Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 08-1101

LESLIE J. MCGILL,

Plaintiff, Appellant,

v.

U.S. EXPRESS TRUCK COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Lynch, Chief Judge,

Torruella and Boudin, Circuit Judges.

Leslie J. McGill on brief pro se.

H. Andrew Matzkin and Mintz, Levin, Cohn, Ferris, Glovsky

and Popeo, P.C. on brief for appellee.

September 3, 2008
 Although the record does not indicate when McGill received 1

the EEOC right to sue letter, assuming that she received it in the

mail three days after it was issued, the 90-day limitations period

began on May 18, 2007, the day after receipt. Fed. R. Civ. P.

6(a), (d). At the earliest, therefore, the limitations period

expired on August 15, 2007.

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Per Curiam. Pro se appellant Leslie J. McGill seeks

review of the dismissal of her employment discrimination complaint

against her previous employer, appellee U.S. Express Truck Co. of

Ohio. The district court dismissed McGill's amended complaint as

time-barred and denied her motion to amend as futile. As the

following discussion will show, McGill's timely-filed in forma

pauperis ("IFP") motion and application tolled the statute of

limitations.

There is no dispute that McGill filed (and the clerk

docketed) her original complaint and IFP application on August 10,

2007, before the expiration of the 90-day limitations period for

filing a complaint following receipt of the EEOC right to sue

letter. 42 U.S.C. § 2000e-(5)(f)(1) (Title VII) and 29 U.S.C. § 1

626(e) (Age Discrimination in Employment Act). On September 5,

2007, the district court denied McGill's IFP application (without

prejudice) because it was incomplete, and it ordered her to file a

new application or pay the filing fee within 35 days. Two days

later, McGill filed a new IFP application and an amended complaint.

The district court granted the new IFP application on September 12,

2007.
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Appellee moved to dismiss for failure to state a claim

under Fed. R. Civ. P. 12(b)(6). After hearing on this motion on

December 11, 2007, the district court gave McGill 30 days in which

to seek leave to further amend her complaint, apparently to prove

that she had exhausted her administrative remedies. That same day,

McGill filed a "second amended complaint" to which was attached a

copy of her EEOC right to sue letter, dated May 14, 2007.

Treating this pleading as a motion for leave to amend,

appellee filed its opposition, arguing that leave should be denied

and the case should be dismissed. According to appellee, McGill's

complaint could not be considered "filed" until she submitted a

proper and complete IFP application, and this she had failed to do

until September 7, 2007, well after the 90-day limitations period

had expired in mid-August. The district court agreed. It denied

the motion for leave to amend as "futile" and summarily dismissed

the case.

In this circuit, "advance payment of a filing fee is

generally not a jurisdictional prerequisite to a lawsuit."

Casanova v. Dubois, 304 F.3d 75, 80 (1st Cir. 2002); Bolduc v.

United States, 189 F. Supp. 640 (D. Me. 1960). Where an IFP

application is subsequently granted, the complaint is deemed timely

filed if it was presented to the court along with the IFP motion

within the limitations period. Williams-Guice v. Board of Educ., 45
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F.3d 161, 163 (7th Cir. 1995); Jarrett v. U.S. Sprint

Communications Co., 22 F.3d 256, 259 (10th Cir. 1994).

The filing of the IFP application tolled the limitations

period until the court ruled on it. Jarrett, 22 F.3d at 259. When

the court denied the original IFP application, it did so without

prejudice and it gave McGill 35 days in which to file a new

application or pay the filing fee. Instead, she filed her new

application in two days. Assuming that the limitations period

started running again on the day the first IFP application was

denied, three more days still remain on the clock. Thus both

McGill's original complaint and her ultimately successful IFP

application were filed within the limitations period. 

Even if the district court had denied McGill's amended

IFP application, she would have been entitled to a reasonable time

in which to pay the filing fee. Williams-Guice, 45 F.3d at 163 (15

days); Jarrett, 22 F.3d at 259 (reasonable grace period permitted).

There is simply no basis in this record for dismissing McGill's

complaint as time-barred.

Vacated and remanded. Costs shall be taxed in favor of

appellant. Fed. R. App. P. 30(a)(4).