Petition for Writ of Certiorari — Bynam v. Intermet Machining

Supreme Court, U.S.

FILED

04 300 AUG 28 2004

NO.: OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

RICKY LEE BYNAM,

PETITIONER

V.

INTERMET MACHINING.,

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

CASE NO. 03-15051-JJ

PETITION FOR A WRIT OF CERTIORARI

PETER A. DUMBUYA

Counsel of Record

P. O. BOX 3302

PHENIX CITY, ALABAMA 36867

(706) 289-5082

DANA P. GENTRY

Counsel of Record

1507 BROAD STREET

PHENIX CITY, ALABAMA 36867

(334) 297-5640

i

QUESTIONS PRESENTED

On September 24, 2001, Petitioner, pro se, filed suit

against Respondent, Intermet Machining, seeking damages for

wrongful termination from employment because of his race

(African American) and disability in violation of Title VII of

the Civil Rights Act of 1964 and the Americans With

Disabilities Act (“ADA”) respectively. On August 22, 2002,

the District Court dismissed Petitioner’s original complaint due

to the inability of Petitioner’s counsel to associate with local

counsel. Bynam refiled the complaint on September 4, 2002,

after local counsel had been retained.

The question presented is whether the 90-day statute of

limitations of Title VII of the Civil Rights Act of 1964 and the

ADA should have been equitably tolled when the District Court

dismissed Petitioner’s rr complaint even though

Petitioner’s counsel had filed a pro hac vice petition with the

District Court.

ii

PARTIES TO THE PROCEEDING

Petitioner, Ricky Lee Bynam, states that he is a private

citizen who is not affiliated with any corporation or publicly

held company.

Respondent, Intermet Machining, states that it is a

publicly held company, and that no other publicly held

company owns 10% or more of Intermet Machining’s stock.

~

Be Geel VR, os

TABLE OF CONTENTS

Page

Question Presented ; i

Parties to the Proceeding ; . ii

Table of Contents lil

Table of Cited Authorities. | : iv

Table of Appendices. | vi

Opinions Below . | l

Statement of Jurisdiction . l

Constitutional and Statutory Provisions Involved __. 2

Statement of The Case . / 2

Reasons for Granting the Writ 4

I. The Decision Below Overlooked Two Pro Hac Vice

Petitions Filed By Petitioner’ s Counsel 5

II. Certiorari Is Warranted Because The Decision Below

Conflicts With Decisions of This Court and Of Other

Circuits i 8

Conclusion.” , 18

iv

TABLE OF CITED AUTHORITIES

Cases: Page

Alsaras v. Dominick’s Finer Foods, Inc., 2000 U.S. App.

LEXIS 30183 (7" Cir. 2000) . ; 17

Armstrong v. Martin Marietta Corp., No. 95-3255, _ F.2d _

(11" Cir. 1996) , 10

Davis v. Bryan, 810 F.2d 42 (2™ Cir. 1987) . 17

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,

209 F.3d 552 (6" Cir. 2000) . . , 12

Hishon v. Viking & Spalding, 467 U.S. 69, 104 §.Ct. 2229, 81

L. Ed.2d 59(1984) . 8

Johnson v. Railway Express Agency, Inc., 489 F.2d 525 (6"

Cir. 1973) ; ’ 9

Jordan v. Lewis Grocer Co., 467 F. Supp. 113 (1979) 9

Marsh v. Soares, 223 F.3d 1217 (10" Cir. 2000) 11

McClain v. Mack Trucks, Inc., 81 F.R.D. 730 (E.D. Pa. 1979)

15

Nilsen v. City of Moss Point, Miss., 701 F.2d 556 (5" Cir.

1983) . , , , , 10

Nottelson v. A.O. Smith Corp., 423 F. Supp. 1345 (E.D. Wisc.

1976) . . ; 12

Price v. Southwestern Bell Telephone Co., 687 F.2d 74 (5™ Cir.

1982) . ; . 17

Vv

~

Scheuer v. Rhodes, 416 U. S. 232, 94 S.Ct. 1683, 40 L. Ed.2d

90 (1974) ' 8

Truitt v. County of Wayne, 148 F.3d 644 (6" Cir. 1998) 1]

U.S. v. Glenn, __ 01-5138 ___ (N_D. Ok. 2003). 12

Venters v. City of Delphi, 123 F.3d 956 (7" Cir. 1997) 17

Williams v. Sears, Roebuck and Co., 143 F. ~~ 2d 941 (W.D.

Ten. 2001) ; 12

Woodward v. Williams, 263 F.3d 1135 (10" Cir. 2001) 1]

Zipes v. lrans World Airlines, Inc., 455 U.S. 385, 102 S.Ct.

1127, 71 L. Ed.2d 234 (1982). ; 16

STATUTES:

42 U.S.C. §2000e et seq ’ ee ey Oe

42 U.S.C. §12181 et seq ee Ae Rye

28 U.S.C. §1254(1) | | | | 1

vi

TABLE OF APPENDICES

Page

Appendix A---Opinion and Order of the United States District

Court for the Middle District of Georgia, Columbus Division

and filed September 10, 2003 . la

Appendix B---Opinion of the United States Court of Appeals

for the Eleventh Circuit and Decided March 5, 2004 lla

Appendix C—Order Denying Petition for Rehearing and filed

June 3, 2004. | 25a

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Eleventh Circuit in this case.

