letters that claimants must sue the respondent(s) “WITHIN NINETY (90) DAYS OF YOUR
RECEIPT OF THIS NOTICE: OTHERWISE YOUR RIGHT TO SUE IS LOST.” Although
Plaintiff received her right-to-sue letter on August 2, 2002, she did not file her complaint until November
1, 2002 - 92 days after her receipt of the letter.

Plaintiff contends that she was mislead by an employee of the Office of the Clerk when she
attempted to file her complaint on October 25, 2002, five days before the expiration of the 90-day
deadline. On that day, a clerk purportedly informed her that the Office of the Clerk would not accept
her complaint until she circled the jurisdictional component of her complaint. The clerk allegedly told
Plaintiff that she “had plenty of time” to make the correction and file her complaint. See Clark Aff. ¥
13. In support of her contention, Plaintiff cites Scary v. Philadelphia Gas Works, 202 F.R.D. 148, 153
(B.D. Pa. 2001), in which the clerk of court incorrectly informed the pro se plaintiff that he had “done
everything required of him,” even though he had not yet paid the filing fee. The Scary court allowed
equitable tolling, finding that the clerk’s statement was untrue and had induced plaintiff to file late. See
id. Scary is distinguishable. Here, Plaintiff has not alleged that the statements of the clerk were untrue.
Indeed, the clerk here may have told Plaintiff the truth by asking her to complete the jurisdictional basis
section of her complaint. Furthermore, we cannot find the clerk’s alleged statement that plaintiff “had
plenty of time” to circle a jurisdictional statute of the complaint misleading. At the time the clerk
informed Plaintiff of her remaining duty, Plaintiff still had five days to file her complaint. We do not
conclude that the clerk’s statement could be construed as instructing the Plaintiff that the ninety-day
limitation was inapplicable.

A court may grant equitable tolling where the claimant has “actively pursued his judicial

remedies,” Irwin, 498 U.S. at 96, and “for situations in which the claimant has made a good faith error.”

Jones, 744 F.2d at 1314. For example, equitable tolling is justified where a plaintiff timely files a

4.



000489
UNITED STATES DISTRICT COURT F iLED-En
NORTHERN DISTRICT OF ILLINOIS £04

_ SI: Hd e2 ene eo

Lancelot Johnson, Robert Johnson and Mark Pogoe
Williams, WSS nC! Ogu T
7 ui |
Plaintiffs,
No. 01-C-08882
v. John Darrah MOCKETED
Ford Motor Company, Inc. and Hertz Corporation, JUL 03-2003
Inc.,
Defendants.
FORD MOTOR COMPANY’S

MOTION TO ALLOW PRO HAC VICE APPEARANCE
Ford Motor Company by its counsel, moves the appearances pro hac vice of Lee Mickus and
Brent Anderson as its counsel.
In support of this motion, Ford attached the Applications For Leave to Appear Pro Hac
Vice of Lee Mickus and Brent Anderson and states they have paid the requisite fee to the Clerk of
the Court, and have designated John A. Krivicich, Donohue Brown Mathewson & Smyth, already

of record, as their local counsel.

DONOHUE BROWN MATHEWSON & SMYTH

By:

Jobst A. Krivicich

1.D. #32878

DONOHUE BROWN MATHEWSON & SMYTH
John A. Krivicich

Virginia L. Beach

140 South Dearbor, Suite 700

Chicago, IL 60603

(312) 422-0900


Health Care Corp., 920 F.2d 446, 451 (7th Cir.1990) (emphasis added), cert. denied 111 S.Ct. 2916
(1991).

Finally, Plaintiff asks that we equitably toll the statute of limitations because of her pro se status.
A pro se complaint is held to "less stringent standards than formal pleadings drafted by lawyers.” See
Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir.1999). However, Plaintiff's pleadings are not at issue
here. The Supreme Court has held that a plaintiff's pro se status at the time of filing does not
automatically or independently justify equitable tolling. See Baldwin County Welcome Ctr., 466 U.S.
at 152, Moreover, courts in the Northern District have held that "the time limit is not flexible, even for
pro se litigants." Davis v. Browner, 113 F. Supp. 2d 1223, 1226 (N.D. Ill. 2000); see also Wilson v.
Doctors Hosp. of Hyde Park, 909 F. Supp. 580, 581 (N.D. Ill. 1996) (pro se plaintiff cannot file claim
beyond statutory 90-day period without specified basis for equitable tolling). In consideration of the
established law, Plaintiff's pro se status will not alter our decision to not equitably toll the statute of
limitations in this case.“
Ti. CONCLUSION

Otion to dismiss. It is so ordered.

