UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1723

PAULA C. ANGLES; DEBORAH COLLINS; ELIZABETH A. GARRICK; EDNA 

A. BOLTON; SONYA LYNN ANGELL; CANDY S. DICKINSON; SHIRLEY K. 

FRELIX; PAULA HENRY; SANDRA MANNON; KATHLEEN SHALLOW; 

KIMBERLY VELLER; JUANEMA OGLE; LILLIAN LEWIS; TABITHA A. 

KNIGHT; MARY PFEUFER; CARMEN GARCIA; APRIL WEBSTER; DAPHNE 

M. ROBINSON; DESIREE LIGHTFOOT; CHASSIDY HAMILTON; FRIEDA 

SCOTT-BUTTS; ARACELI REYES; BRENDA WILLIAMS; MARIA D. 

GONZALEZ; CARLOTA RZUCEK; DARLENE R. MARTIN; CAROLYN SABO; 

SHERRY L. ALLISON; REBECCA TYLER-MILLS; MICHELE L. WAHL; 

MELINDA J. ANDERSON, on behalf of themselves and others 

similarly situated,

Plaintiffs – Appellants,

v.

DOLLAR TREE STORES, INCORPORATED,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Jerome B. Friedman, Senior 

District Judge. (2:09-cv-00486-JBF-FBS)

Argued: January 24, 2012 Decided: September 13, 2012

Before SHEDD, DAVIS, and DIAZ, Circuit Judges. 

Affirmed by unpublished opinion. Judge Shedd wrote the majority 

opinion, in which Judge Diaz joined. Judge Davis wrote a 

dissenting opinion.
2

ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN & 

PANTAZIS, PC, Birmingham, Alabama, for Appellants. Kenneth 

Martin Willner, PAUL HASTINGS LLP, Washington, D.C., for 

Appellee. ON BRIEF: Gregory O. Wiggins, WIGGINS, CHILDS, QUINN 

& PANTAZIS, PC, Birmingham, Alabama, for Appellants. Barbara B. 

Brown, Carson H. Sullivan, PAUL HASTINGS LLP, Washington, D.C.; 

Beth Hirsch Berman, WILLIAMS MULLEN, Norfolk, Virginia, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit.
3

SHEDD, Circuit Judge:

Paula Angles and other named plaintiffs (collectively “the 

Plaintiffs”) in this proposed class action appeal the dismissal 

of their complaint as untimely. For the following reasons, we 

affirm.

I.

In 2008, the Plaintiffs filed an action against Dollar Tree 

Stores in the Northern District of Alabama alleging claims under 

the Equal Pay Act. Collins v. Dollar Tree Stores, Inc., 2:08-

cv-1267 (Collins I).1 Collins I is a collective class action

alleging that Dollar Tree paid female managers less than their 

male counterparts. As part of the action, notices were sent to 

other female Dollar Tree store managers employed between 2006 

and 2009. At the time Collins I commenced, 31 of the 34 named

plaintiffs had discrimination charges pending with the Equal 

Employment Opportunity Commission (EEOC).2

 The EEOC sent rightto-sue letters to those named plaintiffs between November 6, 

2008 and April 24, 2009. 

 1 Cynthia Collins was originally the lead plaintiff in this 

action as well. Pursuant to a settlement agreement with Dollar 

Tree, she voluntarily dismissed her claims and Paula Angles 

became the lead plaintiff. 

2 Three of the named plaintiffs never filed an EEOC charge. 
4

On February 4, 2009, 90 days after the first right-to-sue 

letters were mailed, the Plaintiffs moved pursuant to Federal 

Rule of Civil Procedure 15 to amend their complaint in Collins I

to add sex discrimination claims under Title VII. Dollar Tree 

opposed the proposed amendment, arguing that proper venue for 

the Title VII claims was in Virginia, not Alabama.3 On February 

20, 2009, the Plaintiffs filed a pleading labeled “Consent to 

Severance and Reassignment of Title VII Claims,” requesting that 

the Alabama district court sever the Title VII claims and assign 

them to another judge. The Plaintiffs noted that they moved to 

sever and reassign the Title VII claims rather than simply file

a new complaint because “the defendant may then argue that the 

ninety day limitations period . . . expired before such refiling.” (J.A. 254). Thus, “[i]n order to avoid such a risk,” 

the Plaintiffs “consent only to the Title VII claims at issue 

being severed and reassigned a new case number and judge.” 

(J.A. 254).