OPINIONS BELOW

The Opinion and Order of the United States District

Court for the Middle District of Georgia, Columbus Division,

(per Land, Clay D., D. J. ) granting Respondent’s motion for

Judgment on the Pleadings (Appendix (“Pet. App.”) la-10a) is

not otherwise published. The opinion of the Court of Appeals

(per Curiam) (Pet. App. | 1a-24a) is not otherwise published.

The Court of Appeals’ Order denying rehearing and rehearing

en banc (Pet. App. 25a-26a) is not otherwise published.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Eleventh

Circuit entered its Opinion and Order on March 5, 2004, and

denied rehearing and rehearing en banc on June 3, 2004. The

Petitioner invokes this Court’s jurisdiction under 28 U.S.C. §

1254(1)

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. §2000e ef seq., and the

- Americans With Disabilities Act, 42 U.S.C. §12181 et seq.

STATEMENT OF THE CASE

On May 10, 1999, Bynam sustained injuries arising out

of and in the course of his employment with his employer

Intermet Machining. He became disabled as a result of the

injuries he sustained and was unable to perform essential

functions as a machine operator. Bynam filed a workers’

compensation claim with the State of Georgia Board of

Workers’ Compensation.

During the pendency of Bynam’s compensation claim,

Intermet Machining terminated his employment on November

4, 1999. On June 2, 2000, Bynam filed a charge with the

District Office of the Equal Employment Opportunity

Commission (EEOC), alleging unlawful employment practice

committed against him because of his race and his disability

3

resulting from injuries sustained while in the course of his

employment with iieiel Machining. The EEOC determined

that Bynam timely filed his charge of discrimination. Bynam

received a “Notice of Suit Rights” (dated 21 June, 2001) on

June 25, 2001, entitling him to institute a civil action with

respect to the charge within 90 days of the date of the receipt

of said Notice.

On September 24, 2001, Bynam, pro se, filed suit

against Intermet Machining seeking damages for wrongful

termination from, employment because of his race

(black/African American) and disability in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§2000e ef seg., and the Americans With Disabilities Act, 42

U.S.C. §12181 ef seg.

On August 22, 2002, the District Court dismissed the

original complaint without prejudice because, it argued in

footnote 2, that plaintiff's counsel failed to seek admission, pro

hac vice or otherwise associate with local counsel. Bynam re-

4

filed the complaint on September 4, 2002, after local counsel,

Hon. Dana P. Gentry, had been retained. On September 10,

2003, the District Court entered an order granting Intermet

Machining’s motion for judgment on the pleadings under Rule

12(c) of the FRCP. Bynam appealed.

On March 5, 2004, the Eleventh Circuit Court of

Appeals affirmed the judgment of the District Court. On June

3, 2004, the Eleventh Circuit Court of Appeals denied Bynam’s

petition for rehearing and rehearing en banc. This petition

followed.

REASONS FOR GRANTING THE WRIT

The petition should be granted for the following

reasons. First, the judgment of the Eleventh Circuit clearly

overlooked the two pro hac vice petitions filed by petitioner’s

counsel in this case. This is in stark contrast to the Court's

affirmation of the District Court’s judgment that petitioner’s

counsel failed to seek admission, pro hac vice, or otherwise.

Pet. App. 4a,n 2). While the pro hac vice petitions were on

5

file, petitioner’s counsel made diligent efforts to locate and

retain local counsel.

Second, the Eleventh Circuit’s decision not only

conflicts with holdings of other circuits in the application of the

doctrine of equitable tolling to employment and disability

discrimination cases, bust also raises novel issues as to when

a District Court can dismiss a timely filed complaint when

petitioner’s counsel is trying to locate and retain local counsel.

I.

_

ARGUMENTS AND AUTHORITIES

I: The Decision Below Overlooked The Two Pro Hac Vice

| Petitions Filed By Petitioner’s Counsel

On September 24, 2001, Bynam, pro se, commenced

this action against Intermet Machining for wrongful

termination from employment in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §2000e ef seqg., and the

Americans With Disabilities Act, 42 U.S.C. §12181 ef seq.

On August 22, 2002, the District Court dismissed the

original complaint without prejudice to reinstatement because

6

of an alleged failure by Bynam’s attorney to seek admission to

the District Court, pro hac vice or otherwise associate with a

local attorney as required by local rules. Bynam re-filed the

complaint on September 4, 2002, after local counsel, Hon.

Dana P. Gentry, had completed his application for admission

to the District Court. On September 10, 2003, the District

Court entered an order granting Intermet Machining’s motion

for judgment on the pleadings under Rule 12(c) of the Federal

Rules of Civil Procedure.

On November 19, 2001, and again on September 12,

2002, Bynam’s attorney was properly admitted to the District

Court pro hac vice. The District Court’s Civil Docket for the

case contains an entry, dated September 12, 2002, noting the

fact that [.ynam’s attorney was properly admitted to the

District Court with payment of the pro hac vice admission fee

of $50.00.

