v. Astrue, 506

F.3d 1349, 1356 (11th Cir. 2007); Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 969-70 (11th

Cir. 1997) (“Neither Bray’s pro se status nor his ignorance of the law, by itself, provides

a basis for equitable tolling.”)); Christides v. Comm’r of Soc. Sec., 478 F. App’x 581, 584

(11th Cir. 2012) (same).4

Salmon has not presented any rationale or evidence regarding the equitable

4 In addition to the cited authority directly addressing a litigant’s pro se status as a justification for

applying equitable tolling, the Eleventh Circuit has issued other unpublished opinions declining to

apply equitable tolling under similar circumstances to cases involving pro se litigants. See Williams v.

Georgia Dep’t of Def. Nat. Guard Headquarters, 147 F. App’x 134, 136 (11th Cir. 2005); Weldon v. Elec. Data

Sys. Corp., 138 F. App’x 136, 138 (11th Cir. 2005).

11

tolling doctrine. On the record at bar, her best entreaty under the doctrine would

emanate from the MDNC court’s decision to dismiss her case rather than transfer it to

this district, yet she still would not be able to demonstrate equitable tolling due to the

lack of diligence vis-à-vis challenging the dismissal.

Pursuant to statutory authority:

Whenever a civil action is filed in a court as defined in section 610

of this title or an appeal, including a petition for review of administrative

action, is noticed for or filed with such a court and that court finds that

there is a want of jurisdiction, the court shall, if it is in the interest of justice,

transfer such action or appeal to any other such court (or, for cases within

the jurisdiction of the United States Tax Court, to that court) in which the

action or appeal could have been brought at the time it was filed or

noticed, and the action or appeal shall proceed as if it had been filed in or

noticed for the court to which it is transferred on the date upon which it

was actually filed in or noticed for the court from which it is transferred.

28 U.S.C. § 1631 (emphasis added).

As a plethora of decisions establish, courts should transfer cases over which they

lack jurisdiction if dismissal would preclude consideration of the merits due to statute-

of-limitations problem. See Boyer v. Wilkie, No. 2:19-CV-00552-JEO, 2020 WL 733181,

at *1 (N.D. Ala. Feb. 13, 2020) (transferring case in the interest of justice, rather than

dismissing, when the statute of limitations had likely run, and the plaintiff had not acted

in bad faith); Snow v. Gen. Elec. Co., No. 7:17-CV-01961-LSC, 2018 WL 3719849, at *6

(N.D. Ala. Aug. 3, 2018) (interest of justice warranted transfer pursuant to § 1631 when

statute of limitations had run on plaintiff’s claim); Clanton v. Bohannon, No. CV-07-BE-

12

1942-M, 2008 WL 11336752, at *2 (N.D. Ala. Mar. 27, 2008) (“The lack of jurisdiction

precludes this court’s power to adjudicate the case but does not prevent the court from

transferring the case under Section 1631.” (citing ITT Base Servs. v. Hickson, 155 F.3d

1272, 1276 (11th Cir. 1998); Slatick v. Dep’t of Labor, 698 F.2d 433, 434 (11th Cir. 1983))).

Brown v. Ford Motor Co., 347 F. Supp. 3d 1347, 1351 (N.D. Ga. 2018) (ruling that even

if § 1631 permitted a transfer, it was not within the interest of justice to do so in part

because “there ha[d] been no argument that transfer would prevent an issue regarding

the statute of limitations”); c.f., Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 430 n.7 (1965)

(“Numerous cases hold that when dismissal of an action for improper venue would

terminate rights without a hearing on the merits because [the] plaintiff’s action would

be barred by a statute of limitations, the interest of justice requires that the cause be

transferred.” (internal quotation marks omitted)), cited in, Wright v. Waste Pro USA, Inc.,

69 F.4th 1332, 1341 (11th Cir. 2023); Robertson v. Northcutt, 850 F.2d 690 (4th Cir. 1988)

(“A majority of federal courts have recognized that it is in the interest of justice to

transfer a case rather than dismiss when refiling in the proper court would be barred by

the applicable statute of limitations.”) (citations omitted); Crowe v. Paragon Relocation Res.,

Inc., 506 F. Supp. 2d 1113, 1126 (N.D. Fla. 2007) (“The interest of justice requires transfer

of this case as opposed to dismissal because a dismissal would likely result in Crowe

being barred from later refiling his action in a court of proper jurisdiction due to the

statutory ninety-day filing period under Title VII.”) (emphasis added) (citation omitted);

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Dumas v. Mohawk Field Servs., Inc., No. CV 23-3251, 2023 WL 7329113, at *2 (E.D. La.