MARVIN E. ASPEN
United States District Judge

For the foregoing reasons, we grant Defendan

Dated 2, [; (a) 3

‘While we acknowledge the difficulties faced by litigants without the resources to pay for
legal assistance, plaintiff has not pled the exceptional circumstances required to justify equitable
tolling.

-6-



complaint, but files it in the wrong court. See Burnett v. New York Central R. Co., 380 U.S. 424, 85
S.Ct. 1050, 13 L.Ed.2d 941 (1965). Plaintiff in this case did not timely file in the wrong court. In fact,
Plaintiff did not timely file at all. Although she brought the complaint into the clerk’s office on the 85"
day, she had not completed it. Plaintiff did not, therefore, actively pursue a judicial remedy.

Plaintiff further argues that extraordinary circumstances prevented her from filing her complaint
after her visit to the Office of the Clerk on October 25, 2002. Those extraordinary circumstances consist
of her illness on the 89" and 90" days, as well as her daughter’s dental appointment on the 91" day. The
threshold necessary to trigger equitable tolling is very high. See United States v. Marcello, 212 F.3d
1005, 1010 (7th Cir.2000)(holding equitable tolling inappropriate even where attorney’ father died three
weeks prior to the deadline). Here, Plaintiffs sudden illness and her daughter’s dental appointment do
not meet the high threshold requirement necessary to invoke the doctrine of equitable tolling. One who
fails to act diligently cannot invoke equitable principles to excuse that lack of diligence. See Baldwin
County Welcome Ctr., 466 U.S at 151. Plaintiff could have filed her complaint prior to her illness or
made arrangements to file on the days she was ill. Furthermore, a dental appointment does not excuse
her absence from the courthouse on the ninety-first day. Although Plaintiff was only two days late in
completing the complaint, the length of the delay in filing has no bearing on this analysis; equitable
tolling will apply only to exceptional cases, regardless of how minimal the delay in filing. See Marcello,
212 F.3d at 1010.

Plaintiff's incorrect assumption that only business days counted towards the ninety-day
limitation, as well as her unsuccessful attempts to obtain free legal services, do not amount to goof faith
error. Equitable tolling “permits plaintiff to avoid the bar of the statute of limitations if, despite al/ due

diligence, he is unable to obtain vital information bearing on the existence of his claim." Cada v. Baxter

5-



~

Lancelot Johnson v. Hertz Corporation, et al.
Court No. 01 c 08882
Our File No. 00 0489

Service List

Counsel for Lancelot Johnson, Robert Johnson and Mark Willia
Melvin Brooks

Cochran, Cherry, Givens, Smith & Montgomery, L.L.C.

One North LaSalle Street, Suite 2450

Chicago, IL 60602

Tek 312.977.0200
Fax: 312.977.0209

Counsel for Hertz Corporation
Rita M. Filiaggi

Gerald V. Cleary, Ill

O'Hagan, Smith & Admunsen
150 N. Michigan Avenue
Suite 3300

Chicago, IL 60601

Tel: 312.894.3200
Fax: 312.894.3210

E-Mails: ffiliaggi@osalaw.com gacleary@osalaw.com
Counsel for Ford Motor Company

Lee Mickus

Brent Anderson

Snell & Wilmer

1200 17" Street, Suite 19
Denver, CO 80202

Tel: 303.634.2000
Fax: 303.634.2020


“Minute Order Form (06/97)

TL United States District Court, Northern District of Illinois

i Sitting Judge If Oth
Nandy Magltrate Juane Marvin Aspen ian Avigoed Judge
CASE NUMBER 02 C 7933 DATE 7/1/2003
CASE Arminita Clark vs. Residents’ Journal
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) oa Brief in support of motion due

3) a] Answer brief to motion due. » Reply to answer brief due .