Furthermore, Bynam’s attorney made diligent efforts to

retain local counsel all to no avail. At the time when Hon.

Dana P. Gentry consented to association as local counsel, he

J

had not yet been admitted to practice before the District Court

even though he was Nconeed to practice in the State of Georgia.

In order to speed up the admission process, Bynam’s attorney

paid the admission fee and forwarded the application materials

to the District Court’s Macon office by Federal Express mail.

Therefore, the 90-day statute of limitations under 42

U.S.C. §2000e-5(f)(1) was tolled when Bynam filed and then

re-filed the complaint because of an error on the part of the

District Court in dismissing the original complain in the first

place. The problems which led to the dismissal of Bynam’s

original complaint were not the result of inaction on Bynam’s

part. Moreover. adequate notice was provided to Intermet

Machining by the original complaint and the District Court’s

dismissal of that complaint without prejudice to reinstatement.

In light of the above, Bynam’s original complaint

should not have been dismissed by the District Court. Once

dismissed, however, the statute of limitations should have been

equitably tolled.

_— ee

8

II. Certiorari Is Warranted Because The Decision

Below Conflicts With Decisions of This Court And

Of Other Circuits.

Under Rule 12(c) of the Federal Rules of Civil

Procedure (FRCP), a court can dismiss a complaint for failure

to state a chien under which relief can be granted. The factual

allegations in a complaint must be taken as true and viewed in

the light most favorable to the plaintiff. Scheuer v. Rhodes,

416 U.S. 232, 94 §.Ct. 1683, 40 L. Ed.2d 90 (1974).

In addition, the reviewing court does not have to accept

any legal conclusions alleged in_ plaintiffs complaint.

However, dismissal of the allegations contained in the

complaint is appropriate only if it appears beyond doubt that

plaintiff can prove no set of facts in support of a claim that

would entitle her to relief. Hishon v. King Spalding, 467 U.S.

69, 104 §.Ct. 2229, 81 L.Ed.2d 59 (1984).

On September 24, 2001, Bynam, pro se, filed the

original complaint asserting Title VII and ADA claims

9

against Intermet Machining. Bynam received the “Notice of

Suit Rights,” dated June 21, 2001, on June 25, 2001.

Bynam’s clams are not time-bared simply because he filed

suit on September 24, 2001. In fact, September 23, 2001, the

ninetieth day from the time the plaintiff received the “Notice

of Suit Rights” fell on a Sunday. Under Rule 6(a) of the

FRCP, the plaintiff timely filed his suit on Monday,

September 24, 2001. Jordan v. Lewis Grocer Co., 467 F.

Supp. 113 (1979).

Furthermore, after the District Court dismissed the

original complaint without prejudice to reinstatement on

August 22, 2002, Bynam re-filed the complaint on

September 4, 2002, less than 30 days after dismissal. In

Johnson v. Railway Express Agency, Inc., 489 F.2d 525 (6"

Cir. 1973), the Court dismissed without prejudice to

reinstatement Willie Johnson’s original complaint, and

ordered him to obtain a new attorney or have his suit

10

dismissed without prejudice. Although Johnson failed to re-

file his suit in 30 days, the Sixth Circuit Court of Appeals

held that the District Court was correct in ordering Johnson

to file the new case within 30 days at a minimum. The 90-

‘ day statute of limitations was tolled when the Court

dismissed the original complaint without prejudice to

reinstatement and ordered Johnson to obtain a new attorney.

Here, as in Armstrong v. Martin Marietta Corp., No.

95-3255, F.2d (11 Cir. 1996), the Court dismissed

the plaintiffs case without prejudice, and without

adjudication - the merits. Nilsen v. City of Moss Point,

Miss., 701 F.2d 556 (5™ Cir. 1983). The plaintiffs refiled

their class action suit more than 90 days after the Court’s

order of dismissal. The 11" Circuit Court of Appeals held

that the order of dismissal without prejudice was not a final

judgment under Rule 54(b) of the FRCP, and that the tolling

of the 90-day statute of limitations of Title VII remained

11

tolled when the Court dismissed the original complaint. In

this case, petitioner refiled the complaint on September 4,

2002, less than 30 days after the Court’s order of dismissal

during which the statute of limitations remained tolled

pursuant to Johnson and Armstrong.

The applicability of equitable tolling must

necessarily be undertaken on a case-by-case basis. /ruift v.

County of Wayne, 148 F.3d 644 (6" Cir. 1998). Title VII's

and the ADA’s statute of limitations is subject to equitable

tolling only when a complainant such as Bynam diligently

pursues his claims and demonstrates that the dismissal of the

original complaint was caused by extraordinary

circumstances beyond his control, Marsh v. Soares, 223

F.3d 1217 (10 Cir. 2000), cert denied, 121 S.Ct. 1195

(2001), Woodward v. Williams, 263 F.3d 1135 (10 Cir.

2001), or by procedural fault on the part of the District

12

Court. Nottelson v. A.O. Smith Corp., 423 F.Supp. 1345

(E.D. Wisc. 1976).

