UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1723
PAULA C. ANGLES; DEBORAH COLLINS; ELIZABETH A. GARRICK; EDNA
A. BOLTON; SONYA LYNN ANGELL; CANDY S. DICKINSON; SHIRLEY K.
FRELIX; PAULA HENRY; SANDRA MANNON; KATHLEEN SHALLOW;
KIMBERLY VELLER; JUANEMA OGLE; LILLIAN LEWIS; TABITHA A.
KNIGHT; MARY PFEUFER; CARMEN GARCIA; APRIL WEBSTER; DAPHNE
M. ROBINSON; DESIREE LIGHTFOOT; CHASSIDY HAMILTON; FRIEDA
SCOTT-BUTTS; ARACELI REYES; BRENDA WILLIAMS; MARIA D.
GONZALEZ; CARLOTA RZUCEK; DARLENE R. MARTIN; CAROLYN SABO;
SHERRY L. ALLISON; REBECCA TYLER-MILLS; MICHELE L. WAHL;
MELINDA J. ANDERSON, on behalf of themselves and others
similarly situated,
Plaintiffs – Appellants,
v.
DOLLAR TREE STORES, INCORPORATED,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, Senior
District Judge. (2:09-cv-00486-JBF-FBS)
Argued: January 24, 2012 Decided: September 13, 2012
Before SHEDD, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Diaz joined. Judge Davis wrote a
dissenting opinion.
ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN &
PANTAZIS, PC, Birmingham, Alabama, for Appellants. Kenneth
Martin Willner, PAUL HASTINGS LLP, Washington, D.C., for
Appellee. ON BRIEF: Gregory O. Wiggins, WIGGINS, CHILDS, QUINN
& PANTAZIS, PC, Birmingham, Alabama, for Appellants. Barbara B.
Brown, Carson H. Sullivan, PAUL HASTINGS LLP, Washington, D.C.;
Beth Hirsch Berman, WILLIAMS MULLEN, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
Paula Angles and other named plaintiffs (collectively “the
Plaintiffs”) in this proposed class action appeal the dismissal
of their complaint as untimely. For the following reasons, we
affirm.
I.
In 2008, the Plaintiffs filed an action against Dollar Tree
Stores in the Northern District of Alabama alleging claims under
the Equal Pay Act. Collins v. Dollar Tree Stores, Inc., 2:08-
cv-1267 (Collins I). 1 Collins I is a collective class action
alleging that Dollar Tree paid female managers less than their
male counterparts. As part of the action, notices were sent to
other female Dollar Tree store managers employed between 2006
and 2009. At the time Collins I commenced, 31 of the 34 named
plaintiffs had discrimination charges pending with the Equal
Employment Opportunity Commission (EEOC). 2 The EEOC sent right-
to-sue letters to those named plaintiffs between November 6,
2008 and April 24, 2009.
1
Cynthia Collins was originally the lead plaintiff in this
action as well. Pursuant to a settlement agreement with Dollar
Tree, she voluntarily dismissed her claims and Paula Angles
became the lead plaintiff.
2
Three of the named plaintiffs never filed an EEOC charge.
3
On February 4, 2009, 90 days after the first right-to-sue
letters were mailed, the Plaintiffs moved pursuant to Federal
Rule of Civil Procedure 15 to amend their complaint in Collins I
to add sex discrimination claims under Title VII. Dollar Tree
opposed the proposed amendment, arguing that proper venue for
the Title VII claims was in Virginia, not Alabama. 3 On February
20, 2009, the Plaintiffs filed a pleading labeled “Consent to
Severance and Reassignment of Title VII Claims,” requesting that
the Alabama district court sever the Title VII claims and assign
them to another judge. The Plaintiffs noted that they moved to
sever and reassign the Title VII claims rather than simply file
a new complaint because “the defendant may then argue that the
ninety day limitations period . . . expired before such re-
filing.” (J.A. 254). Thus, “[i]n order to avoid such a risk,”
the Plaintiffs “consent only to the Title VII claims at issue
being severed and reassigned a new case number and judge.”
(J.A. 254).
On June 17, the Alabama district court held a hearing on
the motion for leave to amend, noting that it was inclined to
deny the motion as futile because venue was improper. The
district court also noted that the motion for “Consent” was
3
Earlier, Dollar Tree had unsuccessfully moved to transfer
the Equal Pay Act claims to Virginia.
