Madison v. BP Oil Co.

• Decision Date: 30 May 1996
• Docket Number: Civ. No. 95-0350-AH-C.
• Citation: 928 F. Supp. 1132
• Parties: Felicia P. MADISON, Plaintiff, v. BP OIL COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

928 F. Supp. 1132

Felicia P. MADISON, Plaintiff, v. BP OIL COMPANY, et al., Defendants.

Civ. No. 95-0350-AH-C.

United States District Court, S.D. Alabama, Southern Division.

May 30, 1996.

Ronnie L. Williams, Mobile, AL, for plaintiff.

Felicia P. Madison, Mobile, AL, pro se.

Kirk C. Shaw, Mobile, AL, Broox G. Holmes, Jr., Mobile, AL, for defendants.

ORDER

HOWARD, District Judge.

After due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B), (Doc. 48), is ADOPTED as the opinion of this Court, excluding such portions of the Report and Recommendation addressing Defendant Jones' alternatively-filed motion for summary judgment (on which the Court makes no ruling). Accordingly, all claims asserted against Defendant Jones in the above-styled action are DISMISSED WITHOUT PREJUDICE, and Plaintiff's "Motion For Leave to Serve Summons and Process out of Time," (Doc. 28), is DENIED.

DONE.

REPORT AND RECOMMENDATION

CASSADY, United States Magistrate Judge.

This cause is before the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) on defendant Maxa Jones' motion to dismiss on grounds of insufficiency of service of process and failure to state a claim, Fed.R.Civ.P. 12(b)(5) & (6); in the alternative, the defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56. Upon consideration of the arguments of counsel at oral argument before the undersigned on January 31, 1996 and all pertinent materials contained in this file, the Magistrate Judge recommends that this cause of action be dismissed with respect to Maxa Jones or, alternatively, that summary judgment be entered in favor of defendant Jones.

FINDINGS OF FACT

1. Felicia Madison was notified by letter dated February 23, 1995, that the Equal Opportunity Employment Commission had determined that the evidence obtained during the course of its investigation did not establish that the respondent, BP Oil Company, violated Title VII of the Civil Rights Act of 1964, as amended. (See Doc. 1, DETERMINATION) Madison was notified that she could pursue the matter further but only by filing suit "AGAINST THE RESPONDENT(S) NAMED IN THE CHARGE IN FEDERAL DISTRICT COURT WITHIN (90) DAYS" of receipt of the right-to-sue letter. (Id.)

2. Felicia Madison constructively filed a pro se complaint in this Court on May 4, 1995, and therein listed as defendants BP Oil Company and Maxis (sic) Jones and stated the address of both to be 2810 Government Boulevard, Mobile, Alabama 36606. (See Doc. 1) Plaintiff alleged therein that the defendants discriminated against her on account of her race in violation of Title VII of the Civil Rights Act of 1964. (See id.)

3. Madison attached to the complaint a motion to proceed without prepayment of fees and costs. (See Doc. 2) Plaintiff's in forma pauperis motion was denied by order dated May 17, 1995, and she was ordered to remit to the Clerk of the Court the $120.00 filing fee by June 19, 1995, or otherwise be subject to dismissal of her action. (Doc. 4) This order provided further elucidation of court procedures, as follows:

Once the filing fee is paid, the Clerk is directed to provide the necessary waiver documents to Plaintiff so Plaintiff may send them to Defendant. The Clerk's Office can provide information regarding the waiver documents; however, the personnel of the Clerk's Office are not attorneys and cannot give legal advice.

. . . . .

It is Plaintiff's responsibility to monitor this action to make sure that a person whom Plaintiff wishes to be a Defendant has been served or has waived service.

(Id.)

4. Madison paid the $120.00 filing fee on June 1, 1995. (Docket Sheet) Plaintiff's payment of the filing fee constituted filing of the complaint for purposes of Fed.R.Civ.P. 4 and therefore, plaintiff had 120 days from June 1, 1995, or until September 29, 1995, to serve all defendants named in the complaint.

5. A request for waiver of service of summons as to defendant BP Oil Company was mailed to the plaintiff by the Clerk's Office on June 9, 1995. (Docket Sheet; see also Doc. 5)

6. Defendant BP Oil answered the complaint on August 17, 1995. (Doc. 6) In the answer BP Oil admits that plaintiff's manager was Maxa Jones but denied that Jones discriminated against Madison. (Id., ¶ 9)

7. Ronnie Williams, Esquire, filed a notice of appearance as counsel of record for the plaintiff on September 15, 1995. (Doc. 8) The certificate of service on the notice clearly establishes that Mr. Williams became plaintiff's counsel on or before September 13, 1995. (See id.)

