Filed: Sep. 03, 2008
Latest Update: Feb. 21, 2020
Summary: Defendant, Appellee.Leslie J. McGill on brief pro se.time-barred and denied her motion to amend as futile.new application or pay the filing fee within 35 days.later, McGill filed a new IFP application and an amended complaint. Jarrett, 22 F.3d at 259 (reasonable grace period permitted).appellant.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1101
LESLIE J. MCGILL,
Plaintiff, Appellant,
v.
U.S. EXPRESS TRUCK COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Leslie J. McGill on brief pro se.
H. Andrew Matzkin and Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C. on brief for appellee.
September 3, 2008
Per Curiam. Pro se appellant Leslie J. McGill seeks
review of the dismissal of her employment discrimination complaint
against her previous employer, appellee U.S. Express Truck Co. of
Ohio. The district court dismissed McGill's amended complaint as
time-barred and denied her motion to amend as futile. As the
following discussion will show, McGill's timely-filed in forma
pauperis ("IFP") motion and application tolled the statute of
limitations.
There is no dispute that McGill filed (and the clerk
docketed) her original complaint and IFP application on August 10,
2007, before the expiration of the 90-day limitations period for
filing a complaint following receipt of the EEOC right to sue
letter.1 42 U.S.C. § 2000e-(5)(f)(1) (Title VII) and 29 U.S.C. §
626(e) (Age Discrimination in Employment Act). On September 5,
2007, the district court denied McGill's IFP application (without
prejudice) because it was incomplete, and it ordered her to file a
new application or pay the filing fee within 35 days. Two days
later, McGill filed a new IFP application and an amended complaint.
The district court granted the new IFP application on September 12,
2007.
1
Although the record does not indicate when McGill received
the EEOC right to sue letter, assuming that she received it in the
mail three days after it was issued, the 90-day limitations period
began on May 18, 2007, the day after receipt. Fed. R. Civ. P.
6(a), (d). At the earliest, therefore, the limitations period
expired on August 15, 2007.
-2-
Appellee moved to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6). After hearing on this motion on
December 11, 2007, the district court gave McGill 30 days in which
to seek leave to further amend her complaint, apparently to prove
that she had exhausted her administrative remedies. That same day,
McGill filed a "second amended complaint" to which was attached a
copy of her EEOC right to sue letter, dated May 14, 2007.
Treating this pleading as a motion for leave to amend,
appellee filed its opposition, arguing that leave should be denied
and the case should be dismissed. According to appellee, McGill's
complaint could not be considered "filed" until she submitted a
proper and complete IFP application, and this she had failed to do
until September 7, 2007, well after the 90-day limitations period
had expired in mid-August. The district court agreed. It denied
the motion for leave to amend as "futile" and summarily dismissed
the case.
In this circuit, "advance payment of a filing fee is
generally not a jurisdictional prerequisite to a lawsuit."
Casanova v. Dubois, 304 F.3d 75, 80 (1st Cir. 2002); Bolduc v.
United States,
189 F. Supp. 640 (D. Me. 1960). Where an IFP
application is subsequently granted, the complaint is deemed timely
filed if it was presented to the court along with the IFP motion
within the limitations period. Williams-Guice v. Board of Educ., 45
-3-
F.3d 161, 163 (7th Cir. 1995); Jarrett v. U.S. Sprint
Communications Co., 22 F.3d 256, 259 (10th Cir. 1994).
The filing of the IFP application tolled the limitations
period until the court ruled on it. Jarrett, 22 F.3d at 259. When
the court denied the original IFP application, it did so without
prejudice and it gave McGill 35 days in which to file a new
application or pay the filing fee. Instead, she filed her new
application in two days. Assuming that the limitations period
started running again on the day the first IFP application was
denied, three more days still remain on the clock. Thus both
McGill's original complaint and her ultimately successful IFP
application were filed within the limitations period.
Even if the district court had denied McGill's amended
IFP application, she would have been entitled to a reasonable time
in which to pay the filing fee. Williams-Guice, 45 F.3d at 163 (15
days);
Jarrett, 22 F.3d at 259 (reasonable grace period permitted).
There is simply no basis in this record for dismissing McGill's
complaint as time-barred.
Vacated and remanded. Costs shall be taxed in favor of
appellant. Fed. R. App. P. 30(a)(4).
-4-