(4) ia Ruling/Hearing on set for at

(5) Qa Status hearing[held/continued to] [set for/re-set for] on set for at

(6) Oo Pretrial conference[held/continued to} [set for/re-set for] on set for at :

(”) Oo Trial[set for/re-set for] on at

(8) Qo [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OLocal Rule 41.1 CIFRCP41(a)(1) OC FRCP41(a)(2).

(10) [i [Otherdocketentry] Enter Memorandum Opinion and Order: Plaintiff's incorrect assumption that
only business days counted towards the ninety-day limitation, as well as her unsuccessful attempts to
obtain free legal services, do not amount to goof faith error. Equitable tolling permits plaintiff to avoid
th bar of the statute of limitations if, despite all due diligence, he is unable to obtain vital information
bearing on the existence of his claim. Defendant’s motion to dismiss (15-1) is granted. In court hearing
set for 7/17/03 is stricken.

(1) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.
a | Notices mailed by judge’s staff.
Notified counsel by telephone,
Docketing to mail notices. '
| Mail AO 450 form. ey
sia‘st
Copy to judge/mapistrate judge. yunod Aes
urtrooi . - Wr BU
GL deputy’s get wa 17 WN aw
initials
Da ey WI
mie Resa ——



a

000489

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS . ery

FiLED-EL
Lancelot Johnson, Robert Johnson and Mark gi: Hd £2 nar €0
Williams, ne otf
Plaintiffs, YS. diGeet CSURT
No. 01-C-08882
v. John Darrah

Ford Motor Company, Inc. and Hertz Corporation,

Ine, - DORKETED

Defendants. q JUL 03-2003

OF MOTI

TO: See Attached Service List

PLEASE TAKE NOTICE that on t -| 2003, at_41 2) ¢62/p.m., or as soon
thereafter as this motion may be heard, we shall appear before the Honorable John Darrah, in Room
, or any Judge sitting in its place or stead, in the Courtroom usually occupied by them in the United
States District Court, Northern District of Illinois, Chicago, IL, and, present Ford Motor

Company’s Motion to Allow Pro Hac Vice Appearances, a copy of which is attached hereto.

DONQHUE BROWN MATHEWSON & SMYTH

1D. #32878

DONOHUE BROWN MATHEWSON & SMYTH
John A. Krivicich

140 South Dearborn

Suite 700

Chicago, IL 60603

(312) 422-0900

PROOF OF SERVICE

I, Valetta B Jackson, a non-attomney, on oath hereby certifies under penalties of perjury as provided
by law pursuant to Ill. Rev. Stat., ch. 110, par. 1-109 [735 ILCS 5/1-109], that the above notice and any
attached pleading(s) were () personally delivered or (X) placed in the U.S. Mail at 140 South Dearborn
Street, Chicago, Illinois, with first class postage prepaid and directed to the parties at the addresses set forth
above at or before 5:00 p.m. on June 23, 2003.

ZZ



as true and draw all reasonable inferences in the plaintiff's favor. See MCM Partners, Inc. v. Andrews-
Bartlett & Assoc., Inc., 62 F.3d 967, 972 (7th Cir.1995), aff'd 161 F.3d 443 (7th Cir.1998), cert. denied
528 U.S. 810(1999). Therefore, a complaint should not be dismissed "unless it appears beyond all doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

Defendant alleges that Plaintiff cannot state a claim because the statute of limitations has tolled.
Title VII requires a plaintiff to file suit in federal court within 90 days of receiving a right-to-sue letter
from the EEOC. See 42 U.S.C. §2000e-5(f)(1). The 90-day filing period may be waived or equitably
tolled in certain situations. See Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127,
1132 (1982); See also Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 104 S.Ct. 1723 (1984)(per
curiam). Equitable tolling is appropriate where the claimant has actively pursued her judicial remedies
or has been induced or tricked into allowing the filing deadline to pass. See Irwin v. Dep't of Veterans
Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457-58 (1990). The Seventh Circuit has interpreted the Supreme
Court's opinion in Baldwin County Welcome Center as suggesting "that equitable tolling is appropriate
where the plaintiff is mislead by the defendant or notified improperly of her rights by the court." Brown
v. Reliable Sheet Metal Works, Inc., 852 F.2d 932, 934 (7th Cir.1988). The Seventh Circuit has further
held that when the plaintiff has made a good faith error or has been prevented in some extraordinary way
from filing her complaint on time, equitable tolling is appropriate. See Jones v. Madison Serv. Corp.,
744 F.2d 1309, 1312 (7th Cir.1984) (citation omitted).

