United States District Court, N.D. Mississippi, Oxford Division
PAUL JESSIE WEBB, JR. PLAINTIFF
NEWK'S BAKERY DEFENDANT
Court currently has before it Defendant Newk's
Bakery's motion to dismiss. Doc. 8. For the reasons set
forth below, the Court finds the motion should be denied.
Paul Webb brings an employment discrimination claim under 42
U.S.C. § 2000e, et seq. On February 16, 2018,
Webb mailed to the Clerk of the Court his complaint in this
matter, Doc. 1, and a motion to proceed in forma pauperis,
Doc 2. It is unclear whether this initial mailing contained
an EEOC right to sue letter, although he did indicate in his
complaint that he had received such a letter. See
Compl., Doc 1. at 4. The Clerk of the Court did not docket
Webb's complaint at that time.
11, 2018, the Clerk of the Court received additional
documents from Webb. These included a letter from the EEOC,
dated July 3, 2018, indicating that the EEOC received notice
that Webb did not receive his right to sue letter when it was
initially issued on August 22, 2017. It was thus resending
the notice to Webb.
day the Clerk received this letter, the Clerk docketed
Webb's complaint, including the initial EEOC right to sue
letter and the second July 3, 2018 letter. On July 19, 2018,
Court approved Webb's in forma pauperis application. The
Court issued a summons directing the United States Marshal
Service to serve process on Newk's. The proof of service
returned by the Marshal Service indicated that service by
mail was attempted unsuccessfully on September 5, 2018, and
that personal service was made on September 12 on the manager
of Newk's Oxford location. See Doc. 14.
September 5, 2018, prior to being served, Newk's filed
the now pending motion. In its motion, Newk's first seeks
dismissal under 12(b)(6), arguing the complaint was untimely
filed because it was filed more than 90 days after Webb
received August 22, 2017 right to sue letter. Second,
Newk's seeks dismissal under (12)(b)(5), arguing that
service was not made in a timely manner, because Webb did not
serve Newk's within 90 days of filing his lawsuit on
February 16, 2018.
has filed no response to Newk's motion, even though this
Court sua sponte granted him an additional 20 days
to do so. See Doc. 15.
12(b)(6) Motion to Dismiss
deciding a Rule 12(b)(6) motion to dismiss, the Court is
limited to the allegations set forth in the complaint and any
documents attached to the complaint. Walker v. Webco
Indus., Inc., 562 Fed.Appx. 215, 216-17 (5th Cir. 2014)
(citing Kennedy v. Chase Manhattan Bank USA, NA, 369
F.3d 833, 839 (5th Cir. 2004)). "[A plaintiffs]
complaint therefore 'must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.'" Phillips v. City of
Dallas, Tex., 781 F.3d 772, 775-76 (5th Cir. 2015)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
is facially plausible when the pleaded factual content
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[P]laintiffs must
allege facts that support the elements of the cause of action
in order to make out a valid claim." Webb v.
Morella, 522 Fed.Appx. 238, 241 (5th Cir. 2013) (quoting
City of Clinton, Ark. v. Pilgrim's Pride
Corp., 632 F.3d 148, 152-53 (5th Cir. 2010)
(internal quotation marks omitted)). "[C]onclusory
allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to
dismiss." Id. (quoting Fernandez-Montes v.
Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.
1993) (internal quotation marks omitted)). "Dismissal is
appropriate when the plaintiff has not alleged 'enough
facts to state a claim to relief that is plausible on its
face' and has failed to 'raise a right to relief
above the speculative level.'" Emesowum v. Hous.
Police Dep't, 561 Fed.Appx. 372, 372 (5th Cir. 2014)
(quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct.
IVV plaintiff has 90 days from the date of receipt of a right
to sue letter to file suit. Jenkins v. City of San
Antonio Fire Dep't, 784 F.3d 263, 266 (5th Cir.
2015) (citing 42 U.S.C. § 2000e-5(f)(1)). The failure to
meet that 90-day deadline is an affirmative defense.
Aleman v. Texas, 803 F.Supp. 10, 12 fn.l. A claim
may be dismissed due to an affirmative defense under 12(b)(6)
only "if [the] successful affirmative defense appears
clearly on the face of the pleadings." Myers v.
Guardian Life Ins. Co. of Am., 5 F.Supp.2d 423, 427
(N.D. Miss. 1998).
asserts that in Webb's complaint, which he initially
signed on February 16, 2018, Webb checked a box admitting
that he had previously received the right to sue letter dated
August 22, 2017. Since February 16, 2018, is well over 90
days August 22, 2017, Newk's argues the complaint was
clearly not timely filed.
however, does little to address the July 3, 2018 EEOC letter,
which indicated that Webb had not received his right to sue
letter until July 2018. In a single footnote, Newk's
argues that the Court should ...