On June 17, the Alabama district court held a hearing on 

the motion for leave to amend, noting that it was inclined to 

deny the motion as futile because venue was improper. The

district court also noted that the motion for “Consent” was 

 3 Earlier, Dollar Tree had unsuccessfully moved to transfer 

the Equal Pay Act claims to Virginia. 
5

improper because, “[t]here’s nothing for you to consent to 

unless I amend, unless I grant your motion for leave to amend, 

which, again, I’m inclined to deny.” (J.A. 263). Failing to 

recognize the Alabama district court’s signal about their need 

to file in the proper district, on July 9, the Plaintiffs filed 

another motion to amend the complaint. At this point, only 76 

days had passed since the EEOC issued the April 24 right-to-sue 

letters. 

On September 30, 2009, the Alabama district court denied 

the first motion for leave to amend as moot and the second 

motion for leave to amend as futile because of improper venue. 

The next day, the Plaintiffs filed a new complaint in the 

Eastern District of Virginia stating the same Title VII claims 

previously included in the proposed amended complaint in Collins 

I. Because the action was filed outside of Title VII’s 90-day 

limitations period, the district court dismissed the complaint 

as untimely filed. In doing so, the court rejected the 

Plaintiffs’ argument that moving to amend their complaint in 

Collins I tolled Title VII’s statute of limitations and noted 

that the case was not one that “turns on a plaintiff missing the 

filing deadline by a few days.” (J.A. 508). The Plaintiffs 

filed a Rule 59(e) motion to alter or amend the order, which the 

district court denied. The Plaintiffs then filed this appeal. 
6

II.

On appeal, the Plaintiffs argue that the district court 

erred in finding that their Title VII claims are time-barred. 

We review the district court’s 12(b)(6) dismissal de novo, 

Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th 

Cir. 2010), and its denial of a Rule 59(e) motion for abuse of 

discretion, Orem v. Rephann, 523 F.3d 442, 451 n.2 (4th Cir. 

2008). 

A.

At the outset, we note that the Plaintiffs do not dispute 

that their complaint was filed well outside the relevant 

limitations period. Title VII requires that aggrieved persons 

file a civil action within 90 days of receiving a right-to-sue 

letter. 42 U.S.C. § 2000e-5(f)(1). The last right-to-sue 

letters were issued on April 24, 2009, and the Plaintiffs’ 

complaint was not filed until October 1, more than 150 days 

later.

In the face of the clear untimeliness of this action, the 

Plaintiffs contend that the filing of the motion for leave to 

file an amended complaint in Alabama tolls the statute of

limitations in this case. We disagree. Federal Rule of Civil 

Procedure 15 governs the amendment of pleadings and, in 

pertinent part, it provides that “a party may amend its pleading 

only with the opposing party’s written consent or the court’s 
7

leave.” Fed. R. Civ. P. 15(a)(2).4 Under Rule 15, however, an

amended complaint is not actually “filed” until the court grants 

“leave” for the amendment. Murray v. Archambo, 132 F.3d 609, 

612 (10th Cir. 1998) (noting “an amendment that has been filed 

or served without leave of court . . . is without legal 

effect”). For instance, in Bridges v. Department of Maryland 

State Police, 441 F.3d 197 (4th Cir. 2006), the original 

plaintiffs moved to amend their complaint to add 18 individual 

would-be plaintiffs. The district court denied the motion to 

amend, concluding that the 18 would-be plaintiffs’ claims were 

time barred. The would-be plaintiffs appealed the denial of the 

motion to amend, and we concluded that they lacked standing to 

appeal because, with the motion to amend denied, they “never 

became parties to the action.” Bridges, 441 F.3d at 207.

The Fifth Circuit has explained the operation of Rule 15 in 

this situation as follows:

 4 In contrast to motions to amend, the initial filing of a 

complaint is governed by Rule 3, which explains that “[a] civil 

action is commenced by filing a complaint with the court.” Fed. 

R. Civ. P. 3. In conjunction with Rule 3, Rule 5 provides that 

a “paper is filed by delivering it” to “the clerk” or “a judge 

who agrees to accept it for filing.” Fed. R. Civ. P. 5(d)(2). 

Under these rules, “[t]he original complaint [is] considered 

filed when . . . placed in the possession of the clerk of the 

district court.” 4 Charles Alan Wright, Arthur R. Miller & Mary 

Kay Kane, Federal Practice & Procedure § 1153, at 471 (3d ed. 

2002).
8

[F]ailing to request leave from the court when leave 

is required makes a pleading more than technically 

deficient. The failure to obtain leave results in an 

amended complaint having no legal effect. Without 

legal effect, it cannot toll the statute of 

limitations period.

U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296 

(5th Cir. 2003) (emphasis added).

