Hazel Miller v. The State of Georgia

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 15, 2007
No. 06-14138 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-00032-CV-6

HAZEL MILLER,

Plaintiff-Appellant,

versus

THE STATE OF GEORGIA,
DEPARTMENT OF CORRECTIONS OF THE STATE OF GEORGIA,
FRED BROWN,
WARDEN HUGH SMITH,
JOHN DOE, et. al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________

(March 15, 2007)

Before DUBINA, CARNES and FAY, Circuit Judges.

PER CURIAM:
 Hazel Miller appeals the district court’s grant of the defendants’ motion for

dismissal of Miller’s employment action. The issue on appeal concerns the

timeliness of Miller’s action. For the reasons set forth more fully below, we

affirm.

Miller, represented by counsel, filed this action against her former employer

and supervisors, the State of Georgia, Department of Corrections of the State of

Georgia, Fred Brown, Hugh Smith, John Doe, and John Doe, II, alleging (1) age

discrimination, in violation of the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 623(a); (2) sexual harassment, in violation of Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2; (3) various

violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203(a);

(4) an unspecified deprivation of rights, in violation of 42 U.S.C. § 1983; and

(5) an unspecified conspiracy, in violation of 42 U.S.C. § 1985. In her complaint,

Miller indicated that she was terminated from her job on November 15, 2003.

After her termination, Miller filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) and the EEOC mailed a notice of right to sue

letter on September 30, 2004. Miller thereafter initiated the instant action on

March 20, 2006.

However, Miller had filed a previous complaint against the same defendants,

2
arising out of the same termination, on December 23, 2004. Nevertheless, Miller

failed to serve the complaint on the defendants within 120 days, as required in

Federal Rule of Civil Procedure 4. Miller eventually served the defendants with

notice of her complaint, but it was after the 120-day limitation period. Upon the

defendants’ motion, the district court dismissed Miller’s initial complaint without

prejudice on September 21, 2005.

In lieu of an answer to Miller’s instant complaint, the defendants moved to

dismiss the complaint as untimely under Federal Rule of Civil Procedure 12(b)(6).1

The district court granted the defendants’ motion to dismiss Miller’s complaint.

The district court found that Georgia’s renewal statute, O.C.G.A. § 9-2-61, did not

apply to Miller’s Title VII, ADEA, and ADA claims because those statutes set

forth specific statutes of limitations. The court determined that, because Miller did

not satisfy those limitations periods, specifically, 90 days from her receipt of the

right-to-sue letter, her Title VII, ADEA, and ADA claims were untimely. As to

Miller’s §§ 1983 and 1985 claims, the court found that those statutes did not have

specific federal statutes of limitations, and, thus, the Georgia renewal statute was

applicable to those claims. The court concluded, however, that Miller could not

1
The defendants also moved to dismiss the complaint on Eleventh Amendment immunity
grounds. (R1-3). Because the district court ultimately granted the motion to dismiss as
untimely, the court did not address the immunity issue. (R1-11 at 3). The parties do not raise an
issue regarding immunity on appeal. (See generally Blue Brief, Red Brief).

3
rely on the renewal statute because she had never perfected service of her initial

complaint, and, therefore, the renewal statute could not protect her instant

complaint from the bar of the two-year statute of limitations provided by Georgia

law. Specifically, the court found that there was “no dispute that Miller never

perfected service in her [initial] action. Indeed, that is why this Court dismissed

that case.” Accordingly, the court found that all of Miller’s claims were

time-barred.

Miller argues on appeal that the district court erroneously dismissed her

complaint because she timely renewed her complaint pursuant to O.C.G.A. § 9-2-

61. Miller contends that her initial complaint was renewable because, although she

served the defendants late, she still served them prior to the court’s order of

dismissal without prejudice, thereby perfecting her service. She further asserts that

federal law does not specify a time within which a party must refile an

involuntarily dismissed complaint, and, thus, Georgia law supplies the applicable

law. Miller concludes that the court incorrectly found that Miller had never served

the defendants where it is undisputed that she served the defendants prior to the

court’s order of dismissal.

“We review a district court’s grant of a motion to dismiss de novo, taking as

true the facts as they are alleged in the complaint.” Owens v. Samkle Automotive,

4
Inc., 425 F.3d 1318, 1320 (11th Cir. 2005).

A. Title VII, ADA, and ADEA Claims

Under Title VII, a plaintiff must file her complaint in the district court

within 90 days of her receipt of a right-to-sue letter from the EEOC. 42 U.S.C.

§ 2000e-5(f)(1); see also Stallworth v. Wells Fargo Armored Services Corp., 936

F.2d 522, 524 (11th Cir. 1991). The ADA provides the same statute of limitations,

as it expressly incorporates the enforcement mechanisms contained in Title VII, 42

U.S.C. § 2000e-5. See 42 U.S.C. § 12117(a); see also Zillyette v. Capital One

Financial Corp., 179 F.3d 1337, 1339 (11th Cir. 1999) (“It is settled law that, under

the ADA, plaintiffs must comply with the same procedural requirements to sue as

exist under Title VII of the Civil Rights Act of 1964”). Similarly, the ADEA

provides that a plaintiff asserting a claim under that statute must file her complaint

within 90 days of her receipt of a right-to-sue letter. 29 U.S.C. § 626(e); Kerr v.

McDonald’s Corp., 427 F.3d 947, 951 (11th Cir. 2005). In Miller’s case, the

EEOC mailed the right-to-sue letter on September 30, 2004. Miller offers no

evidence as to the date on which she received the letter. Assuming Miller received

the letter within the average time for mailing, her 90-day period ended in early

January 2005.2 Miller filed her initial complaint on December 23, 2004, well

2
This estimate was offered by the defendants in their motion to dismiss and Miller has
never disputed that her 90-day period ended in early January 2005.