4
improper because, “[t]here’s nothing for you to consent to
unless I amend, unless I grant your motion for leave to amend,
which, again, I’m inclined to deny.” (J.A. 263). Failing to
recognize the Alabama district court’s signal about their need
to file in the proper district, on July 9, the Plaintiffs filed
another motion to amend the complaint. At this point, only 76
days had passed since the EEOC issued the April 24 right-to-sue
letters.
On September 30, 2009, the Alabama district court denied
the first motion for leave to amend as moot and the second
motion for leave to amend as futile because of improper venue.
The next day, the Plaintiffs filed a new complaint in the
Eastern District of Virginia stating the same Title VII claims
previously included in the proposed amended complaint in Collins
I. Because the action was filed outside of Title VII’s 90-day
limitations period, the district court dismissed the complaint
as untimely filed. In doing so, the court rejected the
Plaintiffs’ argument that moving to amend their complaint in
Collins I tolled Title VII’s statute of limitations and noted
that the case was not one that “turns on a plaintiff missing the
filing deadline by a few days.” (J.A. 508). The Plaintiffs
filed a Rule 59(e) motion to alter or amend the order, which the
district court denied. The Plaintiffs then filed this appeal.
5
II.
On appeal, the Plaintiffs argue that the district court
erred in finding that their Title VII claims are time-barred.
We review the district court’s 12(b)(6) dismissal de novo,
Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th
Cir. 2010), and its denial of a Rule 59(e) motion for abuse of
discretion, Orem v. Rephann, 523 F.3d 442, 451 n.2 (4th Cir.
2008).
A.
At the outset, we note that the Plaintiffs do not dispute
that their complaint was filed well outside the relevant
limitations period. Title VII requires that aggrieved persons
file a civil action within 90 days of receiving a right-to-sue
letter. 42 U.S.C. § 2000e-5(f)(1). The last right-to-sue
letters were issued on April 24, 2009, and the Plaintiffs’
complaint was not filed until October 1, more than 150 days
later.
In the face of the clear untimeliness of this action, the
Plaintiffs contend that the filing of the motion for leave to
file an amended complaint in Alabama tolls the statute of
limitations in this case. We disagree. Federal Rule of Civil
Procedure 15 governs the amendment of pleadings and, in
pertinent part, it provides that “a party may amend its pleading
only with the opposing party’s written consent or the court’s
6
leave.” Fed. R. Civ. P. 15(a)(2). 4 Under Rule 15, however, an
amended complaint is not actually “filed” until the court grants
“leave” for the amendment. Murray v. Archambo, 132 F.3d 609,
612 (10th Cir. 1998) (noting “an amendment that has been filed
or served without leave of court . . . is without legal
effect”). For instance, in Bridges v. Department of Maryland
State Police, 441 F.3d 197 (4th Cir. 2006), the original
plaintiffs moved to amend their complaint to add 18 individual
would-be plaintiffs. The district court denied the motion to
amend, concluding that the 18 would-be plaintiffs’ claims were
time barred. The would-be plaintiffs appealed the denial of the
motion to amend, and we concluded that they lacked standing to
appeal because, with the motion to amend denied, they “never
became parties to the action.” Bridges, 441 F.3d at 207.
The Fifth Circuit has explained the operation of Rule 15 in
this situation as follows:
4
In contrast to motions to amend, the initial filing of a
complaint is governed by Rule 3, which explains that “[a] civil
action is commenced by filing a complaint with the court.” Fed.
R. Civ. P. 3. In conjunction with Rule 3, Rule 5 provides that
a “paper is filed by delivering it” to “the clerk” or “a judge
who agrees to accept it for filing.” Fed. R. Civ. P. 5(d)(2).
Under these rules, “[t]he original complaint [is] considered
filed when . . . placed in the possession of the clerk of the
district court.” 4 Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure § 1153, at 471 (3d ed.
2002).
7
[F]ailing to request leave from the court when leave
is required makes a pleading more than technically
deficient. The failure to obtain leave results in an
amended complaint having no legal effect. Without
legal effect, it cannot toll the statute of
limitations period.
U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296
(5th Cir. 2003) (emphasis added).
