Escobedo v. Applebees
| Decision Date | 04 June 2015 |
| Docket Number | No. 12–16244.,12–16244. |
| Citation | 787 F.3d 1226 |
| Parties | Maria ESCOBEDO, Plaintiff–Appellant, v. APPLEBEES, Defendant, and Apple American Group; Apple Nevada, LLC, Defendants–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Katelin Eastman (argued) and Sarah Gerdes (argued), Pepperdine University School of Law, Ninth Circuit Appellate Advocacy Clinic, Malibu, CA; Jeremy B. Rosen, Horvitz & Levy LLP, Encino, CA, for Plaintiff–Appellant.
Melissa Leigh Griffin (argued) and Beth Freuchtenicht Aney, San Francisco, CA, for Defendants–Appellees.
Appeal from the United States District Court for the District of Nevada, Philip M. Pro, Senior District Judge, Presiding. D.C. No. 2:11–cv–00895–PMP–CWH.
Before: KIM McLANE WARDLAW and RICHARD A. PAEZ, Circuit Judges, and MICHAEL A. PONSOR,* Senior District Judge.
Appellant Maria Escobedo, acting pro se, submitted her complaint, charging Appellee Apple Nevada with sexual harassment and discrimination, to the U.S. District Court for the District of Nevada on June 2, 2011. The complaint arrived at the clerk's office sixty-nine days after Escobedo received her right-to-sue letter from the Equal Employment Opportunity Commission, well within the ninety-day limit set forth in 42 U.S.C. § 2000e–5(f)(1).1
Along with her complaint, Escobedo filed an application to proceed in forma pauperis (“IFP”). Thirty-four days later, on July 6, 2011, outside the ninety-day deadline, a magistrate judge first heard argument on the application and erroneously denied it, based upon ungrounded assumptions regarding the availability of Escobedo's husband's resources. During the hearing, however, the magistrate judge told Escobedo that she would have an additional thirty days to pay the $350 fee. Escobedo paid the fee on August 5, 2011, within the allotted thirty days. Despite this, the district court subsequently dismissed her complaint for violating the ninety-day limitations period.
Escobedo (represented by counsel) contends, first, that the district court erred in dismissing her complaint as untimely and, second, that the magistrate judge erred in denying her IFP application. We agree on both points and reverse.2
We now hold that the filing date of a complaint is the date it is delivered to the clerk, whether it is submitted with or without an IFP application. Obviously, if an IFP application is submitted with the complaint in lieu of the filing fee, and the application is thereafter denied, the district court will be free to dismiss the complaint if the fee is not paid within a reasonable time following the denial. The filing date, however, will be the date on which the complaint was originally delivered to the clerk's office along with the IFP application.
We further hold that it is an abuse of discretion to deny an IFP application based upon a spouse's financial resources, unless there is a reasonable inquiry into (a) whether the spouse's resources are actually available to the would-be plaintiff and (b) whether the spouse in fact has sufficient funds, given his or her own expenses, to assist in paying the fee.
Escobedo worked as a prep cook for seven years at an Applebee's restaurant in Las Vegas, Nevada owned by Apple Nevada. On November 3, 2010, Escobedo reported to the Equal Employment Opportunity Commission (EEOC) that her employer had subjected her to sexual harassment, discrimination on the basis of her gender and national origin, and retaliation. A review of her claims reveals that they could not, by any means, be characterized as frivolous. EEOC records apparently suggest that a letter may have gone out to Escobedo on December 16, 2010, containing a Notice of Right to Sue. Escobedo never received it. On January 30, 2011, Applebee's fired Escobedo. In March 2011, concerned that she had not heard anything, Escobedo contacted the EEOC. On March 25, 2011, the EEOC sent out, and Escobedo for the first time received, a copy of the Notice of Right to Sue3
On June 2, 2011, sixty-nine days after receiving the right-to-sue letter, Escobedo submitted her pro se complaint to the U.S. District Court for the District of Nevada, bringing claims of sexual harassment and discrimination on the basis of gender and national origin against Applebee's.4 With her complaint, Escobedo filed an IFP application, in which she certified that she could not pay the filing fee for her complaint because of her poverty. She stated in her application that she had income of $210 per week and paid $684 per month in rent, as well as $15 a month on existing credit card debts. Given that these expenses left her with less than $150 per month for all other expenses, including food and medical costs, Escobedo contended that the $350 filing fee was sufficiently onerous that it should be waived.