Among the factors to be considered in determining

the appropriateness of equitably tolling a statute of

limitations are diligence in pursuing one’s rights, and

absence of prejudice to the defendant. Williams V. Sears,

Roebuck and Co., 143 F. Supp. 2d 941 (W.D. Ten. 2001),

citing Graham-Humphreys v. Memphis Brooks Museum of

Art, Inc., 209 F.3d 552 (6" Cir. 2000). In considering the

issue Of equitable tolling, this Court must also assume the

truth of Bynam’s assertion that the undersigned counsel was

duly admitted in the District Court pro hac vice, and that he

made diligent efforts to retain local counsel. U.S. v. Glenn, _ —

01-5138 (N.D. Ok. 2003). Respondent has not shown

that it would be prejudiced by the tolling of the statute of

limitations. In light of the facts presented in this case, equity

demands an evaluation and reversal of the Eleventh Circuit’s

13

opinion affirming the District Court’s order dismissing

Bynam’s original complains in August 2002.

The original compiaint should not have been

dismissed because Bynam’s counsel was properly admitted

pro hac vice to the District Court, Bynam was diligent in

pursuing his rights, and Intermet Machining offered no proof

that it had_been prejudiced. On November 19, 2001, and

again on September 12, 2002, Bynam’s counsel properly

filed petitions for admission to plead and practice pro hac

vice in the District Court. The District Court’s Civil Docket

for the case includes an entry, dated September 12, 2002,

noting the fact that Bynam’s counsel was properly admitted

to the District Court with payment of the admission fee of

$50.00.

Furthermore, Bynam’s counsel made diligent efforts

to retain local counsel. During the pre-trial conference on

August 15, 2002, Bynam’s counsel informed the District

14

Court of efforts being made to associate local counsel,

including, among others, Hon. Robert D. Wilson and Hon.

Pete Quezada both of Columbus, Georgia. For various

reasons, none of the counsel contacted expressed a

willingness to associate with Bynam’s counsel.

At the time when Hon. Dana P. Gentry consented to

associate with Bynam’s counsel, the clerk of the District

Court in Columbus, Georgia, informed Bynam’s counsel that

Hon. Gentry had not yet been admitted to practice before the

District Court. In order to speed up the admission process,

the undersigned counsel paid the admission fee and

forwarded the application for admission to the District

Court’s Macon office by Federal Express mail. The District

Court dismissed the original complaint before the District

Court clerk had processed Hon. Dana P. Gentry’s application

for admission.

15

The facts of this case, therefore, warrant the equitable

tolling of the statute of limitations under Title VII and the

ADA. The District Court’s dismissal of Bynam’s original

complaint was clearly erroneous, and was not the result of

inaction on Bynam’s part. Moreover, !ntermet Machining

was not prejudiced by the dismissal. In fact it received

adequate notice of the action by the timely filing of the

charge with the EEOC, the original complaint, and by the

District Court’s dismissal of that complaint without

prejudice to reinstatement.

In McClain v. Mack Trucks, Inc., 81 F.R.D. 730

(E.D. Pa. 1979), McClain sued his former employer, Mack

Trucks, Inc., alleging, inter alia, harassment and discharge

from employment because of race. In dismissing the

complaint because it was not filed within the 90-day period

provided by 42 U.S.C. §2000e-5(f), the Court held that:

“However, significantly, he did not file the complaint within

16

ninety days of the dismissal without prejudice. This he

could have done.” Id at 732. In the case sub judice, Bynam

re-filed the complaint less than two weeks after the dismissal

of the original complaint. Therefore, the 90-day statute of

limitations was tolled when Bynam filed and then re-filed

the complaint because of an error on the part of the District

Court.

In Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), female flight

attendants brought suit against Trans Worid Airlines, Inc.,

alleging unlawful sex discrimination in violation of Title VII

of the Civil Rights Act of 1964 by its policy of grounding all

female flight cabin attendants who became mothers; male

counterparts who became fathers were allowed to continue

flying. The Court held that filing a timely charge of

discrimination with the EEOC is a requirement that, like a

statute of limitations, is subject to waiver, estoppel, and

17

tolling when equity so requires. The facts of the case swh

judice warrant application of the doctrine of equitable tolling

to the 90-day statute of limitations for Bynam’s Title VII and

ADA claims. Price v. Southwestern Bell Telephone Co., 687

F.2d 74 (5™ Cir. 1982). See also Alsaras vy. Dominick's

liner Foods, Inc., 2000 U.S. App. LEXIS 30183 (7" Cir.

2000).

In Femters v. City of Delphi, 123 F.3d 956 (7" Cir.

1997), the Seventh Circuit held that an affirmative defense

predicated upon the statute of limitations must be pleaded”in

the answer to the complaint, that the defendant remains

obligated to act in a timely fashion, and that “A defendant

should no be permitted to ‘lie behind a log’ and ambush a

plaintiff with an unexpected defense.” Citing Perez v. united

States, 830 F.2d 54, 57 (5" Cir. 1987), and Davis v. Bryan,

810 F.2d 42 (2™ Cir. 1987). In this case, respondent raised

the statute of limitations defense in the motion for judgment

18

on the pleadings on August 12, 2003, three days before the

pre-trial conference on August 15, 2003. A trial date had

aiready been set by the District Court. Therefore, it was not

appropriate for the District Court to grant respondent’s

motion for judgment on the pleadings when respondent

invoked the statute of limitations in its brief to the Court.