In HealthSouth, the plaintiff, Mathews, filed an action 

against his former employer under the False Claims Act on April 

1, 1999. Without leave of the court, he filed an amended 

complaint on August 2, adding state law claims for, inter alia, 

age discrimination. The clerk of court issued Mathews a 

deficiency notice for failing to seek leave to file the amended 

complaint, and on August 9, he complied with Rule 15(a) and

requested leave to file the amended complaint, which the 

district court granted the same day. The statute of limitations 

on the age discrimination claim ran on August 4, 1999. The 

district court ultimately dismissed the age discrimination claim 

as time-barred even though the claim was timely when the 

plaintiff first filed the amended complaint. On appeal, the 

plaintiff contended that, under Rule 3 and Rule 5, the age 

discrimination claim was timely “filed” on August 2 when he 

filed the amended complaint. The Fifth Circuit disagreed, 

explaining that “[u]nder Rule 15(a), [the plaintiff] needed 

permission before his amended complaint could be filed, which he 
9

did not have on August 2.” Id. at 296. Without this 

permission, the filing had “no legal effect” and “cannot toll 

the statute of limitations period.” Id. The Fifth Circuit 

further noted that, while Rule 5 would deem a technically 

deficient pleading “filed,” because, “[a]s the more specific 

rule with respect to amended pleadings, Rule 15(a), not Rule 5[]

governs.” Id. 

Likewise, in this case, although the Title VII claims were 

timely when the Plaintiffs moved for leave to file the amended 

complaint, the motion for leave was never granted. The amended 

complaint was thus never filed and lacks the ability to toll the 

limitations period. This conclusion is consistent with the 

general rule that a Title VII complaint that has been filed but 

then dismissed without prejudice does not toll the 90-day 

limitations period. See, e.g., O’Donnell v. Vencor Inc., 466 

F.3d 1104, 1111 (9th Cir. 2006) (“In instances where a complaint 

is timely filed and later dismissed, the timely filing of the 

complaint does not toll or suspend the 90-day limitations 

period.” (internal quotation marks omitted)); Simons v. Sw. 

Petro-Chem, Inc., 28 F.3d 1029, 1030-31 (10th Cir. 1994) (same).5

 5 We have approved of this reasoning in several unpublished 

cases. See Quinn v. Watson, 119 Fed. App’x 517, 518 n.* (4th 

Cir. 2005) (“In instances where a complaint is timely filed and 

later dismissed, the timely filing of the complaint does not 

‘toll’ or suspend the ninety-day limitations period.”). 
10

As the Seventh Circuit has explained—outside the Title VII 

context—“if the suit is dismissed without prejudice, meaning 

that it can be refiled, then the tolling effect of the filing of 

the suit is wiped out and the statute of limitations is deemed 

to have continued running from whenever the cause of action 

accrued, without interruption by that filing.” Elmore v. 

Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000). 

B.

The Plaintiffs emphasize several lines of cases in an 

effort to avoid this result.6 First, the Plaintiffs correctly 

note that courts have generally concluded that when a motion for 

leave to amend is later granted, the amended complaint is deemed 

timely even if the court’s permission is granted after the 

limitations period ends. This rule has been explained as 

follows:

As a party has no control over when a court renders 

its decision regarding the proposed amended complaint, 

the submission of a motion for leave to amend, 

properly accompanied by the proposed amended complaint 

that provides notice of the substance of those 

amendments, tolls the statute of limitations, even 

 6 As part of this argument, in their reply brief, the 

Plaintiffs for the first time assert that this case is analogous 

to situations in which plaintiffs file a request to proceed in 

forma pauperis (IFP) in conjunction with their complaint. Of 

course, a party waives an argument by failing to raise it below, 

United States v. Evans, 404 F.3d 227, 236 n.5 (4th Cir. 2005), 

and by waiting to raise it until the reply brief, Cavallo v. 

Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996).
11

though technically the amended complaint will not be 

filed until the court rules on the motion.

Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993). The 

Plaintiffs contend that this rule applies here. The Plaintiffs’ 

argument on this point faces several problems, however. First, 

in each of the cases the Plaintiffs rely on, the motion for 

leave to amend was granted and, as the district court explained, 

the timeliness of the amended complaint in such cases “stems 

from the confluence of the plaintiff’s timely preservation of 

the issue for the court’s consideration . . . and the court’s 

inherent power to enter a nunc pro tunc order on that motion 

that retroactively causes the proposed amended complaint to be 

considered filed as of the date of the motion.” (J.A. 511 n.3). 

Indeed, while several of the cases, e.g., Moore, reference 

“tolling,” earlier cases note that “where the petition for leave 

to amend . . . has been filed prior to expiration of the statute 

of limitations, while the entry of the court order and the 

filing of the amended complaint have occurred after,” the 

“amended complaint is deemed filed within the limitations 

period.” Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172, 1173 

(8th Cir. 1989) (emphasis added).7 The Plaintiffs’ amended

 7 This approach stems from a Fifth Circuit case that 

predates the Federal Rules of Civil Procedure. Rademaker v. 