B Discussion

As an initial matter, we conclude that Plaintiff failed to file her complaint in a timely manner.
Plaintiff claims she was never told about the 90-day requirement. See Clark Aff. J 18-19. To the

contrary, Plaintiff's right-to-sue letter, which is attached to the complaint, plainly states in bold, capital

-3-



claimants must sue the respondent(s) “WITHIN NINETY (90) DAYS OF YOUR RECEIPT OF
THIS NOTICE: OTHERWISE YOUR RIGHT TO SUE IS LOST.” Although she was aware that
there was a time limit for filing her complaint, Plaintiff believed that she had three months, or until
November 2, 2002, in which to file her complaint. Plaintiff speculated that she may have had even
longer than November 2, 2002 in which to file because she was unaware that weekends counted toward
the 90-day period.

Plaintiffunsuccessfully sought free legal assistance prior to first attempting to file her complaint.
She attempted to file her complaint in federal court on October 25, 2002, but an employee of the Office
of the Clerk informed her that her complaint was incomplete because she needed to complete the
jurisdictional component. The clerk told her that she “had plenty of time” to make the correction and
file her complaint. Plaintiff subsequently attempted to secure legal assistance from Vista Legal Services
to complete her complaint, but was again unsuccessful. On October 29, 2002, and October 30, 2002,
Plaintiff became ill and was confined to her bed. She did not file her complaint on either day. On
October 31, 2002, Plaintiff took her daughter to a dental appointment.’ She did not file her complaint
on that day. Plaintiff filed her complaint on November 1, 2002 —92 days after receiving her right-to-sue
letter.
i ANALYSIS

A. Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is to decide the adequacy of the
complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th

Cir.1990). In considering a motion to dismiss, we must accept all well-pled allegations in the complaint

3 Plaintiff claims this appointment was for her daughter’s toothache and that if she had to
reschedule, her daughter might have spent several more weeks without dental care. See Pl. Mem. in
Opp. to Def. Mot. to Dismiss at 7.

-2-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ARMINITA CLARK, )
Plaintiff, )
v. } Case No. 02 C 7933
RESIDENTS' JOURNAL, }
Defeat } DORETED
) JUL 04-2003
Mi OPINIO: ND. )3

MARVIN E. ASPEN, District Judge:

Plaintiff Arminta Clark filed a pro se complaint against her former employer, Defendant
Residents’ Journal, alleging that it discriminated against her based on her religion in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e. Presently before us is Defendant’s motion to
dismiss for failure to state a claim because the statute of limitations governing Plaintiff's claim has
tolled, For the reasons set forth below, we grant Defendant’s motion.

I. BACKGRO'! y

Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity

Commission (“EEOC”) alleging religious discrimination, and received a Notice of Right To Sue (“right-

to-sue letter”) on August 2, 2002.? Plaintiff's right-to-sue letter plainly states in bold, capital letters that

' For the purposes of a motion to dismiss, we must accept all well-pled allegations as true
and construe the complaint in a light most favorable to the plaintiff. See MCM Partners, 62 F.3d
967, 972 (7th Cir.1995).

2 The traditional presumption is that the right-to-sue letter is received five days after it is
issued. See Loyd v. Sullivan, 882 F.2d 218 (7th Cir.1989). However, the Seventh Circuit has held that
in certain cases, the 90-day period does not commence until the plaintiff actually obtains physical
possession of the right-to-sue letter issued by the EEOC. See Houston v. Sidley & Austin, 185 F.3d
837, 839 (7th Cir.1999) (citations omitted). Because Plaintiff admits receiving the right-to-sue letter
on August 2, 2002, see Clark Aff. {1, she therefore had constructive notice beginning on that date.
See Luttrell v. O'Connor Chevrolet, Inc., 2001 WL 1539045 at *2 (N.D. Ill. 2001). 4