Nov. 7, 2023) (“Dismissing Plaintiffs’ complaint at this point would effectively be a

dismissal with prejudice of her Title VII claim as the 90-day period within which to file

suit after receipt of the EEOC Notice of a Right to Sue would have expired. In that

situation, courts typically employ [28 U.S.C.] § 1406(a) transfers to protect the plaintiff

against a procedural bar to refiling her claim.” (citing, inter alia, Aguacate Consol. Mines,

Inc. v. Deeprock, Inc., 566 F.2d 523, 524-25 (5th Cir. 1978) (finding transfer of case to

advance “the interest of justice and procedural simplification underlying 28 U.S.C. §

1406(a) where part of plaintiff’s claim was potentially barred by statute of limitations”);

Koehring Co. v. Hyde Const. Co., 324 F.2d 295, 297 (5th Cir. 1963) (recognizing that “the

interest of justice” may require a transfer under § 1406(a) to avoid penalizing a plaintiff

with “time-consuming and justice-defeating technicalities,” in that case, a statute of

limitations bar))) (footnotes omitted); Jennings-Jones v. Sylacauga Health Care Auth., No.

2:23-CV-574-MHT-JTA, 2023 WL 8794607, at *2 (M.D. Ala. Oct. 25, 2023) (finding

transfer of Title VII action preferable in the interest of justice because dismissal for

improper venue would likely have prevented plaintiff from refiling in the proper venue

due to expiration of the 90-day filing period), report and recommendation adopted, No. 2:23-

CV-574-MHT, 2023 WL 8794564 (M.D. Ala. Dec. 19, 2023).5

5 Although § 1631 – along with the § 1406 venue statute – provide a court shall transfer a case in the

interest of justice when it lacks appropriate authority to adjudicate a case, and some decisions “require”

such transfer when a limitations period has expired, most of the cases cited couch a court’s transfer

14

Several Circuit Courts of Appeal have explicitly held that § 1631 extends to

dismissals for lack of personal jurisdiction as well as dismissals for lack of subject matter

jurisdiction. See North v. Ubiquity, Inc., 72 F.4th 221, 227 (7th Cir. 2023) (“[E]very circuit

court to address this issue has agreed that § 1631’s reference to ‘jurisdiction’

encompasses personal jurisdiction as well as subject matter jurisdiction.”); Franco v. Mabe

Trucking Co., Inc., 3 F.4th 788, 795 (5th Cir. 2021) (“[T]he use of the term ‘jurisdiction’

in § 1631 encompasses both subject-matter and personal jurisdiction. The statute

therefore requires a transfer when a district court lacks either type of jurisdiction and

the other statutory prerequisites are met.”); Fed. Home Loan Bank of Bos. v. Moody’s Corp.,

821 F.3d 102, 114 (1st Cir. 2016), abrogated on other grounds by Lightfoot v. Cendant Mortg.

power as permissive, not mandatory. Thus, the resort to the term “shall” in the statutes appears to

represent occasions “when drafters have used the word improperly,” reflecting “widely diverse” and

“variegated meanings.” Antonin Scalia and Bryan A. Garner, READING LAW: THE INTERPRETATION

OF LEGAL TEXTS 112, 113 (2012); see also De Martinez v. Lamagno, 515 U.S. 417, 434 n.9 (1995)

(“Though ‘shall’ generally means ‘must,’ legal writers sometimes use, or misuse, ‘shall’ to mean