E.D. Flynn Exp. Co., 17 F.2d 15, 17 (5th Cir. 1927). 
12

complaint cannot be “deemed filed” in a timely fashion because 

it was never accepted by the district court. Moreover, none of 

these cases suggests that denying a motion to file an amended 

complaint in an earlier action in another jurisdiction tolls the 

statute of limitations for a newly-filed action.8 

Second, the Plaintiffs rely on Crown, Cork & Seal Co. v. 

Parker, 462 U.S. 345 (1983), and American Pipe & Construction

Co. v. Utah, 414 U.S. 538 (1974). In those cases, the Supreme 

Court held that during the pendency of a class certification, 

the statute of limitations on any individuals’ claims that would 

be covered by the proposed class is tolled.9 The Plaintiffs 

 8 In cases involving the relation back of an amended 

complaint to an “original pleading,” under Rule 15(c), courts 

have held that a complaint in one case may not relate back to a 

complaint in another case to avoid the statute of limitations. 

Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 994 (8th 

Cir. 1989) (“Rule 15(c) concerns amendments to pleadings. Its 

plain language makes clear that it applies not to the filing of 

a new complaint, but to the filing of an amendment”); Bailey v. 

Northern Ind. Pub. Serv. Co., 910 F.2d 406, 413 (7th Cir. 1990) 

(“Rule 15(c), by its terms, only applies to amended pleadings in 

the same action as the original, timely pleading.”).

9 Some courts have referred to American Pipe/Crown, Cork & 

Seal as “legal tolling” because it “is derived from a statutory 

source” as opposed to the “judicially created” doctrine of 

equitable tolling. Arivella v. Lucent Technologies, Inc., 623 

F.Supp.2d 164, 176 (D. Mass. 2009). See also Joseph v. Wiles, 

223 F.3d 1155, 1166-67 (10th Cir. 2000) (same). We have 

previously referred to them as a species of equitable tolling. 

Bridges, 441 F.3d at 211 (“The American Pipe/Crown, Cork & Seal

equitable tolling rule is a limited exception to the universal 

rule that statutes of limitations are impervious to equitable 

exceptions.”). 
13

failed to make this argument until their motion for 

reconsideration in the district court, and “Rule 59(e) motions 

may not be used . . . to raise arguments which could have been 

raised prior to the issuance of the judgment.” Pac. Ins. Co. v. 

Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). 

Regardless, we believe this argument is without merit. American 

Pipe/Crown, Cork & Seal tolling applies when a class action is 

commenced by the filing of a complaint and tolls an individual’s

statute of limitations, not the statute of limitations for the 

proposed class.10 Bridges, 441 F.3d at 210 (noting that, under 

American Pipe/Crown, Cork, & Seal, “all class members’ claims 

are tolled at the time the class action is filed, regardless of 

whether the members eventually intervened or filed new 

actions”). Under this rule, “[o]nce the statute of limitations 

has been tolled, it remains tolled for all members of the 

putative class until class certification is denied.” Crown, 

Cork & Seal, 462 U.S. at 354. The basis for tolling in those 

cases was the successful operation of Rule 23 and the need to 

avoid the filing of a multiplicity of suits by thousands of 

 10 Courts have consistently concluded that American 

Pipe/Crown, Cork & Seal do not permit class actions to toll the 

statute of limitations for additional classes to be stacked upon 

them. See Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir. 

1998) (“Plaintiffs may not stack one class action on top of 

another and continue to toll the statute of limitations 

indefinitely.”).
14

plaintiffs in a putative class action. Id. at 349-51. That 

concern is absent in this case. Moreover, as previously 

discussed, the Title VII claims in this case were never “filed,” 

because the Alabama district court denied the motion for leave 

to file the amended complaint. Even assuming American 

Pipe/Crown, Cork, & Seal applied to a separate class action in a 

different venue, the rule still requires the actual filing of an

action in the first instance, which never occurred in this case

with respect to the Title VII claims.

Accordingly, we find that neither the Rule 15 cases the 

Plaintiffs rely on—which are more properly characterized as 

dealing with nunc pro tunc power than tolling—nor American 

Pipe/Crown Cork & Seal provide relief for the untimely filing of 

the Plaintiffs’ complaint. 

C.

The Plaintiffs contend in the alternative that the statute 

of limitations should be equitably tolled in this case. 

Equitable tolling is a narrow exception to statutes of 

limitations and is appropriate “where the defendant has 

wrongfully deceived or misled the plaintiff in order to conceal 

the existence of a cause of action.” English v. Pabst Brewing 

Co., 828 F.2d 1047, 1049 (4th Cir. 1987). The doctrine operates 

to keep defendants from engaging in “misconduct that prevents 

the plaintiff from filing his or her claim on time.” Id. In 
15

contrast, equitable tolling is not appropriate in cases where 

“the claimant failed to exercise due diligence in preserving his 

legal rights.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 

96 (1990). We review the district court’s denial of equitable 

tolling for abuse of discretion. Chao v. Virginia Dep’t of 

Transp., 291 F.3d 276, 279-80 (4th Cir. 2002). 

