Aghadima v. CFT Ambulance Service, No. 1:2012cv00055 - Document 16 (D. Del. 2012)

Court Description: MEMORANDUM OPINION re 7 MOTION to Dismiss Based upon FRCP 12(b)(6). Signed by Judge Richard G. Andrews on 4/19/2012. (nms)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DIANA AGHADIMA, Plaintiff, v. Civil Action No. 12-55-RGA CFT AMBULANCE SERVICE, Defendant. MEMORANDUM OPINION Stephen Price Norman, Esq.; The Norman Law Firm; Wilmington, Delaware; Counsel for Plaintiff Keri Lynn Morris, Esq.; Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware; Counsel for Defendant Jt, 2012 April Wilmington, Delaware I AND Before the Court is a motion to dismiss (D .I. 7) two counts of the three-count Amended Complaint. (D.I. 3). The Plaintiff alleges sex, race, national origin, and religious discrimination in Count I and retaliation in Count II. (Count III alleges a violation of the Equal Pay Act.) The issue is whether the Plaintiff timely filed her lawsuit. She alleges that she filed a "Charge of Discrimination" with the Delaware Department of Labor and the EEOC in March 2010. The EEOC issued a Notice of Right to Sue Letter on October 13,2011. The Plaintiff(in some unspecified way) gave a copy of the Notice to her counsel on January 17, 2012. Counsel filed suit the next day, January 18, 2012. (D.I. 3, ~~ 27-29). There is no allegation that the Plaintiff received the Notice on any particular date. The Notice of Right to Sue is attached to the Amended Complaint. It states that, "Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice." It indicates that it was mailed on October 13, 2011, to the Plaintiff, at an address in New Castle, Delaware. The address is the same address that she gives as her residence in the Amended Complaint. (D.I. 3, ~ 4). For purposes of measuring the 90 days, we do not count the day of mailing. Thus, the lawsuit was filed on the 95 1h day after the Notice was issued. The date of issuance is not the key date, though; it is the day the Plaintiff received the Notice. When the actual date of receipt is known, that date is used. See Seitzinger v. Reading Hasp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). When the actual date is unknown, three days after mailing are allowed. See id.; Fed. R. Civ. P. 6(d). The Amended Complaint makes no allegation from which one could infer that "equitable tolling" applies. Following the briefing on the motion to dismiss, the Plaintiff submitted an Affidavit, in which she states that she did not receive the Notice until October 26, 2011. (D.I. 15). She explains that she moved from the New Castle address, to a Wilmington address, in August 2011. Her Affidavit also states that the EEOC "was notified" of her change of address, but does not state who did the notifying and how she would know about it. The Plaintiffs briefing does contain a letter dated October 24, 2011, from the EEOC to her at her Wilmington address. (D.I. 11). In view of the foregoing, I will dismiss without prejudice Counts I and II of the Amended Complaint for failure to include any factual allegations showing that those two counts were timely filed.

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