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McCarthy v. AT&T Mobility Services LLC

United States District Court, N.D. Illinois, Eastern Division

December 21, 2017

Brian McCarthy, Plaintiff,
AT&T Mobility Services LLC, Defendant.



         Plaintiff Brian McCarthy sued defendant AT&T Mobility Services LLC (“AT&T”) for employment discrimination. AT&T moves to dismiss McCarthy's complaint as untimely and barred by res judicata. R. 27. For the following reasons, the Court denies AT&T's motion.


         McCarthy brings employment discrimination claims against AT&T under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. R. 1, 20. Before filing this lawsuit, McCarthy exhausted his administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). The EEOC issued McCarthy a right to sue notice on November 14, 2016, which advised him that his lawsuit must be filed within 90 days of receipt of the notice. R. 20 at 7. McCarthy alleges that he received the notice on November 19, 2016.Id. at 3.

         On February 13, 2017-86 days after receiving the right to sue notice- McCarthy filed his initial complaint. R. 1. McCarthy also filed an application to proceed in forma pauperis and a motion for appointment of counsel. R. 4; R. 5. On February 23, this Court denied McCarthy's application to proceed in forma pauperis and his motion for appointment of counsel. R. 7.[1] The Court advised that “[f]ailure of plaintiff to pay the filing fee on or before March 23, 2017 will result in dismissal of this action.” Id.

         As of March 29, McCarthy had not paid the filing fee. The Court therefore dismissed the case “with prejudice for failure to comply with this Court's 2/23/2017 order” and entered judgment. R. 8; R. 9. On April 11, McCarthy moved to reopen the case. R. 11. McCarthy failed to appear at the hearing on his motion to reopen, so this Court denied the motion. R. 14.

         McCarthy again moved to reopen the case on April 19, R. 15, and this time he appeared for the April 26 hearing date. At the hearing, McCarthy represented that he had not received the Court's notice instructing him to pay the filing fee by March 23. R. 19; see also R. 10; R. 12 (motions to reopen representing same). The Court granted McCarthy's motion to reopen the case and directed him “to pay the filing fee by 5/1/2017 and serve the defendant.” R. 19. McCarthy promptly complied, paying the filing fee and filing a second complaint-identical to his first-on April 26, the same day as the hearing. R. 20.

         The parties subsequently appeared for a status conference, and the Court set a discovery schedule. R. 25. Several weeks later, AT&T moved to dismiss. R. 27.


         AT&T moves to dismiss under Fed.R.Civ.P. 12(b)(6) on timeliness and res judicata grounds. Rule 12(b)(6) is the proper vehicle for AT&T's timeliness argument based on McCarthy's alleged failure to comply with the 90-day time limit set forth in his right to sue notice. See, e.g., Davis v. Potter, 301 F.Supp.2d 850, 855 (N.D. Ill. 2004). Res judicata, on the other hand, is an affirmative defense that should be raised in an answer and then in a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010).

         AT&T's “error” in moving to dismiss on res judicata grounds under Rule 12(b)(6) “is of little consequence because the same legal standard applies under Rule 12(c) and 12(b)(6).” Pacult v. Walgreen Co., 2011 WL 13209584, at *2 (W.D. Wis. June 14, 2011) (citing Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)); accord Carr, 591 F.3d at 913 (finding “error” “in dismissing the case under Rule 12(b)(6)” to be “of no consequence”). “Therefore, rather than require [AT&T] to resubmit its motion, [the Court] will treat its Rule 12(b)(6) motion on res judicata grounds as a Rule 12(c) motion for judgment on the pleadings.” Pacult, 2011 WL 13209584, at *2.

         The standard for analyzing motions to dismiss under Rule 12(b)(6) and Rule 12(c) is identical. Buchanan-Moore, 570 F.3d at 827. A Rule 12(b)(6) motion challenges the sufficiency of the complaint. E.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The statement must give defendant “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Mann, 707 F.3d at 877 (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.

         In evaluating a pro se complaint, the Court applies a less stringent standard than it applies to formal pleadings drafted by lawyers. Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015). But the Court need not ignore facts set forth in the complaint that undermine the plaintiff's claim, and the Court is not required to accept the ...

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