In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1632

EARL KELLY PRINCE,

Plaintiff-Appellant,

v.

MARILYN STEWART, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 5849—Ronald A. Guzmán, Judge.

SUBMITTED JULY 29, 2009—DECIDED SEPTEMBER 2, 2009

Before POSNER, COFFEY, and MANION, Circuit Judges.

POSNER, Circuit Judge. Earl Kelly Prince worked for the

Chicago Teachers Union until he was fired in the

summer of 2004. In November he filed a charge of discrimination with the Illinois Department of Human

Rights. When almost a year passed without any response

from either the Department or the EEOC, he filed this

lawsuit against the union and several of its officers. The

complaint charges employment discrimination in viola-
2 No. 08-1632

tion of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.; race discrimination in

violation of the Constitution, actionable under 42 U.S.C.

§ 1981; and breach of contract under Illinois law.

The district court dismissed the suit in December 2006,

without prejudice, because Prince had not obtained a rightto-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f); 29

U.S.C. § 626(e). The EEOC finally sent him a right-to-sue

letter in April 2007, but it was returned by the post office

as unclaimed. The Commission mailed the letter again,

and Prince acknowledges having received it on July 25.

Nine days later he filed a motion to reopen his case. The

district judge granted the motion, as he was authorized to do by Rule 60(b)(6) however the motion was

captioned. Ahmed v. Dragovich, 297 F.3d 201, 208-09 (3d Cir.

2002); cf. Chambers v. City of Fordyce, 508 F.3d 878, 881 (8th

Cir. 2007) (per curiam). That subsection of Rule 60(b) is

broad enough (see, e.g., Klapprott v. United States, 335 U.S.

601, 614-15 (1949); Donald v. Cook County Sheriff’s Dep’t,

95 F.3d 548, 553-54, 558 (7th Cir. 1996); Knox v. Lichenstein,

654 F.2d 19, 21-22 (8th Cir. 1981))—it authorizes the

setting aside of a final judgment on any ground not

specified in the preceding subsections (“any other reason

justifying relief from the operation of the judgment”)—to

encompass the reopening of a proceeding that had been

dismissed without prejudice because it had been filed

prematurely. But when a few days after the motion

was granted Prince asked to withdraw it because he

would be out of state and unable to proceed with the case
No. 08-1632 3

immediately, the judge vacated the order that he had

entered reopening the case, and so the dismissal of

Prince’s suit stood.

On October 23, 2007, exactly 90 days after receiving

the re-sent right-to-sue letter, Prince filed a second

motion to reopen. The judge responded three weeks

later by denying the motion and stating that if Prince

wanted to pursue his claims he would have to bring a

new lawsuit. He could not do that, because by now the

statute of limitations had expired. Instead he filed a

“motion for clarification” in which he argued that he

should be allowed to proceed without filing a new complaint because he had moved (the reference is to the

second motion) to reopen his case within 90 days after

receiving the right-to-sue letter and so within the

statutes of limitations applicable to his employmentdiscrimination claims; the 90 days run from the date of

receipt, not of mailing. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C.

§ 626(e); Reschny v. Elk Grove Plating Co., 414 F.3d 821, 823

(7th Cir. 2005); Houston v. Sidley & Austin, 185 F.3d 837, 838-

39 (7th Cir. 1999). The district judge denied the motion,

telling Prince that litigation is not a “yo-yo game” and

“you can’t come in here every other week and change

your mind about whether or not you want the case to

go forward.”

Prince appeals from the denial of his second motion to

reopen. The defendants argue that we lack jurisdiction

of the appeal because he didn’t file a notice of appeal

within 30 days of the order dismissing his complaint.

But he is not asking us to review that dismissal. His
4 No. 08-1632

second motion to reopen, like his first, was authorized by

Fed. R. Civ. P. 60(b)(6)—and indeed exemplifies the use

of the rule as “the proper remedy for situations where

a series of misunderstandings took place between

counsel [in this case the litigant himself, since he had no

lawyer] and the district judge.” Knox v. Lichtenstein, supra,

654 F.2d at 22; see also International Association of Heat &

Frost Insulators & Asbestos Workers, 516 F.2d 504 (5th

Cir. 1975) (per curiam). And the denial of such a motion

is reviewable independently of the earlier order

dismissing the complaint. SEC v. Van Waeyenberghe, 284

F.3d 812, 814 (7th Cir. 2002) (per curiam). And despite

its caption the motion that Prince filed within 10 days

for clarification of the denial of his second motion challenged the legal basis for the denial and is therefore

deemed a motion to alter or amend that denial within

the meaning and 10-day deadline of Fed. R. Civ. P. 59(e).

Martinez v. City of Chicago, 499 F.3d 721, 727 (7th Cir.