On July 6, 2011, thirty-nine days after Escobedo filed her complaint, and 103 days after receiving her March 25 right-to-sue letter, Escobedo obtained a hearing before a magistrate judge on her IFP application. When asked by the judge how she paid $684 per month for rent when she only received $180 a week5 in unemployment compensation, Escobedo replied that her husband helped with her housing expense. The magistrate judge next inquired into her husband's monthly income, which Escobedo stated was $1800 per month in social security benefits. Based on this information and the amount of Escobedo's income, the magistrate judge denied Escobedo's IFP application. The record does not reveal any inquiry by the magistrate judge as to whether her husband's financial resources were actually available to Escobedo (beyond the help with the cost of housing), or whether her husband had other offsetting legitimate expenses that would reduce or eliminate his ability to assist in paying the filing fee.
Following this, the magistrate judge set a deadline of August 5, 2011, for Escobedo to pay the fee. In this portion of the hearing, the magistrate judge and Escobedo had the following ambiguous exchange:
Escobedo managed to pay the filing fee on August 5, 2011, within the district court's time frame, but 133 days following the receipt of the right-to-sue letter. Even if the ninety-day clock were tolled during the thirty-four days while Escobedo's IFP application awaited a ruling (to which Applebees vigorously objects), Escobedo would still be nine days outside the ninety-day limitations period, if we were to agree with the lower court that the complaint could only be deemed “filed” once the fee was paid and not when it was first delivered to the clerk.
On March 8, 2012, Apple Nevada filed a motion to dismiss Escobedo's Amended Complaint. Escobedo filed a pro se opposition. On May 15, 2012, the district court heard argument on the motion and granted it both as to Escobedo's complaint and as to her amended complaint. The district court construed the complaint's filing date to be the date on which the filing fee was paid, August 5, 2011, and not the date the complaint was originally delivered to the clerk's office, June 2, 2011. Though accepting that the statute of limitations may have been tolled while the IFP application awaited a ruling, the district court found that, due to the time that had elapsed between the date of the magistrate judge's denial of the application and the date on which she paid the fee, Escobedo's complaint was actually filed nine days outside the statute of limitations period. Entry of judgment in favor of Apple Nevada followed.
Escobedo filed a timely appeal on May 24, 2012, and on October 22, 2013, our court appointed counsel. Along with the Pro Bono Order, we requested that the parties address the relevance of the constructive filing rule, as explained in Loya v. Desert Sands Unified Sch. Dist., 721 F.2d 279 (9th Cir.1983), and as applied to an analogous situation in Baker v. La Cumbre Mgmt. Co., Inc., 9 Fed.Appx. 752 ( [9th Cir.]2001) (unpublished). We have jurisdiction pursuant to 28 U.S.C. § 1291, which extends to an appeal of a final decision of a United States district court.
The dispute regarding the timeliness of Escobedo's complaint presents a question of law, which we review de novo.
Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir.2003) ; Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th Cir.1986).
As noted above, the district court assumed that the complaint in this case, despite its timely delivery to the clerk, could not be considered “filed” until the $350 fee had either been paid or waived as a result of a favorable ruling on the IFP application. Although it recognized that the pendency of the IFP application tolled the statute of limitations up until the date the magistrate judge ruled—a point Apple Nevada takes issue with—the district court determined...
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...for proceeding IFP, the plaintiff's or petitioner's affidavit must allege poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Granting a plaintiff or petitioner leave to proceed IFP may be proper, for example, when the affidavit demonstrates that paying court......
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...This appeal was timelyTurning to the particular application of Rule 4(a)(4) before us: We recently addressed a similar issue in Escobedo v. Applebees , a sex discrimination case. There, Escobedo delivered her complaint to the clerk's office sixty-nine days after receiving her right-to-sue l......
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