In HealthSouth, the plaintiff, Mathews, filed an action
against his former employer under the False Claims Act on April
1, 1999. Without leave of the court, he filed an amended
complaint on August 2, adding state law claims for, inter alia,
age discrimination. The clerk of court issued Mathews a
deficiency notice for failing to seek leave to file the amended
complaint, and on August 9, he complied with Rule 15(a) and
requested leave to file the amended complaint, which the
district court granted the same day. The statute of limitations
on the age discrimination claim ran on August 4, 1999. The
district court ultimately dismissed the age discrimination claim
as time-barred even though the claim was timely when the
plaintiff first filed the amended complaint. On appeal, the
plaintiff contended that, under Rule 3 and Rule 5, the age
discrimination claim was timely “filed” on August 2 when he
filed the amended complaint. The Fifth Circuit disagreed,
explaining that “[u]nder Rule 15(a), [the plaintiff] needed
permission before his amended complaint could be filed, which he
8
did not have on August 2.” Id. at 296. Without this
permission, the filing had “no legal effect” and “cannot toll
the statute of limitations period.” Id. The Fifth Circuit
further noted that, while Rule 5 would deem a technically
deficient pleading “filed,” because, “[a]s the more specific
rule with respect to amended pleadings, Rule 15(a), not Rule 5[]
governs.” Id.
Likewise, in this case, although the Title VII claims were
timely when the Plaintiffs moved for leave to file the amended
complaint, the motion for leave was never granted. The amended
complaint was thus never filed and lacks the ability to toll the
limitations period. This conclusion is consistent with the
general rule that a Title VII complaint that has been filed but
then dismissed without prejudice does not toll the 90-day
limitations period. See, e.g., O’Donnell v. Vencor Inc., 466
F.3d 1104, 1111 (9th Cir. 2006) (“In instances where a complaint
is timely filed and later dismissed, the timely filing of the
complaint does not toll or suspend the 90-day limitations
period.” (internal quotation marks omitted)); Simons v. Sw.
Petro-Chem, Inc., 28 F.3d 1029, 1030-31 (10th Cir. 1994) (same). 5
5
We have approved of this reasoning in several unpublished
cases. See Quinn v. Watson, 119 Fed. App’x 517, 518 n.* (4th
Cir. 2005) (“In instances where a complaint is timely filed and
later dismissed, the timely filing of the complaint does not
‘toll’ or suspend the ninety-day limitations period.”).
9
As the Seventh Circuit has explained—outside the Title VII
context—“if the suit is dismissed without prejudice, meaning
that it can be refiled, then the tolling effect of the filing of
the suit is wiped out and the statute of limitations is deemed
to have continued running from whenever the cause of action
accrued, without interruption by that filing.” Elmore v.
Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000).
B.
The Plaintiffs emphasize several lines of cases in an
effort to avoid this result. 6 First, the Plaintiffs correctly
note that courts have generally concluded that when a motion for
leave to amend is later granted, the amended complaint is deemed
timely even if the court’s permission is granted after the
limitations period ends. This rule has been explained as
follows:
As a party has no control over when a court renders
its decision regarding the proposed amended complaint,
the submission of a motion for leave to amend,
properly accompanied by the proposed amended complaint
that provides notice of the substance of those
amendments, tolls the statute of limitations, even
6
As part of this argument, in their reply brief, the
Plaintiffs for the first time assert that this case is analogous
to situations in which plaintiffs file a request to proceed in
forma pauperis (IFP) in conjunction with their complaint. Of
course, a party waives an argument by failing to raise it below,
United States v. Evans, 404 F.3d 227, 236 n.5 (4th Cir. 2005),
and by waiting to raise it until the reply brief, Cavallo v.
Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996).
10
though technically the amended complaint will not be
filed until the court rules on the motion.
Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993). The
Plaintiffs contend that this rule applies here. The Plaintiffs’
argument on this point faces several problems, however. First,
in each of the cases the Plaintiffs rely on, the motion for
leave to amend was granted and, as the district court explained,
the timeliness of the amended complaint in such cases “stems
from the confluence of the plaintiff’s timely preservation of
the issue for the court’s consideration . . . and the court’s
inherent power to enter a nunc pro tunc order on that motion
that retroactively causes the proposed amended complaint to be
considered filed as of the date of the motion.” (J.A. 511 n.3).
Indeed, while several of the cases, e.g., Moore, reference
“tolling,” earlier cases note that “where the petition for leave
to amend . . . has been filed prior to expiration of the statute
of limitations, while the entry of the court order and the
filing of the amended complaint have occurred after,” the
“amended complaint is deemed filed within the limitations
period.” Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172, 1173
(8th Cir. 1989) (emphasis added). 7 The Plaintiffs’ amended
7
This approach stems from a Fifth Circuit case that
predates the Federal Rules of Civil Procedure. Rademaker v.
E.D. Flynn Exp. Co., 17 F.2d 15, 17 (5th Cir. 1927).