‘should,’ ‘will,’ or even ‘may.’ . . . For example, certain of the Federal Rules use the word ‘shall’ to

authorize, but not to require, judicial action. See, e.g., Fed. Rule Civ. Proc. 16(e) (“The order following

a final pretrial conference shall be modified only to prevent manifest injustice.”) (emphasis added);

Fed. Rule Crim. Proc. 11(b) (A nolo contendere plea “shall be accepted by the court only after due

consideration of the views of the parties and the interest of the public in the effective administration

of justice.” (emphasis added) (citing D. Mellinkoff, MELLINKOFF’S DICTIONARY OF AMERICAN LEGAL

USAGE 402-03 (1992) (‘shall’ and ‘may’ are ‘frequently treated as synonyms’ and their meaning depends

on context); B. Garner, DICTIONARY OF MODERN LEGAL USAGE 939 (2d ed. 1995) (“[C]ourts in

virtually every English-speaking jurisdiction have held – by necessity – that shall means may in some

contexts, and vice versa.”)); 15 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL

PRACTICE & PROCEDURE § 3842 (4th ed.) (“Though [§ 1631] says a court ‘shall’ transfer, that phrase is

modified by ‘if it is in the interest of justice.’ The latter phrase gives the court discretion to transfer

or to dismiss without prejudice. As the Supreme Court explained, Section 1631 gives a court ‘authority

to make a single decision upon concluding that it lacks jurisdiction – whether to dismiss the case or,

‘in the interest of justice’ to transfer it to a court * * * that has jurisdiction.’” (quoting Christianson v.

Colt Industries Operating Corp., 486 U.S. 800, 818, (1988))) (footnote omitted).

15

Corp., 580 U.S. 82 (2017) (“[W]e conclude that ‘want of jurisdiction’ encompasses both

personal and subject matter jurisdiction. It follows that § 1631’s plain text supports a

finding that its reference to ‘want of jurisdiction’ embraces both types of jurisdiction

and permits a federal court to order transfer where it lacks either.”); Roman v. Ashcroft,

340 F.3d 314, 328 (6th Cir. 2003) (“In light of the language of § 1631 and its purpose,

we therefore conclude that the statute applies to federal courts identifying any

jurisdictional defect, regardless of whether it involves personal or subject matter

jurisdiction.”).

Other Circuits, including the Eleventh Circuit, have more indirectly endorsed

extending the coverage of § 1631 to defects of both personal and subject matter

jurisdiction. See Okongwu v. Reno, 229 F.3d 1327, 1331 n.3 (11th Cir. 2000) (stating

“[n]othing in this opinion should be construed to prohibit transfer to cure lack of

jurisdiction pursuant to 28 U.S.C. § 1631” after remanding case to district court to assess

whether personal jurisdiction existed); Johnson v. Woodcock, 444 F.3d 953, 954 n.2 (8th

Cir. 2006) (explaining district court could have transferred action under § 1631 to cure

lack of personal jurisdiction); Island Insteel Sys., Inc. v. Waters, 296 F.3d 200, 218 n.9 (3d

Cir. 2002) (explaining district court would have had authority to transfer action under

§ 1631 after finding it lacked personal jurisdiction); Gray & Co. v. Firstenberg Mach. Co.,

913 F.2d 758, 761-62 (9th Cir. 1990) (vacating and remanding to district court to

consider transfer under § 1631 to cure lack of personal jurisdiction); Ross v. Colorado

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Outward Bound Sch., Inc., 822 F.2d 1524, 1527-28 (10th Cir. 1987) (reviewing case that was

transferred under § 1631 to Colorado district court after New York district court found

it lacked personal jurisdiction).6

Hence, transferring Salmon’s North Carolina case to this court, or to any other

court with personal jurisdiction over Yorktown, would have served the interest of

justice by allowing Salmon to pursue her claims on the merits. Nevertheless, Salmon

failed to pursue available legal remedies to address any error by the MDNC court. It

does not appear Salmon requested reconsideration of the decision or relief from the

judgment under Federal Rule of Civil Procedure 60(b), nor did she appeal the decision

to the Fourth Circuit Court of Appeals. This lack of diligence precludes relief under

the equitable tolling doctrine.