CONCLUSION

For the reasons set forth above, the petition for a writ

of certiorari should be granted

Respectfully submitted,

ae hs Haha

Peter A. Dumbuva |

Counsel of Record

P.O. Box 3302

Phenix City, AL 30807

(706) 289-5082

APPENDIX

la

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

RICKY LEE BYNAM. ’

Plaintiff *

VS * CASE NO 4.02-CV-139-]

INTERMET MACHINING, *

Defendant ”

ORDER

The Court presently has pending before it Defendant

Intermet Machining’s Motion for Judgment on the Pleadings

The Court finds that Plaintiff's federal law claims are barred

by the applicable statute of limitations Therefore.

Defendant's Motion is granted as to those clams.) The Court

declines to exercise supplemental! jurisdiction over Plaintiff s

remaining state law claims, and those claims are dismissed

without prejudice.

2a

STANDARD OF REVIEW

Pursuant to Rule 12(c) of the Federal Rules of Civil

Procedure, any party may move for judgment on the

pleadings “[a]fter the pleadings are closed but within such

time as not to delay the trial” Fed. R. Civ. P. 12 ©).

“Judgment on the pleadings is appropriate where there are no

material facts in dispute and the moving party is entitled to

judgment as a matter of law.” Cannon v. City of W. Palm

Beach, 250 F.3d 1299, 1301 (11" Cir. 2001).. When

reviewing a motion f or judgment on the pleadings, the court

is bound to accept the facts in the plaintiff's complaint as true

and to view those facts in the light most favorable to the

nonmoving party. /d.

FACTS

Plainuff Ricky Lee Bynam (“Bynam”) was

discharged from his employment with Defendant Intermet

Machining (“Intermet’) on November 4, 1999. At that time,

3a

Bynam had a workers’ compensation claim pending with the

State of Georgia Board of Workers’ Compensation, arising

from injuries he suffered on May 10, 1999, while performing

his duties as a machine operator for Intermet. On June 2,

2000, Bynam filed a charge with the Equal Employment

Opportunity Commission (“EEOC”), alleging Intermet had

discriminated against him based on his race and disability.

The EEOC ultimately issued a Notice of Right to Sue on June

21, 2001. Bynam received this notice on June 25, 2001.

Bynam first filed a Complaint in this Court on

September 24, 2001, asserting Title VII and ADA claims.

Bynam V. Intermet Machining, No. 4:0\-CV-130-1 (M.D. Ga.

filed Sept. 24, 2001). Defendant Intermet does not dispute

that this Complaint was timely filed within ninety days of

Plaintiff receiving his right to sue notice.’ See 42 U.S.C. §

1 September 23, 2001. the ninetieth day following Bynam’s

receipt of a right to sue letter, fell on a Sunday. Pursuant to Rule

6(a) of the Federal Rules of Civil Procedure. Bynam therefore had

4a |

2000e-5(f) (1); see also Zillyette V. Capital One Fin. Corp.,

179 F.3d 1337, 1339 (,,th Cir. 1999) (noting Title VII’s

procedural requirements apply equally to ADA claims).

However, Bynam’s original suit was subsequently dismissed

on August 22, 2002.’

Plaintiff refiled his Complaint on September 4, 2002,

which was beyond the ninety-day statute of limitations period

for his federal claims. Intermet now seeks judgment on the

pleadings as to Plaintiff's federal law claims based upon the

until Monday, September 24, 2001, to file a complaint before

being time-barred from doing so. See Fed. R. Civ. P. 6(a).

2 The Court dismissed Plaintiff's original Complaint based upon

Plaintiff's counsel’s failure to comply with the Court’s local rules

which require that counsel be admitted to this Court to practice

before it. Plaintiff's counsel, a member of the Alabama bar, was

not a member of the Georgia bar and never sought admission, pro

hac vice or otherwise, to practice before this Court. Moreover,

counsel failed to take advantage of the Court’s several

opportunities to associate local counsel. The Court consequently

dismissed Plaintiff's Complaint without prejudice for failing to

comply with the Court’s Order and local rules.

Daa al

Sa

expiration of the statute of limitations.

DISCUSSION

The Court has federal question jurisdiction over this

case based upon Plaintiff Bynam’s claims under Title VII and

the ADA. See 28 U.S.C. § 1331. Both of these claims must

be brought within ninety days following the receipt by

Plaintiff of a Notice of Right to Sue. See 42 U.S.C. § 2000e-

5(f) (1). Defendant seeks judgment on the pleadings based

upon the fact that Plaintiff did not file his Complaint in this

case within the applicable ninety-day statute of limitations

period. Plaintiff Bynam argues that the present motion

should be denied because his original Complaint was timely

filed, and the statute of limitations should be tolled during the

pendency of that action.

The present suit was clearly filed outside of the

ninety-day statute of limitations period. The Plaintiff filed

his original suit on September 24, 2001, the very last day of

6a

the ninety-day limitations period. He refiled the abeve

captioned case on September 4, 2002, almost one year after

the statute of limitations had expired. Accordingly, it is clear

that his federal law claims are untimely. Moreover, “t]he

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.” Stein v. Reynolds

Securities, Inc., 667 F.2d 33, 34 (1l~ Cir. 1982).