11
complaint cannot be “deemed filed” in a timely fashion because
it was never accepted by the district court. Moreover, none of
these cases suggests that denying a motion to file an amended
complaint in an earlier action in another jurisdiction tolls the
statute of limitations for a newly-filed action. 8
Second, the Plaintiffs rely on Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345 (1983), and American Pipe & Construction
Co. v. Utah, 414 U.S. 538 (1974). In those cases, the Supreme
Court held that during the pendency of a class certification,
the statute of limitations on any individuals’ claims that would
be covered by the proposed class is tolled. 9 The Plaintiffs
8
In cases involving the relation back of an amended
complaint to an “original pleading,” under Rule 15(c), courts
have held that a complaint in one case may not relate back to a
complaint in another case to avoid the statute of limitations.
Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 994 (8th
Cir. 1989) (“Rule 15(c) concerns amendments to pleadings. Its
plain language makes clear that it applies not to the filing of
a new complaint, but to the filing of an amendment”); Bailey v.
Northern Ind. Pub. Serv. Co., 910 F.2d 406, 413 (7th Cir. 1990)
(“Rule 15(c), by its terms, only applies to amended pleadings in
the same action as the original, timely pleading.”).
9
Some courts have referred to American Pipe/Crown, Cork &
Seal as “legal tolling” because it “is derived from a statutory
source” as opposed to the “judicially created” doctrine of
equitable tolling. Arivella v. Lucent Technologies, Inc., 623
F.Supp.2d 164, 176 (D. Mass. 2009). See also Joseph v. Wiles,
223 F.3d 1155, 1166-67 (10th Cir. 2000) (same). We have
previously referred to them as a species of equitable tolling.
Bridges, 441 F.3d at 211 (“The American Pipe/Crown, Cork & Seal
equitable tolling rule is a limited exception to the universal
rule that statutes of limitations are impervious to equitable
exceptions.”).
12
failed to make this argument until their motion for
reconsideration in the district court, and “Rule 59(e) motions
may not be used . . . to raise arguments which could have been
raised prior to the issuance of the judgment.” Pac. Ins. Co. v.
Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
Regardless, we believe this argument is without merit. American
Pipe/Crown, Cork & Seal tolling applies when a class action is
commenced by the filing of a complaint and tolls an individual’s
statute of limitations, not the statute of limitations for the
proposed class. 10 Bridges, 441 F.3d at 210 (noting that, under
American Pipe/Crown, Cork, & Seal, “all class members’ claims
are tolled at the time the class action is filed, regardless of
whether the members eventually intervened or filed new
actions”). Under this rule, “[o]nce the statute of limitations
has been tolled, it remains tolled for all members of the
putative class until class certification is denied.” Crown,
Cork & Seal, 462 U.S. at 354. The basis for tolling in those
cases was the successful operation of Rule 23 and the need to
avoid the filing of a multiplicity of suits by thousands of
10
Courts have consistently concluded that American
Pipe/Crown, Cork & Seal do not permit class actions to toll the
statute of limitations for additional classes to be stacked upon
them. See Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir.
1998) (“Plaintiffs may not stack one class action on top of
another and continue to toll the statute of limitations
indefinitely.”).
13
plaintiffs in a putative class action. Id. at 349-51. That
concern is absent in this case. Moreover, as previously
discussed, the Title VII claims in this case were never “filed,”
because the Alabama district court denied the motion for leave
to file the amended complaint. Even assuming American
Pipe/Crown, Cork, & Seal applied to a separate class action in a
different venue, the rule still requires the actual filing of an
action in the first instance, which never occurred in this case
with respect to the Title VII claims.
Accordingly, we find that neither the Rule 15 cases the
Plaintiffs rely on—which are more properly characterized as
dealing with nunc pro tunc power than tolling—nor American
Pipe/Crown Cork & Seal provide relief for the untimely filing of
the Plaintiffs’ complaint.
C.
The Plaintiffs contend in the alternative that the statute
of limitations should be equitably tolled in this case.
Equitable tolling is a narrow exception to statutes of
limitations and is appropriate “where the defendant has
wrongfully deceived or misled the plaintiff in order to conceal
the existence of a cause of action.” English v. Pabst Brewing
Co., 828 F.2d 1047, 1049 (4th Cir. 1987). The doctrine operates
to keep defendants from engaging in “misconduct that prevents
the plaintiff from filing his or her claim on time.” Id. In
14
contrast, equitable tolling is not appropriate in cases where
“the claimant failed to exercise due diligence in preserving his
legal rights.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
96 (1990). We review the district court’s denial of equitable
tolling for abuse of discretion. Chao v. Virginia Dep’t of
Transp., 291 F.3d 276, 279-80 (4th Cir. 2002).