2007). Prince appealed within 30 days of the denial of

that timely motion, which makes his appeal also timely.

Id. at 724-25.

We thus have jurisdiction and can proceed to the

merits of the second motion to reopen. Prince filed the

motion as we said on the ninetieth day after receiving

the EEOC’s right-to-sue letter. Had he instead refiled

his original complaint that day he would have been

entitled to an adjudication of his claims because his

suit would have been timely. But of course by the time

the motion was denied it was too late for him to bring

a new suit; his 90 days had expired.
No. 08-1632 5

When the district judge granted Prince’s first motion to

reopen this told Prince—a pro se litigant—that moving to

reopen was a permissible way to proceed now that he

had obtained the right-to-sue letter. Prince should not

have followed up the grant of the motion by asking the

court to halt proceedings and reinstate the dismissal of

his suit because he was not yet ready to proceed. There

was as yet no schedule telling the parties when to file

what, so there was no need for Prince to worry about

not being able to proceed immediately with the further

stages of the litigation. He made a mistake in asking the

judge to reinstate the dismissal of this suit, but the

mistake harmed no one. It merely irritated the judge.

The defendants argue that the second motion to

reopen was properly denied because Prince filed it 97 days

after the EEOC re-sent the right-to-sue letter. But the

limitations period in both Title VII and the ADEA begins

to run, as we said, when the claimant receives the letter,

not when it was sent, and Prince claims to have first

received it on the ninetieth day before he filed the motion. The defendants, who have the burden of proving that

the suit was untimely, e.g., Mosely v. Board of Education, 434

F.3d 527, 535 (7th Cir. 2006); Tregenza v. Great American

Communications Co., 12 F.3d 717, 718 (7th Cir. 1993); Ebbert

v. DaimlerChrysler Corp., 319 F.3d 103, 108 (3d Cir. 2003),

may be able to prove that Prince received the first mailing

but deliberately or carelessly refused to open it, or was

otherwise responsible for not reading it; in either of those

events the limitations period would have begun to run in

April 2007 and his suit would be time-barred. Reschny v.

Elk Grove Plating Co., supra, 414 F.3d at 823; Covington v.
6 No. 08-1632

Illinois Security Service, Inc., 269 F.3d 863, 865 (7th Cir.

2001); Kerr v. McDonald’s Corp., 427 F.3d 947, 952 (11th Cir.

2005) (per curiam); Graham-Humphreys v. Memphis Brooks

Museum of Art, Inc., 209 F.3d 552, 558 (6th Cir. 2000); Hunter

v. Stephenson Roofing, Inc., 790 F.2d 472 (6th Cir. 1986). A

motion to reopen may not be used to extend the statute of

limitations when there is no ground for tolling the statute.

But at this stage there is no indication of why the letter

initially was unclaimed, and so we must (though only

provisionally) take Prince at his word that, through no

fault of his own, he first received it on July 25. St. Louis v.

Alverno College, 744 F.2d 1314, 1317 (7th Cir. 1984).

Assuming the second motion was timely, we can’t see

any reason for the district court’s having denied it and by

doing so prevented Prince from pursuing what for all

we know is a meritorious case. This is not a case like

Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984)

(per curiam), where instead of filing a complaint within

90 days of receiving the right-to-sue letter the plaintiff

filed the letter and asked the court to deem it a complaint. The district court in that case had done nothing

to confuse the plaintiff about how to proceed; nor had

she any other excuse that would have justified tolling

the 90-day statute of limitations. In this case, by granting

the plaintiff’s initial motion to reopen, the district court

lulled him into thinking he didn’t have to refile his complaint; and lulling a pro se litigant provides a valid basis

for invoking equitable tolling to stop the running of the

statute of limitations, as in Warren v. Department of the

Army, 867 F.2d 1156 (8th Cir. 1989). Equitable tolling is

properly invoked in any case in which “the court has led
No. 08-1632 7

the plaintiff to believe that she had done everything

required of her,” Baldwin County Welcome Center v. Brown,

supra, 466 U.S. at 151, or has “misled a party regarding the

steps that the party needs to take to preserve a claim.”

Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005); see, e.g.,

Seitzinger v. Reading Hospital & Medical Center, 165 F.3d

236, 240 (3d Cir. 1999); Browning v. AT&T Paradyne,

120 F.3d 222, 227 (11th Cir. 1997); Carlile v. Spouth Routt

School District Re 3-J, 652 F.2d 981, 986 (10th Cir. 1981); cf.

Early v. Bankers Life & Casualty Co., 959 F.2d 75, 81 (7th

Cir. 1992); Anderson v. Unisys Corp., 47 F.3d 302, 306-07

(8th Cir. 1995); Martinez v. Orr, 738 F.2d 1107, 1112

(10th Cir. 1984).

The judgment of the district court is therefore reversed

and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

9-2-09