Plaintiff, relying upon Armstrong v. Martin Marietta

Corp., 93 F.3d 1505 (,,th Cir. 1996), argues that the statute of

limitations should be tolled during the pendency of his

original suit. Unfortunately for Plaintiff, even if the statute

of limitations were tolled, his claim would still be time-

barred because he did not file his claim within the time

remaining on the ninety-day limitation period. Plaintiff

chose to file his original suit on the very last day of the

ninety-day limitation period. Therefore, there was no time

Ta

left to toll during the pendency of that suit. Accordingly,

when his Complaint was dismissed, he had no time left on

the federal limitations period within which to file his federal

claims. Tolling does not start the limitations period anew but

simply suspends the running of the limitations period during

the pendency of the tolling event. See United States v.

Ibarra, 502 U.S. 1, 4n.2 (1991) (highlighting the application

of this principle in equitable tolling situations). Since no

additional time was left at the conclusion of the tolling event,

the tolling does not rescue Plaintiff's federal law claims in

this case.*

Even if tolling could help Plaintiff, the Court finds

that the doctrine of equitable tolling should not apply in this

3 The Court recognizes that this result in effect made the Court’s

dismissal of Plaintiff's original Complaint without prejudice a

dismissal with prejudice at least as to Plaintiff's federal law

claims. While this result may seem harsh, the Court notes that

Plaintiff had ample opportunity to avoid the original dismissal and

also had recourse to pursue an appeal of that order, which Plaintiff

chose not to do.

a NOS ae:

8a

case. Equitable tolling is available in employment

discrimination cases if the facts support its application. See

Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (,,th Cir.

1993) (citing Suarez v. Little Havana Activities, 721 F.2d

338, 340 (,,th Cir. 1983)) (noting ninety-day period is subject

to equitable tolling). However, such tolling should be used

sparingly. “Equitable tolling may be justified where the

plaintiff actively pursued judicial remedies by filing a

defective pleading within the Statutory period, or where the

plaintiff has been misled by the court into believing that a

filing was effective.” /d. (internal citations omitted)

The Court finds that Plaintiff did not properly pursue

his original action, which was ultimately dismissed because

of failure of Plaintiff's counsel to follow the Court’s rules

and obey its orders. The Court also finds that although the

Court’s dismissal was stated to be without prejudice, Plaintiff

could not have been misled by that Order because at the time

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it was entered Plaintiff should have known that the statute of

limitations had already expired, and Plaintiff made no effort

to oppose the dismissal or seek its reversal on appeal.

Therefore, even if the tolling of the statute of limitations

during the pendency of the original case could rescue

Plaintiff's time-barred federal claims, the Court finds that

equitable tolling should not apply under the facts of this case.

In addition to his claims for employment

discrimination, Plaintiff Bynam also asserts state law claims

for retaliation for filing a workers’ compensation claim and

intentional infliction of emotional distress. Having granted

Defendant Intermet judgment on the pleadings as to Plaintiff

Bynam’s federal claims, the Court declines to exercise

supplemental jurisdiction over these claims. 28 U.S.C. §

1367(c) (3).

CONCLUSION

The Court grants Defendant’s Motion for Judgment

Site i ee ek

Ilda

on the Pleadings as to Plaintiff's federal law Claims, which

are dismissed with prejudice. The Court declines to exercise

supplemental jurisdiction over Plaintiff's remaining state law

claims, which are dismissed without prejudice.

IT IS SO ORDERED, this 10% day of September,

2003.

/s/ CLAY D. LAND

UNITED STATES DISTRICT JUDGE

lla

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No.03-15051

Non-Argument Calendar

D.C. Docket No. 02-00139-CV-1-CDL-4

RICKY LEE BYNAM,

Plaintiff-Appellant,

versus

INTERMET MACHINING,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Georgia

(March 5, 2004)

Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:

Ricky Lee Bynam (“Bynam”) appeals the district

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court’s order granting defendant Intermet Machining’s

(“Intermet”) motion for judgment on the pleadings in his

employment discrimination action. The district court ruled

that Bynam’s two federal claims against Intermet were

untimely and then declined to exercise supplemental

jurisdiction over his state-law claims. WE AFFIRM.

I. BACKGROUND

Bynam was employed as a machinist for Intermet and

was injured in a workplace accident in May of 1999. He

filed a claim with the State of Georgia Board of Workers’

Compensation, and on 4 November 1999, while this claim

was pending, Intermet terminated his employment. Bynam

filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”), alleging that he was fired because of

his race and his disability. He received a “Notice of Right to

Sue” letter from the EEOC on 25 June 2001.