Having reviewed the record, we agree with the district
court that equitable tolling is inappropriate in this case, and
we certainly can discern no abuse of discretion in that
decision. Our caselaw on equitable tolling has consistently
focused on external factors hampering the ability to file a
timely claim, and no such factor is present in this case. See
e.g., Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th
Cir. 2004) (quoting Kokotis v. United States Postal Serv., 223
F.3d 275, 280 (4th Cir. 2000) (noting equitable tolling “is not
appropriate, here, because [the plaintiff] did not allege that
[the defendant] deceived or misled her . . . ‘in order to
conceal the existence of a cause of action.’”)).
The Plaintiffs rely heavily on Burnett v. New York Central
Railroad Co., 380 U.S. 424 (1965), but, like the district court,
we believe that case is inapposite. In Burnett, the plaintiff
timely filed an action under the Federal Employers’ Liability
Act (FELA) in an Ohio state court. Id. at 424. The state court
dismissed the action for improper venue, and the plaintiff
15
refiled eight days later in federal court. Id. at 425. The
state action was timely filed, but the federal action was not.
Id. at 426. The Court held that equitable tolling was
appropriate because “when a plaintiff begins a timely FELA
action in state court having jurisdiction, and serves the
defendant with process and plaintiff’s case is dismissed for
improper venue, the FELA limitation is tolled during the
pendency of the state suit.” Id. at 434-35. The Court found it
significant that the plaintiff “did not sleep on his rights” but
timely filed an action in state court, that service of process
was made, that Ohio permitted waiver of venue objections, and
that the defendant railroad itself had previously waived
improper venue. Id. at 429. As the district court properly
noted, however, there are “key factual and procedural
distinctions” between Burnett and this case, namely that “unlike
in Burnett, no timely Title VII action was ever actually
commenced” because the motion to amend was never granted. (J.A.
516).
In affirming the district court’s conclusion on equitable
tolling, we emphasize that the Plaintiffs had two avenues
available to ensure that their rights were vindicated in this
litigation. First, to the extent the Plaintiffs believe the
district court in Alabama committed legal error in denying the
motion to amend, they could have appealed that decision to the
16
Eleventh Circuit. The Plaintiffs are asking us to equitably
toll the statute of limitations, not because they were misled by
Dollar Tree, or provided inaccurate information by the EEOC, but
because of an unfavorable judicial decision—a decision that they
have not appealed. Second, the Plaintiffs could have protected
themselves by timely filing an action in the Eastern District of
Virginia—an option still available at the time the district
court indicated that it was likely to reject the motion for
leave to amend. The Plaintiffs declined to do so even though,
in their own motion for “Consent to Sever,” they recognized the
potential statute of limitations problems. As the district
court explained, the “procedural details . . . highlight the
gamble that plaintiffs’ counsel knowingly made. . . .
Plaintiffs’ counsel lost that gamble when [the Alabama district
court] denied the motion for leave to amend.” (J.A. 519).
Accordingly, under these particular circumstances, we agree
with the district court that equitable tolling was not
appropriate.
III.
For the foregoing reasons, we affirm the district court’s
grant of Dollar Tree’s motion to dismiss.
AFFIRMED
17
DAVIS, Circuit Judge, dissenting:
Not least because I am confident that Chief District Judge
Sharon Lovelace Blackburn of the United States District Court
for the Northern District of Alabama could not remotely have
believed, when she dismissed Appellants’ Title VII claims in
lieu of transferring venue to the Eastern District of Virginia,
that these Appellants would arrive at the Fourth Circuit only to
find the courthouse door locked, I respectfully dissent.
The majority ignores the compelling facts of this case and
principally relies on outside circuit authority that is not on
point to reach a fundamentally unfair result.
First, the majority unfairly takes the Appellants and their
counsel to task for filing their Title VII claims in the
Northern District of Alabama, suggesting that the outcome is
justified here because of their own inaction. The majority
suggests the Appellants’ consent to severance was a
“recogni[tion of] the potential statute of limitations
problems,” Maj. Op. at 4, 17, but fails to mention that the
Appellants only consented to severance because of the original
(senior district) judge’s “standing instruction against
assignment of any case with Rule 23 allegations.” J.A. 257.
Indeed, in the consent to severance, they argued that venue was
proper in the Northern District of Alabama.
