United States District Court, E.D. Arkansas, Eastern Division
RENEE A. REESE PLAINTIFF
CORRECT CARE SOLUTIONS, LLC DEFENDANT No .
Kristine G. Baker United States District Judge.
the Court is a motion to dismiss filed by Correct Care
Solutions, LLC, now known as Wellpath Recovery Solutions, LLC
(“Correct Care”) (Dkt. No. 3). Plaintiff Renee
Reese responded in opposition to the motion (Dkt. No. 7).
Correct Care filed a motion for leave to file reply brief in
support of its motion to dismiss (Dkt. No. 8). For good cause
shown, the Court grants Correct Care's motion for leave
to file reply and directs Correct Care to file its reply
within 10 days from the entry of this Order (Dkt. No. 8). To
resolve the pending motions, the Court has considered Correct
Care's reply (Dkt. No. 8-1). The Court grants Correct
Care's motion to dismiss and dismisses with prejudice as
time-barred Ms. Reese's complaint (Dkt. No. 3). Correct
Care's motion to stay Rule 26(f) report deadline is
denied as moot (Dkt. No. 9).
Care, in its motion to dismiss, maintains that Ms.
Reese's complaint should be dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim
upon which relief can be granted (Dkt. No. 3, at 1).
Fed.R.Civ.P. 12(b)(6). Correct Care contends that Ms.
Reese's complaint alleges race discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e (“Title VII”), but that her
claims are time barred because she failed to file her
complaint within 90 days of her receipt of a Notice of Right
to Sue letter from the Equal Employment Opportunity
Commission (“EEOC”) (Dkt. No. 3, at 1).
Alternatively, Correct Care argues that its motion for
summary judgment, filed in the earlier identical case
Reese v. Correct Care Solutions, LLC, Case
No. 2:16-cv-00046 KGB (the “First Case”), should
be granted (Id.). Further, Correct Care requests its
fees and costs in this case pursuant to this Court's
prior Order in the First Case (Id.).
a re-filing of an earlier case, the First Case, that
dismissed Ms. Reese's complaint without prejudice. Ms.
Reese was in the First Case and is currently represented by
counsel. In her first amended complaint in the First Case,
Ms. Reese stated:
Jurisdiction in this court is appropriate pursuant to 28
U.S.C. § 1331 (federal question) and 28 U.S.C. §
1343 (civil rights) as Plaintiff alleges deprivation of
constitutional rights guaranteed by Amendments 4, 5, and 14
of the United States Constitution. . . . The Plaintiff did
lodge a timely compliant [sic] or charge of discrimination
with the Equal Employment Opportunity Commission (hereinafter
EEOC) (See Exhibit 1). On or about December 28, 2015, the
Plaintiff received her Right to Sue Letter from the EEOC (See
(Dkt. No. 5, ¶ 1).
Correct Care's purported wrongdoing, Ms. Reese alleges
that she “was removed from her position, suspended and
discharged because of her race, black, in violation of Title
VII of the Civil Rights Act of 1964, as amended.”
(Id., ¶ 14). Correct Care, in its filings,
correctly recites the procedural history of the First Case.
While Correct Care's motion for summary judgment was
pending, Ms. Reese moved to dismiss without prejudice her
amended complaint in the First Case. The Court granted Ms.
Reese's motion but imposed conditions.
current case, Ms. Reese makes the same allegations with
respect to jurisdiction and Correct Care's alleged
wrongdoing (Dkt. No. 1, ¶¶ 1, 14). Based on a plain
reading of the complaints and amended complaints Ms. Reese
filed in the First Case and files now, the Court rejects any
suggestion that Ms. Reese alleges any claim other than a
Title VII claim against Correct Care. Ms. Reese's current
Title VII claim, which is the only claim she alleged in the
First Case and the only claim she alleges now against Correct
Care, is time barred and dismissed with prejudice.
filed under Title VII must be brought within 90 days after
the receipt of the Notice of Right to Sue issued by the EEOC.
42 U.S.C. § 2000e-5(f)(1); Williams v. Thomson,
Corp., 383 F.3d 789 (8th Cir. 2004); Maeqdlin v.
Int'l Ass'n of Machinists & Aerospace Workers,
Dist. 949, 309 F.3d 1051 (8th Cir. 2002). Because the
statute of limitations is an affirmative defense that the
defendant must plead and prove, under Federal Rule of Civil
Procedure 8(c)(1), “untimeliness” generally will
not provide a basis for a Rule 12(b)(6) dismissal.
Fed.R.Civ.P. 8(c)(1). However, an action may be dismissed, as
barred by the statute of limitations, where a plaintiff's
own pleadings establish the defense. McDaniel v. Kraft
Glob. Foods, 632 Fed.Appx. 314, 315 (8th Cir. 2016)
(concluding dismissal was proper where plaintiff's own
pleadings showed that she brought her lawsuit more than 90
days after receiving a right-to-sue notice from the EEOC and
tolling of the limitations period was not warranted); see
also Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir.
2008) (citing Varner v. Peterson Farms, 371 F.3d
1011, 1017-18 (8th Cir. 2004)).
the 90-day limitations period is subject to equitable tolling
in appropriate circumstances, courts have generally reserved
the remedy of equitable tolling for situations in which the
reasons for the delay were beyond the control of the
plaintiff. See Baldwin Cty. Welcome Ctr. v. Brown,
466 U.S. 147, 151 (1984) (“One who fails to act
diligently cannot invoke equitable principles to excuse that
lack of diligence.”); Heideman v. PFL, Inc.,
904 F.2d 1262, 1266 (8th Cir. 1990) (“Equitable tolling
is appropriate only when the circumstances that cause a
plaintiff to miss a filing deadline are out of his [or her]
hands.”), cert. denied, 498 U.S. 1026 (1991);
Hill v. John Chezik Imports, 869 F.2d 1122, 1124
(8th Cir. 1989) (finding that equitable tolling was not
appropriate when the plaintiff did not inform the EEOC of her
new address). Here, Ms. Reese's current complaint does
not allege any circumstances that might justify equitable
tolling of the limitations period, and, based on the record
in this and the First Case, the Court is aware of no such
Arkansas Code Annotated § 16-56-126, which gives a
plaintiff one year to refile an action after a nonsuit, will
not save Ms. Reese's Title VII claim. The Arkansas
savings statute does not apply to lawsuits brought under
Title VII. Garrison v. Int'l Paper Co., 714 F.2d
757, 759 n.2 (8th Cir. 1983) (stating that “[b]ecause
Title VII actions are governed by a federal statute of
limitations, the Arkansas saving[s] clause is
inapplicable” (citing Holmberg v. Armbrecht,
327 U.S. 392, 395 (1946))). Furthermore, the Eighth Circuit
has held that, under Title VII, a dismissal without prejudice
operates to leave a plaintiff as if no action had been filed.
Id. (citing Moore v. St. Louis Music Supply Co.,
Inc., 539 F.2d 1191, 1194 (8th Cir. 1976)). Thus, any
dismissal of a Title VII case that occurs, as it did here,
more than 90 days after the right to sue letter issued is, in
substance, with prejudice.
these reasons, the Court grants Correct Care's motion for
leave to file reply and directs Correct Care to file its
reply within 10 days from the entry of this Order (Dkt. No.
8). The Court grants Correct Care's motion to dismiss and
dismisses with prejudice as time-barred Ms. Reese's
complaint (Dkt. Nos. 1, 3). The ...