Upon receipt of this letter, Bynam had 90 days to

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initiate his civil lawsuit pursuant to 42 U.S.C. $§ 2000e-

5(f)(1). On 24 September 2001,’ Bynam filed a complaint in

the District Court for the Middle District of Georgia alleging

two federal claims and, two state-law claims: (1) discharge

based on race in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. § 2000e, et seq; (2)

disc. «ge based on disability in violation of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq.; (3)

retaliatory discharge; and (4) intentional infliction of

emotional distress. This complaint (“Bynam I”) was

dismissed on 22 August 2002 after Bynam’s counsel failed to

comply with the local rules requiring him to be admitted to

practice in the Middle District of Georgia bar or to associate

1 24 September 2001 marked the 91st day after Bynam

received his EEOC letter. Because 23 September was a

Sunday, however, Bynam’ s complaint filed on 24 September

was timely filed under Rule 6(a) of the Federal Rules of Civil

Procedure.

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with local counsel. Bynam did not appeal. Instead, on 4

September 2002, Bynam filed a second complaint (“Bynam

Ir’) alleging the same four claims.

Intermet filed a motion for judgment on the pleadings

as to the two federal claims, pursuant to Federal RUle of

Civil Pro~edure 12(c), on the ground that the statute of

limitations for those claims had expired. Bynam, on the other

hand, argued that Intermet’s motion should be denied

because his complaint in Bynam I was timely filed and the

Bynam II complaint was filed within 30 days following the

dismissal of Bynam I.

The district court concluded that the Bynam Il

complaint was filed outside the 90-day statute of limitations

period imposed under 42 U.S.C. § 2000e-5(f)(1).

Accordingly, the district court granted Intermet’s motion for

judgment on the pleadings—dismissing with prejudice the

federal claims—and then declined to exercise supplemental

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jurisdiction over Bynam’s state-law claims. Bynam now

appeals.

II. DISCUSSION

On appeal, Bynam argues (a) that his federal claims

should be considered as timely filed and (b) the district court

should have exercised supplemental jurisdiction over his

state-law claims. We discuss these issues in turn.

A. Judgment on the Pleadings

We review de novo the grant of a motion for

judgment on the pleadings. Cannonv. City of West Palm

Beach, 250 F.3d 1299, 1301 (llth Cir. 2001). The district

court dismissed Bynam’ s complaint as untimely and also

declined to apply the doctrine of equitable tolling We

address each issue in turn.

1. Bynam’s Untimely Complaint

Under Title VII and the ADA, after receiving the EEOC’s

“Right to Sue” letter, Bynam had 90 days to initiate a civil

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action. 42 U.S.C. §$ 2000e5-(f)( 1), 12117(a); Santini_v.

Cleveland Clinic Florida, 232 F.3d 823, 825 (11th Cir. 2000)

(per curiam); Zillyeftev. Capital One Financial Corp., 179

F.3d 1337, 1339 (11th Cir. 1999). The parties do not dispute

that Bynam’ s complaint in Bynam I, which was dismissed

without prejudice, was timely filed; they dispute whether the

complaint in Bynam II, which was dismissed with prejudice

as to the federal claims, should be considered as similarly

timely filed.

Under our precedent, “[t]he 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.” Stein v. Reynolds Sec.. Inc., 667 F.2d

33, 34 (11th Cir. 1982). Because Bynam II was filed almost

one year after the statute of limitations had expired, the

district court correctly concluded that Bynam’s two federal

Claims were untimely.

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Bynam argues, however, relying on Johnson v. Ry.

Express Agency. Inc., 489 F.2d 525 (6th Cir. 1973), affd,

421 U.S. 454, 95 S. Ct. 1716 (1975), and Armstrong v.

Martin Marietta Corp., 138 F.3d 1374 (11th Cir. 1998) (en

banc), that his complaint in Bynam II should be considered as

timely because it was filed within 30 days of the dismissal of

the complaint in Bynam I. Bynam misreads the Sixth

Circuit’s analysis in Johnson and his reliance on Armstrong

is similarly misplaced. In Johnson, the

plaintiff—Johnson—filed an employment discrimination

action alleging vioiations under Title VII and state law. 489

F.2d at 526. Prior to trial, Johnson’s appointed counsel

withdrew with permission, and the district court wrote a letter

to Johnson providing him 30 days to obtain new counsel or

have his case dismissed without prejudice. Id. at 527.

Johnson did not obtain new counsel within that time, and the

court dismissed his case without prejudice. Id. When

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Johnson filed a second complaint, three months after the

dismissal of the original complaint, the district court

dismissed certain claims on the grounds of res iudicata and

ruled that Johnson’s failure to refile a lawsuit within 30 days

from the date of dismissal resulted in a failure to comply with

the 30-day filing requirement.” Id. When Johnson argued that

he was not required to file suit within 30 days after the

dismissal without prejudice because he fulfilled the statutory

requirement of filing his initial complaint within 30 days of

receiving his right-to-sue letter, the Sixth Circuit expressly

disagreed. Id. at 528. Thus, Johnson is inapposite to this

case.

Bynam’s reliance on Armstrong is_ similarly

misplaced. In that case, we determined that the 90-day

2 The 30-day filing requirement in Johnson was prescribed

under 42 U.S.C. § 2000e-5(e)(1). In contrast, the filing

period applicable to the Bynam II complaint is 90 days

pursuant to 42 U.S.C. § 2000e-5(f)(1).