18
Perhaps more problematic, the majority emphasizes that the
district court “signal[ed]” to the Appellants “about their need
to file in the proper district,” Maj. Op. at 5, as if the
signalling had the legal effect of a final decision on the
matter. 1 The Appellants, however, did not know at that point that
venue was “improper” in the Northern District of Alabama and
cannot be faulted for failing to act on the judge’s mere passing
comments during the hearing. Moreover, counsel had to know, and
it seems they did know, 2 that the district court at this point
could have, and should have, transferred the Title VII claims.
1
I am quite uncertain what to make of the majority’s
observation that Appellants “[f]ail[ed] to recognize the Alabama
district court’s signal about their need to file in the proper
district,” Maj. Op. at 5, or how, precisely, that supports the
outcome reached by the majority. It is true that at the hearing
on the motion to amend in this case, Chief Judge Blackburn said
what the majority attributes to her. But, local legal culture
being whatever it is in the Northern District of Alabama, the
judge also referred during the hearing to counsel by his
nickname, “Bob.” J.A. 263. I have previously acknowledged that
“local legal culture drives [certain] practices.” Robinson v.
Wix Filtration Corp. LLC, 599 F.3d 403, 414 (4th Cir. 2010)
(Davis, J., concurring); Priestley v. Astrue, 651 F.3d 410, 420
(4th Cir. 2011) (Davis, J., concurring). Nevertheless, deciding
cases in this circuit on the basis of ostensible “signals” sent
by out-of-circuit district judges to out-of-circuit lawyers in
cases heard outside this circuit does not commend itself to me.
2
See J.A. 255 (citing, in consent to severance, a case for
the proposition that “the ‘interests of justice generally
instructs courts to transfer cases to the appropriate judicial
district, rather than dismiss them’”) (brackets and ellipses
omitted); Appellants’ Br. 3 (“Rather than transferring such
claims, however, Chief Judge Blackburn dismissed them without
prejudice to refiling in the Eastern District of Virginia.”).
19
See 28 U.S.C. §§ 1404(a), 1406(a); Goldlawr, Inc. v. Heiman, 369
U.S. 463, 467 (1962); see also J.A. 517 (district judge in the
Eastern District of Virginia noting that the Court’s analysis in
Goldlawr “could perhaps have been employed” to justify granting
the motion and then transferring). And furthermore, the majority
seems to believe that most of the Appellants’ claims could have
been “saved” at this point by filing elsewhere. See Maj. Op. at
5 (“[O]nly 76 days had passed since the EEOC issued the April 24
right-to-sue letters.”). The majority turns a blind eye to the
whole truth: Only two named plaintiffs received the April 24
right-to sue letters; more than 90 days had passed since 29 of
the named plaintiffs had received the right-to-sue letters.
Second, the majority conveniently omits important facts
that show the fundamental unfairness of the result it reaches.
The Appellants did not engage in delay or unwisely “gamble” on
their claims by engaging in baseless litigation in the Northern
District of Alabama. Maj. Op. at 17 (quoting J.A. 519). Rather,
they had a sound legal basis for their belief that venue was
proper for the Title VII claims in the Northern District of
Alabama. They asserted that under Title VII each named plaintiff
did not need to independently show venue was properly laid in
the district; rather, it was enough for at least one named
plaintiff to be properly venued. See Appellants’ Br. 40. They
also asserted that they could rely on venue being proper for six
20
of the named plaintiffs, or “class representatives,” J.A. 371,
while the remaining non-Alabama named plaintiffs could remain as
class members until the court decided whether there would be a
class. See Appellants’ Br. 40. They also relied on a pendent
venue argument. See id. Chief Judge Blackburn rejected these
arguments, but not on the basis of well-established Eleventh
Circuit precedent. 3 Rather, she relied on an unpublished Eleventh
Circuit case, 4 district court cases from other circuits, and the
doctrine of judicial estoppel. Moreover, as the Appellants point
3
Indeed, in making the final argument that leave should be
denied because venue was improper in its opposition, Dollar Tree
urged the court to “adopt the view of its sister courts in other
Circuits and require that each named plaintiff individually
satisfy the express venue provisions set forth in Title VII”
“[i]n the absence of Eleventh Circuit authority.” J.A. 241
(emphasis added).
4
The Eleventh Circuit has said,
“Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive
authority.” 11th Cir. R. 36–2. Furthermore, “[t]he
court may cite to [unpublished opinions] where they
are specifically relevant to determine whether the
predicates for res judicata, collateral estoppel, or
double jeopardy exist in the case, to ascertain the
law of the case, or to establish the procedural
history or facts of the case.” 11th Cir. R. 36, I.O.P.
7.
