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Morris v. Dowell

November 14, 2006

JEAN ELAINE MORRIS PLAINTIFF
v.
EARL DOWELL, KERRY DOWELL, DOWELL TRANSPORT, INC. AND ROGER HOOPER DEFENDANTS



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER

Presently before the Court are the Plaintiff's Motion for Relief from Judgment Pursuant to Rule 60(b)(5) & (6), Motion for Reconsideration, and Motion for Extension of Time in Which to File a Notice of Appeal.

I. Background

Plaintiff alleges discrimination in violation of Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, as well as pendent state law claims of sexual assault. Plaintiff, formerly an employee of Dowell Transport, Inc., alleges that she was sexually assaulted and raped by Roger Hooper, a truck driver employed by Dowell Transport. Plaintiff filed a lawsuit in this district on June 8, 2005, and moved for a non-suit on July 15, 2005. Plaintiff's case was dismissed without prejudice by order entered July 19, 2005. On September 14, 2005, Plaintiff moved to re-open that case, but Plaintiff's motion was denied. She was instructed that she could, however, file a new case, which she did on December 30, 2005, alleging substantially the same claims as raised in the previous case.

On July 28, 2006, this Court dismissed Plaintiff's Complaint finding that the Plaintiff's lawsuit was barred by the statute of limitations of 29 U.S.C. § 626(e). The Court stated that even if it were to toll the statute of limitations for the entire time her first lawsuit was pending, the action would still fall outside the limitations period, as ninety days from the final docket entry in the first lawsuit would be December 18, 2005, and Plaintiff re-filed her lawsuit on December 30, 2005. On August 25, 2006, Plaintiff filed the motions presently before the Court.*fn1

II. Motion for Relief from Judgment and Motion for Reconsideration

Plaintiff does not specify the rule under which she brings her Motion for Reconsideration. The Court will treat the motion as being filed pursuant to Fed. R. Civ. P. 60(b), as no judgment was entered in this case, and even if a judgment was entered, the motion is made beyond the ten (10) day period for filing motions "to alter or amend the judgment" pursuant to Fed. R. Civ. P. 59(e), which deprives the Court of jurisdiction to consider a Rule 59(e) motion. As the basis for her Motion for Relief from Judgment, Plaintiff specifically relies on Federal Rule of Civil Procedure 60(b)(5) and (6). Therefore, the Court will consider these motions simultaneously.

A Rule 60(b) motion serves to relieve a party from a final judgment or order on one of several specified grounds. The rule provides in relevant part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment . . .

Fed. R. Civ. P. 60(b). Rule 60(b) "provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances." United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986) (per curiam), cert. denied, 484 U.S. 836, 108 S.Ct. 117, 98 L.Ed. 2d 76 (1987). As the basis for her motions, Plaintiff essentially argues that the Court's failure to apply equitable tolling or the Arkansas rule on tolling was erroneous because she believed that the Rule 41(a) dismissal would toll the statute of limitations. Plaintiff did not elaborate on the application of Rule 60 to the facts of this case, and it does not appear that relief under Rule 60 is appropriate in this case.

A. Federal Claims

Plaintiff improperly asserts that Federal Rule of Civil Procedure 41(a) "allows a party to voluntarily take a non-suit and the suit is dismissed without prejudice meaning that plaintiff can bring her lawsuit against within one year of the dismissal." While under Arkansas law, "a person who files a lawsuit may voluntarily dismiss that lawsuit and has a statutory right to refile the action within one year pursuant to Ark. Code Ann. section 16-56-126 (1987)," Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 621, 954 S.W.2d 939, 940 (1997), the Arkansas statute is irrelevant "because state tolling and savings provisions do not apply when Congress has provided a federal statute of limitations for a federal claim." Victor Foods, Inc. v. Crossroads Econ. Dev. of St. Charles County, Inc., 977 F.2d 1224, 1227 (8th Cir. 1992); see also Garrison v. International Paper Co., 714 F.2d 757, 759 n. 2 (8th Cir.1983) (because a federal statute of limitations governs Title VII actions, Arkansas savings clause did not apply).

Plaintiff argues that it was her understanding that a dismissal under Rule 41(a) would toll the statute of limitations. While the Court is mindful of Plaintiff's pro se status, pro se status and lack of legal knowledge are inadequate to warrant equitable tolling in this case. The Eighth Circuit has held that in ADEA and Title VII cases, "[t]he statute of limitations will not be tolled on the basis of equitable estoppel unless the employee's failure to file in a timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge. The equitable estoppel inquiry focuses on the employer/defendants' conduct." Garfield v. J.C. Nichols Real Estate, 57 F.3d 662, 666 (8th Cir. 1995) (citing Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 358-59 (8th Cir.1984) (ADEA case); Hamilton v. West, 30 F.3d 992, 994 (8th Cir.1994) (Title VII case)). This ...


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