Most poignantly, the Eleventh Circuit maintains that a plaintiff’s failure to pursue

6 The court notes one learned treatise advocates limiting § 1631’s reach to subject matter jurisdiction

only. See id. (“The better view is that Section 1631 is limited to subject matter jurisdiction defects and

does not address problems with personal jurisdiction or venue.”). Even so, the authors of the treatise

recognize the “majority opinion has swung to the conclusion that 28 U.S.C.A. § 1631 applies to allow

transfer to cure lack of subject matter jurisdiction, personal jurisdiction, or both.” Id. This court finds

that majority trend more persuasive. See 16 MOORE’S FEDERAL PRACTICE - CIVIL § 108.143 (2026)

(“A First Circuit opinion, issued in 2016, makes a persuasive case . . . . After noting the opposing

interpretations of the Section 1631 legislative history offered by the parties, the court turned to the

text of the statute itself. Section 1631 speaks in terms of ‘jurisdiction’ and ‘want of jurisdiction’ without

differentiating between the two ‘well-known jurisdictional flavors.’ Given that Congress is well-able

to distinguish between subject matter and personal jurisdiction, and given the phrase ‘want of

jurisdiction’ has an established meaning including both types, the court concluded that the

unambiguous text of the statute encompasses both types of jurisdiction.” (citing Federal Home Loan

Bank of Boston v. Moody’s Corp., 821 F.3d 102, 113-115 (1st Cir. 2016), abrogated on other grounds by Lightfoot

v. Cendant Mortg. Corp., 580 U.S. 82 (2017)).

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available legal remedies prevented the plaintiff from invoking the doctrine of equitable

tolling to extend a statutory limitations period. In Wright v. Waste Pro USA, Inc., 69 F.4th

1332 (11th Cir. 2023),

Anthony Wright sued his former employer for allegedly underpaying him

for overtime hours. Wright worked in Florida, but he sued Waste Pro

USA, Inc., and its subsidiary, Waste Pro of Florida, Inc., as one of several

named plaintiffs in a purported collective action in the District of South

Carolina. That court dismissed Wright’s claims against Waste Pro USA

and Waste Pro of Florida for lack of personal jurisdiction, and it denied

as moot his motion to sever his claims and transfer them to a district court

in Florida. Instead of appealing or seeking other relief in the South

Carolina court, Wright filed a complaint in the Southern District of

Florida, alleging the same claims.

Id. at 1335. The Eleventh Circuit upheld the district court’s grant of summary judgment

in the defendants’ favor due to expiration of the statute of limitations. Id.

Wright argued that his filing of the South Carolina action equitably tolled the

statute of limitations, yet the Eleventh Circuit declined to apply the “extraordinary

remedy” of equitable tolling to Wright’s circumstances, reasoning that “‘[e]quity’s reach

is quite modest when adequate legal remedies are available.’” Id. at 1340 (quoting Justice,

6 F.3d at 1479). Wright possessed, but did not avail himself of, legal remedies to

challenge the dismissal of the South Carolina action. He “could have filed a protective

action in Florida” or “a motion for reconsideration of or for relief from the dismissal

order and argued that the transfer was in the interests of justice,” or he could have

“appealed the dismissal.” Id. at 1341 (citations omitted). As “[a] diligent plaintiff”

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would have taken one of those actions, the Court deemed any irreparable harm Wright

suffered from expiration of the limitations period “‘the consequence of his own failure

to pursue his remedies at law.’” Id. (quoting Justice, 6 F.3d at 1482). “‘Equity will not

intervene in such circumstances.’” Wright, 69 F. 4th at 1341 (quoting Justice, 6 F.3d at

1482).

The court observes that counsel represented Wright, while Salmon proceeds pro

se. Even so, as previously discussed, courts express reluctance to equitably toll a statue

of limitations simply because a plaintiff proceeds pro se. See Bray, 763 F. App’x at 811;

Jackson, 506 F.3d at 1356; Wakefield, 131 F.3d at 969-70; Christides, 478 F. App’x at 584.