Borden v. Allen, 646 F.3d 785, 808 n.27 (11th Cir. 2011); see
also Boutwell v. Advance Constr. Servs., No. 07-0447-WS-C, 2007
WL 2988238, at *4 n.4 (S.D. Ala. Oct. 11, 2007) (“Even if
defendant’s construction of [Pinson v. Rumsfeld, 192 F. App’x
811 (11th Cir. 2006), the case relied upon by Chief Judge
Blackburn] were valid, which it is not, the fact remains that
Pinson is unpublished and therefore nonbinding.”).
21
out in their brief, “in an identical case,” a district judge in
the Northern District of Alabama had ruled “that out-of-state
Store Managers for a rival dollar store chaing [sic] could bring
their Title VII claims in the same district as their parallel
EPA claims.” Appellants’ Br. 36-37 (citing Colvert v.
Dolgencorp, Inc., Order, No. 2:06-cv-465-veh (N.D. Ala. Nov. 30,
2007)). Thus, despite having a legal foundation for filing in
the Northern District of Alabama, because Chief Judge Blackburn
denied their motion to amend and failed to transfer their
claims, even though Appellants filed the instant complaint the
very next day in the Eastern District of Virginia, Appellants
have been denied their deserved day in court. This is
unconscionable.
Third, the majority compounds this fundamental injustice by
relying principally on outside circuit authority, which is not
on point, instead of more compelling reasoning behind cases
cited by the Appellants, which are entirely consistent with the
letter and the spirit of the Federal Rules of Civil Procedure
and the purpose of statutes of limitations generally. 5 The
5
The Fourth Circuit case the majority relies upon to reach
its conclusion is inapposite. In Bridges v. Department of
Maryland State Police, 441 F.3d 197, 206-07 (4th Cir. 2006),
this court had no reason to directly construe Rule 15, but
instead considered whether would-be plaintiffs had standing to
appeal.
22
majority relies principally on U.S. ex rel. Mathews v.
HealthSouth Corp., 332 F.3d 293 (5th Cir. 2003), which concerned
the requirement under Rule 15 to request leave of the court
before filing an amended complaint. There, the plaintiff only
ever properly filed the correct documents, a motion requesting
leave to amend and the amended complaint, after the limitations
period had run. Id. at 295. Thus, the court had no need to
address whether, as here, the limitations period is tolled where
a party moves for leave to file the amended complaint when the
claims are timely but the motion for leave is not granted.
The cases relied on by the Appellants, which the majority
rejects, are also admittedly not directly on point, but are more
consistent with the purpose behind the rules of civil procedure
and limitations periods generally. As the majority notes, courts
have generally concluded that, when a motion for leave to amend
is later granted, the amended complaint is deemed timely even if
the court’s permission is granted after the limitations period
ends. At least one of the underlying reasons justifying this
result is that plaintiffs “ha[ve] no control over when a court
renders its decision regarding the proposed amended complaint.”
Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993); see also
Sellers v. Butler, No. 02-3055-DJW, 2007 WL 2042513, at *12 (D.
Kan. July 12, 2007) (“To hold otherwise would punish the
plaintiff for the Court’s unavoidable delay in issuing the order
23
granting leave to amend the complaint.”). This fairness concern
applies equally where the motion for leave to amend is granted
as where it is denied; indeed, the concern is heightened where
the motion is ultimately denied. It is particularly apt here.
Allowing tolling under this rule is more consistent with
the policies behind the Federal Rules of Civil Procedure. Rule
1, which “governs all the rest,” Aikens v. Ingram, 652 F.3d 496,
519 (4th Cir. 2011) (King, J., dissenting), provides that the
Federal Rules of Civil Procedure “should be construed and
administered to secure the just, speedy, and inexpensive
determination of every action and proceeding.” The Appellants’
decision to amend their complaint to add their parallel Title
VII claims to the pending EPA claims in the Northern District of
Alabama is wholly consistent with this rule. It was also
consistent with Rule 23, which “permits and encourages class
members to rely on the named plaintiffs to press their claims”
and to avoid a “needless multiplicity of actions,” Crown, Cork &
Seal Co. v. Parker, 462 U.S. 345, 351-53 (1983), and Rule 15,
which is to be applied liberally to ensure “that pleadings are
not an end in themselves but are only a means to assist in the
presentation of a case to enable it to be decided on the
merits,” Wright et al., Federal Practice and Procedure § 1473
(3d ed. 2010). Furthermore, the defendants had notice and would
not have been prejudiced in any fashion by allowing the case to
24
proceed to the merits. 6 See Crown, Cork & Seal, 462 U.S. at 352
(“Limitations periods are intended to put defendants on notice
6
In dismissing this case, the district judge in the Eastern
District of Virginia observed:
The court notes at the outset of this discussion
plaintiffs’ position that any claim by defendant of
prejudice in this connection is dubious. As noted
above, this case involves substantially the same named
plaintiffs (and putative plaintiff class) as those in
Collins I, suing the same defendant for a claim
arising out of the same conduct set out in the
original complaint in Collins I. Moreover, defendant
clearly had actual notice within the statute of
limitations period--in the form of the motion for
leave to amend in Collins I, which attached the
proposed amended complaint--of plaintiffs’ intent to
pursue a Title VII claim in addition to its existing
Equal Pay Act claim. It is therefore entirely
arguable, and even somewhat persuasive, that
permitting this case to proceed would not offend the
admittedly strong policy considerations underlying the
statute of limitations defense.
