DLD-193                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-1792
                                     ___________

                              JAY L. THOMAS, Appellant

                                           v.

                        CARE PLUS OF NEW JERSEY, INC.
                      ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                            (D.C. Civil No. 2-11-cv-03493)
                     District Judge: Honorable William J. Martini
                     ____________________________________

                              Submitted for Possible
          Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   May 31, 2012

             Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                              (Opinion filed: June 8, 2012)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Jay Thomas, proceeding pro se and in forma pauperis, appeals the dismissal of his

lawsuit against the defendant, Care Plus of New Jersey (“Care Plus”). For the reasons

that follow, we will summarily affirm the District Court’s judgment.

      In his amended complaint, Thomas sought relief against Care Plus under Title VI
of the Civil Rights Act (42 U.S.C. § 2000d), the New Jersey Law Against Discrimination

(N.J. Stat. Ann. § 10:5-1 et seq.), and theories of breach of fiduciary duty. Care Plus

moved to dismiss the complaint, arguing that several of Thomas’s claims were barred by

res judicata and the applicable statutes of limitation. Care Plus also maintained that

Thomas had failed to state a claim upon which relief could be granted. The District

Court agreed with Care Plus and dismissed the complaint. See generally Thomas v. Care

Plus of N.J., Inc., No. 11–CV–3493, 

(D.N.J. Feb. 28, 2012). This

appeal followed.

       We have jurisdiction under 28 U.S.C. § 1291, exercising plenary review over the

District Court’s order granting Care Plus’s motion to dismiss, accepting all well-pleaded

allegations in the complaint as true, and drawing all reasonable inferences in Thomas’s

favor. Capogrosso v. Sup. Ct. of N.J., 

, 184 (3d Cir. 2009) (per curiam). As

affirmative defenses, limitations defenses should generally be presented in an answer and

not in a motion to dismiss; however, the “law of this Circuit . . . permits a limitations

defense to be raised by a motion under Rule 12(b)(6), but only if the time alleged in the

statement of a claim shows that the cause of action has not been brought within the

statute of limitations.” Robinson v. Johnson, 

, 135 (3d Cir. 2002) (internal

quotations, citations omitted). We may therefore affirm on the basis of a limitations

dismissal when the defect is apparent from the face of the complaint. 

claims, which are based on Care Plus’s alleged violations of

Title VI and the New Jersey Law Against Discrimination, are clearly barred by the statute
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of limitations. Claims brought under Title VI are subject to the same limitations period

as claims brought under 42 U.S.C. § 1983. Taylor v. Regents of Univ. of Cal., 

, 712 (9th Cir. 1993) (citing Bougher v. Univ. of Pittsburgh, 

, 77–78 (3d

Cir. 1989)). In New Jersey, the relevant period is two years from date of accrual. See

Montgomery v. De Simone, 

, 126 n.4 (3d Cir. 1998). The statute of

limitations for all Law Against Discrimination claims is also two years from date of

accrual. Montells v. Haynes, 

, 658–60 (N.J. 1993). Construing liberally

Thomas’s allegations, see Roman v. Jeffes, 

, 197 (3d Cir. 1990), we observe

that neither his original nor his amended complaint alleges harm suffered or retaliation

taken within two years of the date he first filed his lawsuit: June 16, 2011. Thomas has

not availed himself of the numerous opportunities to demonstrate that an exception to the

limitations period applies. 1 Further amendment of the complaint would therefore be

“inequitable or futile.” Phillips v. Cnty. of Allegheny, 

, 236 (3d Cir. 2008).

       With regard to Thomas’s fiduciary-duty claim, we will assume, without deciding,

that Thomas and his doctor did have a “fiduciary” relationship as contemplated by New

Jersey law. See Howard v. Univ. of Med. & Dentistry of N.J., 

, 78 (N.J.



1
  In his summary action response, he argues that his “factual allegations of retaliation
under the New Jersey Law Against Discrimination . . . [represent] a common law tort
where the statute of limitation is six years.” At least one of the statutes upon which he
relies, however, explicitly excludes personal injury actions from the six-year limitations
period. Compare N.J. Stat. Ann. § 2A:14-1 (establishing six-year statute of limitations
“for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-
3 of this Title”), with N.J. Stat. Ann. § 2A:14-2 (establishing two-year statute of
                                             3
2002). Having so assumed, we agree with the District Court that breach of this kind of

“fiduciary relationship” is akin to a personal-injury action, which (as above) is governed

by a two-year statute of limitations. Cf. Balliet v. Fennell, 

, 172–73 (N.J.

Super. Ct. App. Div. 2004). Hence, the third claim is also barred by the limitations

period. 2

       Finally, the District Court denied Thomas’s motion for default judgment.

There is no indication on the District Court docket of Thomas’s effecting service of the

summons on Care Plus. Since the twenty-one-day period of Fed. R. Civ. P.

12(a)(1)(A)(i) had not yet started, Care Plus was not in default. Therefore, the District

Court did not abuse its discretion by refusing to enter a default judgment. See

Chamberlain v. Giampapa, 

, 164 (3d Cir. 2000).

       In sum, we find that this appeal does not present a substantial question, and will

therefore summarily affirm the District Court’s judgment. Murray v. Bledsoe, 

, 248 (3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6. To the

extent that Thomas’s filings in this Court request independent relief, they are denied.




limitations for “[e]very action at law for an injury to the person caused by the wrongful
act, neglect or default of any person within this State”).
2
  In the alternative, we would affirm on the basis of Thomas’s failure to state a claim
upon which relief could be granted. Claim three is a threadbare recitation of the elements
of a cause of action, lacking sufficient factual material to show that the claim is facially
plausible. Warren Gen. Hosp. v. Amgen Inc., 

, 84 (3d Cir. 2011) (citations,
quotations omitted).
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