Moreover, the Eleventh Circuit has affirmed a district court decision declining to extend

the equitable remedy of tolling to a pro se plaintiff who did not pursue available legal

remedies.

In Myers v. Clayton Cnty. Bd. of Commissioners, No. 1:20-CV-5186-CAP, 2021 WL

3485293 (N.D. Ga. July 22, 2021), aff’d, No. 21-12636, 2022 WL 2463102 (11th Cir. July

6, 2022), Myers, who proceeded pro se, filed a complaint in the United States District

Court for the Northern District of Georgia on March 4, 2020, asserting Title VII,

ADEA, § 1983, and § 1981 claims against her former employer. Id. at *1. The district

court dismissed that case without prejudice on November 24, 2020, due to Myers’s

failure to comply with the magistrate judge’s instructions to file an amended complaint.

Id. Myers filed another complaint in the same court on December 22, 2020, asserting

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the same causes of action against the same defendants. However, she faced a timeliness

bar, as the statute of limitations had expired on September 17, 2020, at the latest. Id.

The district court declined to equitably toll the limitations period, as “Myers could have

taken other steps to preserve her cause of action after the dismissal of her first case

without prejudice,” including filing a motion for reconsideration, moving for relief from

the judgment, and appealing. Id. at *2 (citing Justice, 6 F.3d at 1480-81).7 The district

court did not afford any special provision for Myers’s pro se status. And, as noted, the

Eleventh Circuit affirmed the district court’s decision, although it did so because Myers

abandoned the issue on appeal by not raising it in her brief. Myers, 2022 WL 2463102,

at *2.

Thus, even though the MDNC court may have transferred Salmon’s Complaint

to this district to forestall the limitations period issue, Salmon’s failure to legally

challenge that error prevents her from invoking the doctrine of equitable tolling. If

Salmon cannot invoke equitable tolling to extend the statutory filing period, this court

must conclude she untimely filed this case.8

7 Though Myers v. Clayton Cnty. Bd. of Commissioners, No. 1:20-CV-5186-CAP, 2021 WL 3485293 (N.D.

Ga. July 22, 2021), aff’d, No. 21-12636, 2022 WL 2463102 (11th Cir. July 6, 2022), predated Wright v.

Waste Pro USA, Inc., 69 F.4th 1332 (11th Cir. 2023), the district court in Myers relied upon the Eleventh

Circuit’s decision in Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993), upon which the Eleventh

Circuit relied in Wright.

8 Because the time bar precludes Salmon’s claims, the court need not address Yorktown’s alternative

argument that Salmon failed to state a claim upon which the court can grant relief.

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In addition to equitable tolling, Salmon asserts a statutory tolling argument based

upon 28 U.S.C. § 1367.9 Subsection (a) of that statute grants district courts

“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 III of the United States Constitution.” 28 U.S.C. § 1367(a). Pursuant to

subsection (d):

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.

28 U.S.C. § 1367(d).

Both Salmon’s Middle District of North Carolina Complaint and her Complaint

in this court assert solely federal statutory claims. She did not rely upon § 1367 to

extend supplemental jurisdiction to any state law claims. Accordingly, the 30-day filing

period in § 1367(d) does not apply in these circumstances, regardless of the MDNC’s

dismissal of her Complaint without prejudice.

As no basis exists for either equitable or statutory tolling, the court must

conclude Salmon untimely filed her claims in this case.

9 On July 9, 2025, less than 30 days after the Middle District of North Carolina dismissed her case on

June 18, 2025, Salmon sent a letter to the Clerk of this court to file her Complaint in this action. She

stated that “[a] 28 U.S.C. § 1367(d) 30-day re-filing window appears to apply in this case.” (Doc. 1, at

17).

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CONCLUSION

In accordance with the foregoing, the court WILL GRANT Yorktown’s motion

to dismiss, and it WILL DISMISS all of Salmon’s claims WITH PREJUDICE. The

court will enter a separate final judgment.

DONE this 6" day of Match, 2026.

Ht N. JOHNSON. IR.

UNITED STATES MAGISTRATE JUDGE

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