J.A. 514-15.
Similarly, in denying the Appellee’s post-judgment motion
for attorney’s fees and sanctions, the lower court had this
trenchant observation:
Indeed, in a sense, plaintiffs were merely doing what
Judge Blackburn’s decision on their motions for leave
to amend the Collins I complaint forced them to do;
namely, to bring their Title VII claim as a separate
action in this court, where, it should be noted,
defendant had repeatedly argued venue was proper. It
is somewhat ironic that defendant now seeks to
characterize as vexatious multiplication of
proceedings the very act that it had previously
chastised plaintiffs for not doing; namely, filing
their Title VII claim against defendant in this court
instead of in the Northern District of Alabama.
(Continued)
25
of adverse claims and to prevent plaintiffs from sleeping on
their rights . . . .”). The majority’s ruling contorts the
purposes of these rules by encouraging multiple filings in
multiple courts, deterring similar plaintiffs in collective
actions from bringing parallel claims, and ensuring that this
case is not decided on the merits. 7
At the end of the day, I am confident that if Chief Judge
Blackburn had any inkling whatsoever that in dismissing rather
than transferring this action, she would foreclose further
proceedings, she would take it all back. I would act on that
confidence and reverse the order dismissing this case and remand
for further proceedings. 8
Collins v. Dollar Tree Stores, Inc., Opinion and Order, No.
2:09-cv-00486-JBF, at 21-22 (E.D. Va. May 28, 2010) (final
emphasis added).
7
Plainly, under the circumstances of this case, we should
allow “the limitations period to be tolled during the pendency
of related litigation because it [is] consistent with the
[remedial Title VII] statutory scheme and equitable principles
to do so.” Bowen v. City of New York, 476 U.S. 467, 479 n.11
(1986) (alterations added); see also Honda v. Clark, 386 U.S.
484, 501 (1967) (“We consider it much more consistent with the
overall congressional purpose to apply a traditional equitable
tolling principle, aptly suited to the particular facts of this
case and nowhere eschewed by Congress, to preserve petitioners’
cause of action.”).
8
My confidence is bolstered by Chief Judge Blackburn’s
recognition of the potential harshness of the result, see J.A.
371, and allusion to the alleged “futility” of the Appellants’
Title VII claims. But see J.A. 283 (Chief Judge Blackburn
(Continued)
26
Respectfully, I dissent.
recognizing that Appellants’ time to file a complaint in another
venue might have run). But in the circumstances of this case, or
any case for that matter, the ostensible “futility” of a claim
for purposes of Rule 15’s liberal amendment provisions bespeaks
the “legal insufficiency” of such a claim, not the simple fact
of mislaid venue. Cf. Burger King Corp. v. Weaver, 169 F.3d
1310, 1320 (11th Cir. 1999). After all, the very purpose of the
venue transfer provisions of 28 U.S.C. §§ 1404(a) and 1406(a) is
to correct the kind of inconsequential error in selecting venue
as is apparent in this case.
A simple thought experiment demonstrates the correctness of
such an outcome. Imagine that a putative class action was timely
filed under Title VII laying venue in the Western District of
North Carolina but where, arguably, venue lies only in the
District of South Carolina. Several months after a hearing on
the defendants’ contested motion to dismiss (or, as here,
alternatively, to transfer) for improper venue, and after the
ninety-day period for filing a new action had expired, the
district court dismisses the case rather than transferring it to
South Carolina. I have no doubt that this court would reverse a
decision of the South Carolina district court dismissing a
newly-filed action in that district, whether on the basis of
legal tolling, equitable tolling, or a plain vanilla abuse of
discretion determination. The same result should obtain here.
27