Having reviewed the record, we agree with the district 

court that equitable tolling is inappropriate in this case, and 

we certainly can discern no abuse of discretion in that 

decision. Our caselaw on equitable tolling has consistently 

focused on external factors hampering the ability to file a 

timely claim, and no such factor is present in this case. See

e.g., Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th 

Cir. 2004) (quoting Kokotis v. United States Postal Serv., 223 

F.3d 275, 280 (4th Cir. 2000) (noting equitable tolling “is not 

appropriate, here, because [the plaintiff] did not allege that 

[the defendant] deceived or misled her . . . ‘in order to 

conceal the existence of a cause of action.’”)).

The Plaintiffs rely heavily on Burnett v. New York Central 

Railroad Co., 380 U.S. 424 (1965), but, like the district court,

we believe that case is inapposite. In Burnett, the plaintiff 

timely filed an action under the Federal Employers’ Liability

Act (FELA) in an Ohio state court. Id. at 424. The state court 

dismissed the action for improper venue, and the plaintiff 
16

refiled eight days later in federal court. Id. at 425. The 

state action was timely filed, but the federal action was not. 

Id. at 426. The Court held that equitable tolling was 

appropriate because “when a plaintiff begins a timely FELA 

action in state court having jurisdiction, and serves the 

defendant with process and plaintiff’s case is dismissed for 

improper venue, the FELA limitation is tolled during the 

pendency of the state suit.” Id. at 434-35. The Court found it 

significant that the plaintiff “did not sleep on his rights” but 

timely filed an action in state court, that service of process 

was made, that Ohio permitted waiver of venue objections, and 

that the defendant railroad itself had previously waived 

improper venue. Id. at 429. As the district court properly 

noted, however, there are “key factual and procedural 

distinctions” between Burnett and this case, namely that “unlike 

in Burnett, no timely Title VII action was ever actually 

commenced” because the motion to amend was never granted. (J.A. 

516). 

In affirming the district court’s conclusion on equitable 

tolling, we emphasize that the Plaintiffs had two avenues 

available to ensure that their rights were vindicated in this 

litigation. First, to the extent the Plaintiffs believe the 

district court in Alabama committed legal error in denying the 

motion to amend, they could have appealed that decision to the 
17

Eleventh Circuit. The Plaintiffs are asking us to equitably 

toll the statute of limitations, not because they were misled by 

Dollar Tree, or provided inaccurate information by the EEOC, but 

because of an unfavorable judicial decision—a decision that they 

have not appealed. Second, the Plaintiffs could have protected 

themselves by timely filing an action in the Eastern District of 

Virginia—an option still available at the time the district 

court indicated that it was likely to reject the motion for 

leave to amend. The Plaintiffs declined to do so even though, 

in their own motion for “Consent to Sever,” they recognized the 

potential statute of limitations problems. As the district 

court explained, the “procedural details . . . highlight the 

gamble that plaintiffs’ counsel knowingly made. . . . 

Plaintiffs’ counsel lost that gamble when [the Alabama district 

court] denied the motion for leave to amend.” (J.A. 519). 

Accordingly, under these particular circumstances, we agree 

with the district court that equitable tolling was not 

appropriate.

III.

For the foregoing reasons, we affirm the district court’s 

grant of Dollar Tree’s motion to dismiss.

AFFIRMED
18

DAVIS, Circuit Judge, dissenting:

Not least because I am confident that Chief District Judge 

Sharon Lovelace Blackburn of the United States District Court 

for the Northern District of Alabama could not remotely have 

believed, when she dismissed Appellants’ Title VII claims in 

lieu of transferring venue to the Eastern District of Virginia, 

that these Appellants would arrive at the Fourth Circuit only to 

find the courthouse door locked, I respectfully dissent.

The majority ignores the compelling facts of this case and 

principally relies on outside circuit authority that is not on 

point to reach a fundamentally unfair result.

First, the majority unfairly takes the Appellants and their 

counsel to task for filing their Title VII claims in the 

Northern District of Alabama, suggesting that the outcome is 

justified here because of their own inaction. The majority 

suggests the Appellants’ consent to severance was a 

“recogni[tion of] the potential statute of limitations 

problems,” Maj. Op. at 4, 17, but fails to mention that the 

Appellants only consented to severance because of the original 

(senior district) judge’s “standing instruction against 

assignment of any case with Rule 23 allegations.” J.A. 257. 