5
within the 90-day period, but after that complaint was dismissed for failure to

perfect service, she filed her instant complaint on March 20, 2006, clearly beyond

the 90-day period.

Miller argues that her instant complaint is not untimely because Title VII,

the ADA, and the ADEA do not include provisions governing the renewal of a

dismissed complaint, and, thus, the applicable law is O.C.G.A. § 9-2-61. Miller’s

argument is without merit because, as discussed above, Title VII, the ADA, and the

ADEA all contain specific statute of limitations periods that Miller failed to satisfy.

Thus, the Georgia renewal statute does not save Miller’s instant complaint as to her

Title VII, ADA, and ADEA claims because it was filed beyond the 90-day statute

of limitations.

Furthermore, Miller never argued before the district court, nor on appeal,

that the dismissal without prejudice of her original complaint tolled the limitations

period. In any event, we have explained that the filing of a complaint that was later

dismissed without prejudice does not automatically toll the limitations period for a

future complaint. See Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th

Cir.2004) (writing that dismissal of an ADEA complaint, without prejudice, does

not allow a later complaint to be filed outside the statute of limitations); Justice v.

United States, 6 F.3d 1474, 1478-79 (11th Cir.1993) (stating general rule that filing

6
of lawsuit later dismissed without prejudice does not automatically toll statute of

limitations). Because Miller’s limitations period was not automatically tolled, and

because Miller has not argued or established that she is eligible for the

“extraordinary remedy” of equitable tolling, the filing of her original complaint

that was later dismissed without prejudice did not toll her limitations period. See

Justice, 6 F.3d at 1479 (explaining that courts, in their equitable capacity, will toll

statutes of limitations, but only if the plaintiff establishes that such tolling is

warranted and that there was an inequitable event that prevented the plaintiff’s

timely filing). Accordingly, the district court did not err in dismissing Miller’s

complaint as to her Title VII, ADA, and ADEA claims.

B. 42 U.S.C. §§ 1983 and 1985 Claims

Unlike Title VII, the ADA, and the ADEA, 42 U.S.C. §§ 1983 and 1985 do

not include specific statutes of limitations periods. Thus, we have held that the

proper limitations period for claims brought under §§ 1983 and 1985 is the

personal injury limitations period of the forum state. Rozar v. Mullis, 85 F.3d 556,

561 (11th Cir. 1996). Claims brought in Georgia are governed by O.C.G.A. § 9-3-

33, which provides that claims must be filed “within two years after the right of

action accrues.” Id. at 560-61; O.C.G.A. § 9-3-33. “The general federal rule is

that the statute of limitations does not begin to run until the facts which would

7
support a cause of action are apparent or should be apparent to a person with a

reasonably prudent regard for his rights.” Rozar, 85 F.3d at 561-62 (quotation

omitted). Here, Miller’s alleged injury resulted from her termination, which

occurred on November 15, 2003. Thus, she had until November 15, 2005 to file a

§ 1983 or § 1985 complaint arising out of her termination. Miller filed the instant

action on March 20, 2006.

Miller argues that, despite the tardiness of her instant complaint, her

complaint is legally timely because it is saved by the Georgia renewal statute.

Georgia Code § 9-2-61 provides:

[w]hen any case has been commenced in either a state or federal court
within the applicable statute of limitations and the plaintiff
discontinues or dismisses the same, it may be recommenced in a court
of this state or in a federal court either within the original applicable
period of limitations or within six months after the discontinuance or
dismissal, whichever is later . . . .

O.C.G.A. § 9-2-61(a). “The renewal statute is remedial in nature; it is construed

liberally to allow renewal where a suit is disposed of on any ground not affecting

its merits.” Hobbs v. Arthur, 444 S.E.2d 322, 323 (Ga. 1994). However, the

Georgia Supreme Court has held that, “[t]he privilege of dismissal and renewal

does not apply to cases decided on their merits or to void cases, but does allow

renewal if the previous action was merely voidable.” Id. (quotation omitted). “The

original suit is void if service was never perfected, since the filing of a complaint

8
without perfecting service does not constitute a pending suit.” Id. The Georgia

Supreme Court also held that a complaint is void and incapable of renewal “if there

has been a judicial determination that dismissal is authorized.” Id. In Hobbs, the

Georgia Supreme Court determined that the actions were voidable, but not void,

because (1) the plaintiffs had served the defendants after the service period; (2) the

plaintiffs then voluntarily dismissed their complaints; and (3) the dismissal came

before the trial court had ruled on the defendants’ motions for summary judgment.

Id. at 323-24.

Miller contends that her initial complaint was merely voidable, rather than

void, because she served the defendants after the notification period but before the

district court dismissed her initial complaint. However, Miller’s case is factually

distinguishable from Hobbs because Miller did not voluntarily dismiss her initial

complaint prior to the court’s dismissal. The initial complaint was dismissed by

court order granting the defendants’ motions. Thus, Miller’s initial suit was void

and incapable of renewal under O.C.G.A. § 9-2-61. See Hobbs, 444 S.E.2d at 323

(holding that an initial suit cannot be renewed “if there has been a judicial

determination that dismissal is authorized”). Because Miller’s initial suit is

unrenewable, and her instant complaint was filed beyond the two-year statute of

limitations period, the district court did not err in dismissing Miller’s 42 U.S.C.

9
§§ 1983 and 1985 claims.

In light of the foregoing, the district court’s grant of the defendants’ motion

to dismiss Miller’s complaint is

AFFIRMED.

10