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Curd v. W.T. Capital Lending


August 15, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge


Defendant W.T. Capital Lender Services*fn1 moves to dismiss pro se Plaintiff Jeremy Curd's Title VII employment discrimination complaint on the ground that it is barred by the statute of limitations provided in 42 U.S.C. § 2000e-5(f)(1). Plaintiff has not filed an opposition. Having considered all papers filed, the Court GRANTS the motion to dismiss.


In his Title VII form complaint, Plaintiff alleges that Defendant failed to employ him on the basis of his race or color in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e)-5. In the appropriate box in the form complaint, Plaintiff filled in the date that he received the right-to-sue letter from the Equal Employment Opportunity Commission (EEOC) as on or about "10-04." Plaintiff's complaint was filed on February 10, 2005. Plaintiff also alleges that Defendant discriminated against him on the basis of his race or color by "denial of insurance with contract."


Section 2000e-5(f)(1) of Title VII provides, in relevant part: If a charge filed with the [EEOC] pursuant to subsection (b) of this section is dismissed by the [EEOC], . . . the [EEOC] . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge by the person claiming to be aggrieved . . .

The ninety-day filing period within which the claimant must file a civil action is a statute of limitations. Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th Cir. 1986). It begins when the claimant receives his right-to-sue letter from the EEOC. Lynn v. Western Gillette, Inc., 564 F.2d 1282, 1286 (9th Cir. 1977). Assuming that Plaintiff received his right-to-sue letter on October 31, 2004, the last day of the month he alleges he received it, to meet the ninety-day filing requirement, he would have had to file his complaint by January 29, 2005. Plaintiff filed his complaint on February 10, 2005, twelve days after the deadline. Therefore, Defendant is correct that Plaintiff's Title VII claim is barred by the applicable statute of limitations. While it is possible that Plaintiff could allege grounds for equitable tolling, he filed no opposition for Defendant's motion to dismiss. Therefore, Plaintiff's Title VII claim is DISMISSED without prejudice for failure to prosecute.

Defendant does not address the additional allegation in Plaintiff's complaint that Defendant denied "insurance with contract." In the space for elaborating on the facts surrounding his insurance with contract claim, Plaintiff wrote, "Last Page!!!." The last page attached to the complaint is a handwritten note which refers to the renovation of the San Francisco International Airport (SFO). It seems to indicate that SFO has a property lien and Defendant is somehow related to the lien. The note also implies that Defendant is the insurance holder for the United States military as well as SFO and Host Marriott International. The allegation in the complaint and the attached document do not state a claim because it is impossible to ascertain what Plaintiff means by it or what cause of action is based on it. Because Plaintiff has failed to oppose Defendant's motion to dismiss, this putative claim is dismissed based on failure to prosecute.


For the foregoing reasons, Defendant's motion to dismiss the complaint is GRANTED. Plaintiff's Title VII claim and his second putative claim are dismissed without prejudice for failure to prosecute. The case management conference scheduled for August 19, 2005 is vacated.

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