Indeed, in the consent to severance, they argued that venue was 

proper in the Northern District of Alabama. 
19

Perhaps more problematic, the majority emphasizes that the 

district court “signal[ed]” to the Appellants “about their need 

to file in the proper district,” Maj. Op. at 5, as if the 

signalling had the legal effect of a final decision on the 

matter.1 The Appellants, however, did not know at that point that 

venue was “improper” in the Northern District of Alabama and 

cannot be faulted for failing to act on the judge’s mere passing 

comments during the hearing. Moreover, counsel had to know, and 

it seems they did know,2 that the district court at this point 

could have, and should have, transferred the Title VII claims. 

 1 I am quite uncertain what to make of the majority’s 

observation that Appellants “[f]ail[ed] to recognize the Alabama 

district court’s signal about their need to file in the proper 

district,” Maj. Op. at 5, or how, precisely, that supports the 

outcome reached by the majority. It is true that at the hearing 

on the motion to amend in this case, Chief Judge Blackburn said 

what the majority attributes to her. But, local legal culture 

being whatever it is in the Northern District of Alabama, the 

judge also referred during the hearing to counsel by his 

nickname, “Bob.” J.A. 263. I have previously acknowledged that 

“local legal culture drives [certain] practices.” Robinson v. 

Wix Filtration Corp. LLC, 599 F.3d 403, 414 (4th Cir. 2010) 

(Davis, J., concurring); Priestley v. Astrue, 651 F.3d 410, 420 

(4th Cir. 2011) (Davis, J., concurring). Nevertheless, deciding 

cases in this circuit on the basis of ostensible “signals” sent 

by out-of-circuit district judges to out-of-circuit lawyers in 

cases heard outside this circuit does not commend itself to me. 

2

 See J.A. 255 (citing, in consent to severance, a case for 

the proposition that “the ‘interests of justice generally 

instructs courts to transfer cases to the appropriate judicial 

district, rather than dismiss them’”) (brackets and ellipses 

omitted); Appellants’ Br. 3 (“Rather than transferring such 

claims, however, Chief Judge Blackburn dismissed them without 

prejudice to refiling in the Eastern District of Virginia.”).
20

See 28 U.S.C. §§ 1404(a), 1406(a); Goldlawr, Inc. v. Heiman, 369 

U.S. 463, 467 (1962); see also J.A. 517 (district judge in the 

Eastern District of Virginia noting that the Court’s analysis in 

Goldlawr “could perhaps have been employed” to justify granting 

the motion and then transferring). And furthermore, the majority 

seems to believe that most of the Appellants’ claims could have 

been “saved” at this point by filing elsewhere. See Maj. Op. at 

5 (“[O]nly 76 days had passed since the EEOC issued the April 24 

right-to-sue letters.”). The majority turns a blind eye to the 

whole truth: Only two named plaintiffs received the April 24 

right-to sue letters; more than 90 days had passed since 29 of 

the named plaintiffs had received the right-to-sue letters. 

Second, the majority conveniently omits important facts 

that show the fundamental unfairness of the result it reaches.

The Appellants did not engage in delay or unwisely “gamble” on 

their claims by engaging in baseless litigation in the Northern 

District of Alabama. Maj. Op. at 17 (quoting J.A. 519). Rather, 

they had a sound legal basis for their belief that venue was 

proper for the Title VII claims in the Northern District of 

Alabama. They asserted that under Title VII each named plaintiff 

did not need to independently show venue was properly laid in 

the district; rather, it was enough for at least one named 

plaintiff to be properly venued. See Appellants’ Br. 40. They 

also asserted that they could rely on venue being proper for six 
21

of the named plaintiffs, or “class representatives,” J.A. 371, 

while the remaining non-Alabama named plaintiffs could remain as 

class members until the court decided whether there would be a 

class. See Appellants’ Br. 40. They also relied on a pendent 

venue argument. See id. Chief Judge Blackburn rejected these 

arguments, but not on the basis of well-established Eleventh 

Circuit precedent.3 Rather, she relied on an unpublished Eleventh 

Circuit case,4 district court cases from other circuits, and the 

doctrine of judicial estoppel. Moreover, as the Appellants point 

 3 Indeed, in making the final argument that leave should be 

denied because venue was improper in its opposition, Dollar Tree 

urged the court to “adopt the view of its sister courts in other 

Circuits and require that each named plaintiff individually 

satisfy the express venue provisions set forth in Title VII” 

“[i]n the absence of Eleventh Circuit authority.” J.A. 241 

(emphasis added).

4 The Eleventh Circuit has said,

“Unpublished opinions are not considered binding 

precedent, but they may be cited as persuasive 

authority.” 11th Cir. R. 36–2. Furthermore, “[t]he 

court may cite to [unpublished opinions] where they 

are specifically relevant to determine whether the 

predicates for res judicata, collateral estoppel, or 

double jeopardy exist in the case, to ascertain the 

law of the case, or to establish the procedural 

history or facts of the case.” 11th Cir. R. 36, I.O.P. 