8. The sole claim set forth by the plaintiff in the report of the parties' planning meeting, filed on October 13, 1995, is that BP Oil violated her rights "protected by Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1964." (Doc. 9, p. 5) The parties did agree in this document that plaintiff should have until November 17, 1995 to join additional parties and to submit any amendments to the pleadings. (Id., p. 3) In accordance with this agreement, the undersigned's Rule 16(b) scheduling order of October 18, 1995 set a November 17, 1995 deadline for the plaintiff to file motions for leave to amend the pleadings and to join other parties. (Doc. 10)

9. Plaintiff filed a motion for leave to file an amended complaint on October 20, 1995. (Doc. 11) This motion was granted by the undersigned on October 25, 1995 (id.; see also Doc. 12) and the amended complaint, which had accompanied the motion, was filed by the Clerk's Office on October 25, 1995 (see Doc. 13). Count I of the amended complaint sets forth the same cause of action against defendant BP Oil as alleged in the pro se complaint, i.e., "unlawful racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991." (Doc. 13, p. 4) Count II of the amended complaint sets forth for the first time a cause of action against one of the defendants listed in the pro se complaint, Maxa Jones, and alleges that "Defendant Jones has engaged in racial discrimination against Plaintiff in violation of 42 U.S.C. Section 1981 as amended by the Civil Rights Act of 1991." (Id.)

10. Maxa Jones was served with the amended complaint on November 4, 1995 (Doc. 21, Affidavit of Maxa Jones) at the following address: 2810 Government Boulevard, Mobile, Alabama 36606 (see Docs. 14 & 19).

11. Presently pending before this Court, in addition to Jones' motion to dismiss, or, in the alternative, motion for summary judgment, is the plaintiff's January 6, 1996 motion for leave to serve the original summons and pro se complaint on Jones "`out of time.'" (Doc. 28)

CONCLUSIONS OF LAW

1. An individual has ninety days from receipt of an EEOC right-to-sue letter to bring a Title VII claim in federal court. 42 U.S.C. § 2000e-5(f)(1). This 90-day period is tolled, however, from the constructive filing of a complaint, accompanied by a motion for leave to proceed IFP, until the IFP motion is ruled upon and the plaintiff has complied with the dictates of the ruling or the time limit set forth in the ruling has expired. See Jarrett v. US Sprint Communications Co., 22 F.3d 256, 259 & 260 (10th Cir.) (the ninety-day Title VII filing limitation is extended while the IFP petition pends), cert. denied, ___ U.S. ___, 115 S.Ct. 368, 130 L.Ed.2d 320 (1994); cf. Rodgers ex rel. Jones v. Bowen, 790 F.2d 1550, 1552 (11th Cir.1986) (in a social security disability case, the court held that "a complaint is `filed' for statute of limitations purposes when it is `in the actual or constructive possession of the clerk,' ... regardless of the untimely payment of the required filing fee"). Accordingly, plaintiff's complaint was constructively filed on May 4, 1995 and the 90-day statutory limitations period was tolled until June 1, 1995 when plaintiff paid the $120.00 filing fee.

2. Rule 4(a) of the Federal Rules of Civil Procedure requires that a summons issue when a complaint is filed.¹ "A complaint is deemed filed upon payment of the filing fee." Herrick v. Collins, 914 F.2d 228, 230 (11th Cir.1990) (citation omitted); see also Grissom v. Scott, 934 F.2d 656, 657 (5th Cir.1991) (same).² Accordingly, even though the action is treated as commenced, for purposes of tolling the 90-day statute of limitations, when the complaint is submitted with an in forma pauperis petition, the complaint is deemed filed, that is, formally filed, upon payment of the filing fee. In this case therefore, the complaint is deemed filed, that is, formally filed, for purposes of Rule 4, on June 1, 1995, the date the filing fee was paid.

3. Rule 4(m) of the Federal Rules of Civil Procedure states: "If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period."³ In this case, the complaint was required to be served upon Maxa Jones, since she was a named and identified defendant in the pro se complaint, within 120 days of June 1, 1995. Therefore, plaintiff had until September 29, 1995 to serve the pro se complaint upon Maxa Jones even though this complaint does not state a cause of action against Jones individually.⁴ To date, plaintiff has not served Jones with the original complaint, although pending before the Court is a January 5, 1996 motion for leave to serve same out of time, and the amended complaint was not filed or served upon Jones until well after September 29, 1995.⁵

4. After expiration of the 120-day time limit, as here, Rule 4(m) affords the...