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period for filing a civil action under the Age Discrimination

in Employment Act was tolled for individual members of a

class until the district court entered an interlocutory order

denying class certification. 138 F.3d at 1378. We also

concluded that the limitations period remained equitably

tolled for four appellants who had been affirmatively

misinformed by the EEOC as to the statute of limitations, but

was not equitably tolled as to other appellants who did not

receive affirmative misinformation. Id. at 1393. Bynam,

however, is neither a member of a class nor was he

misinformed by the EEOC (or the district court) about the

statutory filing period. Thus, Armstrong is also inapposite to

this case, and the district court correctly concluded that the

federal claims contained in the Bynam II complaint were

untimely filed.

2. The Doctrine of Equitable Tolling

The 90-day statute of limitations rule applicable to

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actions arising under Title VII and the ADA is not

jurisdictional. Jackson v. Seaboard Coast Line R.R. Co., 678

F.2d 992, 1007 (11th Cir. 1982). As a result, the limitations

period is subject to equitable tolling. Suarez v. Little Havana

Activities, 721 F.2d 338, 340 (11th Cir. 1983) (per curiam).

“Equitable tolling may be justified where the plaintiff

actively pursued judicial remedies by filing a defective

pleading within the statutory period, or where the plaintiff

has been misled by the court into believing that a filing was

effective.” Goldsmith v. City of Atmore, 996 F.2d //55,

1161 (11th Cir. 1993). Neither situation is present in this

case. In Goldsmith, we held that the plaintiff's complaint,

filed on the 94th day after she received her EEOC letter, was

timely filed. 996 F.2d at 1161. Instead of a complaint, the

plaintiff originally filed her EEOC letter and a memorandum

outlining a summary of the allegations against her employer.

Id. at //58. The district court ordered her to file a formal

21a

complaint by a certain date—which was 94 days after she

received her EEOC letter—and the plaintiff complied. Id.

Even though the plaintiff's complaint was filed outside of the

90-day requirement, we determined that it should be

considered as timely filed because the plaintiff “was led by

the district court to believe that her defective filing was

effective for purposes of the 90-day rule.” Id. at 1161. Thus,

we concluded that the 90-day limitations period was toiled

until the date the plaintiff filed her formal complaint. Id.

In contrast to the situation in Goldsmith, Bynam’s

complaint in Bynam I was not defective. Rather, his counsel

was not authorized under the local rules to represent Bynam

in federal district court. The district court expressly notified

Bynam that he was required to comply with the rules by a

certain date or face dismissal of his civil action. When

counsel failed to comply, the court dismissed Bynam’s case.

Therefore, the district court correctly concluded that Bynam

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failed to properly pursue his original action. Moreover,

Bynam was not misled by the district court into believing that

he could file his complaint in Bynam II outside the 90-day

statute of limitations. The district court again correctly

concluded that Bynam should have known that the statute of

limitations had already expired when Bynam I was subject to

dismissal, and he made no effort to oppose the dismissal of

Bynam I or seek its, reversal on appeal. Thus, Bynam has

not demonstrated that the doctrine of equitable tolling should

apply to this case.

B. Supplemental Jurisdiction

A decision under 28 U.S.C. § 1367(c) with respect to

the retention of supplemental jurisdiction over state law

3 We note also that, even if the doctrine of equitable tolling

could rescue Bynam’s claims, those claims would still be

time-barred because he filed his complaint on the very last

day of the 90-day limitation period—24 September 2001.

Thus, there is no time left to toll during the pendency of that

suit.

23a

claims is reviewed for abuse of discretion. Shotz v. City of

Plantation, 334 F.3d 1161, 1185 (11th Cir. 2003).

28 U.S.C. § 1367 dictates that the district court may

decline to exercise supplemental jurisdiction over a claim if

“the district court has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c)(3). In this case,

the district court dismissed Bynam’s two federal claims over

which it had original jurisdiction. Because section 1367

allows the district court to then decline supplemental

jurisdiction over adjacent state-law claims, the court’s

decision to decline such jurisdiction was not an abuse of

discretion.

Ill. CONCLUSION

On appeal, Bynam alleged that the federal claims in

his complaint in Bynam II should not have been dismissed as

untimely and that the district court should have exercised

supplemental jurisdiction over his state-law claims. We

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conclude that (1) the district court properly determined that

Bynam’s complaint was filed outside the 90-day statute of

limitations period, thus barring his federal claims; (2)

equitable tolling of the 90-day limitations period is not

warranted in this case; and (3) the district court acted in

accordance with 28 U.S.C. § 1367 in declining to exercise

supplemental jurisdiction over the state law claims after

dismissing the federal claims over which it had original

jurisdiction. Accordingly, the judgment of the district court

is AFFIRMED.

25a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-15051-JJ

RICKY LEE BYNAM,

Plaintiff-Appellant,

versus

INTERMET MACHINING,

Defendants-Appellees.

On Appeal from the United States District Court for the

Middle District of Georgia

ON PETITION (S) FOR REHE AND PETITION (S

FOR REHEARING EN BANC

(Opinion , 19° Cr. 19. F. 2d ).

Before: TIOFLAT, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:

- “

26a

The Petition(s) for Rehearing are DENIED and no Judge in

regular active service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35, Federal Rules

of Appellate Procedure), the Petition(s) for Rehearing EN

BANC and DENIED.