7.

Borden v. Allen, 646 F.3d 785, 808 n.27 (11th Cir. 2011); see 

also Boutwell v. Advance Constr. Servs., No. 07-0447-WS-C, 2007 

WL 2988238, at *4 n.4 (S.D. Ala. Oct. 11, 2007) (“Even if 

defendant’s construction of [Pinson v. Rumsfeld, 192 F. App’x 

811 (11th Cir. 2006), the case relied upon by Chief Judge 

Blackburn] were valid, which it is not, the fact remains that 

Pinson is unpublished and therefore nonbinding.”).
22

out in their brief, “in an identical case,” a district judge in 

the Northern District of Alabama had ruled “that out-of-state 

Store Managers for a rival dollar store chaing [sic] could bring 

their Title VII claims in the same district as their parallel 

EPA claims.” Appellants’ Br. 36-37 (citing Colvert v. 

Dolgencorp, Inc., Order, No. 2:06-cv-465-veh (N.D. Ala. Nov. 30, 

2007)). Thus, despite having a legal foundation for filing in 

the Northern District of Alabama, because Chief Judge Blackburn 

denied their motion to amend and failed to transfer their 

claims, even though Appellants filed the instant complaint the 

very next day in the Eastern District of Virginia, Appellants 

have been denied their deserved day in court. This is 

unconscionable.

Third, the majority compounds this fundamental injustice by 

relying principally on outside circuit authority, which is not 

on point, instead of more compelling reasoning behind cases 

cited by the Appellants, which are entirely consistent with the 

letter and the spirit of the Federal Rules of Civil Procedure

and the purpose of statutes of limitations generally.5 The 

 5 The Fourth Circuit case the majority relies upon to reach 

its conclusion is inapposite. In Bridges v. Department of 

Maryland State Police, 441 F.3d 197, 206-07 (4th Cir. 2006), 

this court had no reason to directly construe Rule 15, but 

instead considered whether would-be plaintiffs had standing to 

appeal. 
23

majority relies principally on U.S. ex rel. Mathews v. 

HealthSouth Corp., 332 F.3d 293 (5th Cir. 2003), which concerned 

the requirement under Rule 15 to request leave of the court 

before filing an amended complaint. There, the plaintiff only 

ever properly filed the correct documents, a motion requesting 

leave to amend and the amended complaint, after the limitations 

period had run. Id. at 295. Thus, the court had no need to 

address whether, as here, the limitations period is tolled where 

a party moves for leave to file the amended complaint when the 

claims are timely but the motion for leave is not granted. 

The cases relied on by the Appellants, which the majority 

rejects, are also admittedly not directly on point, but are more 

consistent with the purpose behind the rules of civil procedure 

and limitations periods generally. As the majority notes, courts 

have generally concluded that, when a motion for leave to amend 

is later granted, the amended complaint is deemed timely even if 

the court’s permission is granted after the limitations period 

ends. At least one of the underlying reasons justifying this 

result is that plaintiffs “ha[ve] no control over when a court 

renders its decision regarding the proposed amended complaint.” 

Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993); see also

Sellers v. Butler, No. 02-3055-DJW, 2007 WL 2042513, at *12 (D. 

Kan. July 12, 2007) (“To hold otherwise would punish the 

plaintiff for the Court’s unavoidable delay in issuing the order 
24

granting leave to amend the complaint.”). This fairness concern 

applies equally where the motion for leave to amend is granted 

as where it is denied; indeed, the concern is heightened where 

the motion is ultimately denied. It is particularly apt here.

Allowing tolling under this rule is more consistent with 

the policies behind the Federal Rules of Civil Procedure. Rule 

1, which “governs all the rest,” Aikens v. Ingram, 652 F.3d 496, 

519 (4th Cir. 2011) (King, J., dissenting), provides that the 

Federal Rules of Civil Procedure “should be construed and 

administered to secure the just, speedy, and inexpensive 

determination of every action and proceeding.” The Appellants’ 

decision to amend their complaint to add their parallel Title 

VII claims to the pending EPA claims in the Northern District of 

Alabama is wholly consistent with this rule. It was also 

consistent with Rule 23, which “permits and encourages class 

members to rely on the named plaintiffs to press their claims” 

and to avoid a “needless multiplicity of actions,” Crown, Cork & 

Seal Co. v. Parker, 462 U.S. 345, 351-53 (1983), and Rule 15, 

which is to be applied liberally to ensure “that pleadings are 

not an end in themselves but are only a means to assist in the 

presentation of a case to enable it to be decided on the 

merits,” Wright et al., Federal Practice and Procedure § 1473 

(3d ed. 2010). Furthermore, the defendants had notice and would 

not have been prejudiced in any fashion by allowing the case to 
25

proceed to the merits.6 See Crown, Cork & Seal, 462 U.S. at 352 

(“Limitations periods are intended to put defendants on notice 

 6 In dismissing this case, the district judge in the Eastern 

District of Virginia observed:

The court notes at the outset of this discussion 

plaintiffs’ position that any claim by defendant of 

prejudice in this connection is dubious. As noted 

above, this case involves substantially the same named 

plaintiffs (and putative plaintiff class) as those in 

Collins I, suing the same defendant for a claim 

arising out of the same conduct set out in the 

original complaint in Collins I. Moreover, defendant 

clearly had actual notice within the statute of 

limitations period--in the form of the motion for 

leave to amend in Collins I, which attached the 

proposed amended complaint--of plaintiffs’ intent to 

pursue a Title VII claim in addition to its existing 

Equal Pay Act claim. It is therefore entirely 

arguable, and even somewhat persuasive, that 

permitting this case to proceed would not offend the 

admittedly strong policy considerations underlying the 

statute of limitations defense.

J.A. 514-15.

Similarly, in denying the Appellee’s post-judgment motion 

for attorney’s fees and sanctions, the lower court had this 

trenchant observation:

Indeed, in a sense, plaintiffs were merely doing what 

Judge Blackburn’s decision on their motions for leave 

to amend the Collins I complaint forced them to do; 

namely, to bring their Title VII claim as a separate 

action in this court, where, it should be noted, 

defendant had repeatedly argued venue was proper. It 

is somewhat ironic that defendant now seeks to 

characterize as vexatious multiplication of 

proceedings the very act that it had previously 

chastised plaintiffs for not doing; namely, filing 

their Title VII claim against defendant in this court 

instead of in the Northern District of Alabama.

(Continued)
26

of adverse claims and to prevent plaintiffs from sleeping on 

their rights . . . .”). The majority’s ruling contorts the 

purposes of these rules by encouraging multiple filings in 

multiple courts, deterring similar plaintiffs in collective 

actions from bringing parallel claims, and ensuring that this 

case is not decided on the merits.7

At the end of the day, I am confident that if Chief Judge 

Blackburn had any inkling whatsoever that in dismissing rather 

than transferring this action, she would foreclose further 

proceedings, she would take it all back. I would act on that 

confidence and reverse the order dismissing this case and remand 

for further proceedings.8

 

Collins v. Dollar Tree Stores, Inc., Opinion and Order, No. 

2:09-cv-00486-JBF, at 21-22 (E.D. Va. May 28, 2010) (final 

emphasis added).

7 Plainly, under the circumstances of this case, we should 

allow “the limitations period to be tolled during the pendency 

of related litigation because it [is] consistent with the 

[remedial Title VII] statutory scheme and equitable principles 

to do so.” Bowen v. City of New York, 476 U.S. 467, 479 n.11 

(1986) (alterations added); see also Honda v. Clark, 386 U.S. 

484, 501 (1967) (“We consider it much more consistent with the 

overall congressional purpose to apply a traditional equitable 

tolling principle, aptly suited to the particular facts of this 

case and nowhere eschewed by Congress, to preserve petitioners’

cause of action.”).

8 My confidence is bolstered by Chief Judge Blackburn’s 

recognition of the potential harshness of the result, see J.A. 

371, and allusion to the alleged “futility” of the Appellants’ 

Title VII claims. But see J.A. 283 (Chief Judge Blackburn 

(Continued)
27

Respectfully, I dissent.

 

recognizing that Appellants’ time to file a complaint in another 

venue might have run). But in the circumstances of this case, or 

any case for that matter, the ostensible “futility” of a claim 

for purposes of Rule 15’s liberal amendment provisions bespeaks 

the “legal insufficiency” of such a claim, not the simple fact 

of mislaid venue. Cf. Burger King Corp. v. Weaver, 169 F.3d 

1310, 1320 (11th Cir. 1999). After all, the very purpose of the 

venue transfer provisions of 28 U.S.C. §§ 1404(a) and 1406(a) is 

to correct the kind of inconsequential error in selecting venue 

as is apparent in this case.

A simple thought experiment demonstrates the correctness of 

such an outcome. Imagine that a putative class action was timely 

filed under Title VII laying venue in the Western District of 

North Carolina but where, arguably, venue lies only in the 

District of South Carolina. Several months after a hearing on 

the defendants’ contested motion to dismiss (or, as here, 

alternatively, to transfer) for improper venue, and after the 

ninety-day period for filing a new action had expired, the 

district court dismisses the case rather than transferring it to 

South Carolina. I have no doubt that this court would reverse a 

decision of the South Carolina district court dismissing a 

newly-filed action in that district, whether on the basis of 

legal tolling, equitable tolling, or a plain vanilla abuse of 

discretion determination. The same result should obtain here.