Opinion
No. 03 Civ. 10330 (AJP).
February 28, 2005
OPINION AND ORDER
Plaintiff Locke commenced this action against defendant Lance Investigation Service, Inc. in December 2003. (Dkt. No. 1: Compl.) The complaint asserts a complaint for discrimination under Title VII. (Dkt. No. 1: Compl. Dkt. No. 4: Amended Compl., 1st page.) The parties consented to decision in this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 14.)
"Where, as here, `the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'"Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. Peck, M.J.) (quoting C. Wright, A. Miller M. Kane, Federal Practice Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).
The amended complaint makes clear that plaintiff Locke received the EEOC's right to sue letter by no later than March 12, 2003. (See Locke Complaint Form to Post Office, attached to Am. Compl.) Under Title VII, Locke was required to commence this action within 90 days of receipt of the EEOC right to sue letter. See, e.g., Marshall v. National Ass'n of Letter Carriers, 03 Civ. 1361, 2003 WL 22519869 at *10 (S.D.N.Y. Nov. 7, 2003) (Peck, M.J.) ("Title VII requires a complaint to be filed within 90 days . . . of receipt of an EEOC right to sue letter.") (citing cases); Heard v. MTA Metro-North Commuter R.R., 02 Civ. 7565, 2003 WL 22176008 at *2-3 (S.D.N.Y. Sept. 22, 2003) ("Having received the right-to-sue letter, the claimant has ninety days to bring suit."); Toolan v. Board of Ed., 02 Civ. 6989, 03 Civ. 576, 2003 WL 22015437 at *2 (S.D.N.Y. Aug. 25, 2003) ("To be timely, actions for violations of Title VII . . . must be filed within 90 days after receipt of a right to sue letter from the EEOC. . . . As the Second Circuit has held, `in the absence of a recognized equitable consideration the court cannot extend the limitations period by even one day.'");Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *24 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.) ( cases cited therein);Taylor v. Henderson, 99 F. Supp. 2d 434, 437 (S.D.N.Y. 2000) (Peck, M.J.); McFarland v. Metro-North Commuter R.R., 993 F. Supp. 210, 210 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.) ("An employment discrimination suit under Title VII must be filed within 90 days of plaintiff's receipt of a right to sue letter from the EEOC. . . . [F]ailure to bring suit within the prescribed 90-day limit is grounds for dismissal."); Fletcher v. Runyon, 980 F. Supp. 720, 721 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.). That period expired no later than June 10, 2003, but plaintiff did not commence this action until December 2003.
The 90 day period, however, is not jurisdictional, but rather is a statute of limitations. E.g., Johnson v. A1 Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) ("The Supreme Court . . . has evinced a policy of treating Title VII time limits not as jurisdictional predicates, but as limitations periods subject to equitable tolling."); see, e.g., Colon v. Potter, No. 01-6246, 51 Fed. Appx. 43, 45, 2002 WL 31558049 at *2 (2d Cir. Nov. 19, 2002) ("The time limits within Title VII are not jurisdictional prerequisites; rather, they are limitations periods subject to equitable tolling."); Arroyo v.Westlb Admin., Inc., No. 99-7942, 213 F.3d 625 (table), 2000 WL 562425 at *1 (2d Cir. May 9, 2000) ("[T]he issue is not jurisdictional in nature. Accordingly, `like a statute of limitations,' the issue is `subject to waiver, estoppel, and equitable tolling,' and [party's] failure to raise it before the District Court constitutes a waiver.") (citations omitted); see also cases cited immediately above.
Defendant Lance Investigation originally was represented by counsel (The Catafago Law Firm); defendant's answer did not raise the statute of limitations time bar as an affirmative (or any other) defense. (See Dkt. No. 12: Answer.) Moreover, defendant's counsel sought permission for defendant Lance Investigation to withdraw its answer so as to allow it to default, which the Court granted by Order date January 19, 2005. (Dkt. No. 16.) Thus, defendant Lance Investigation has waived any statute of limitations defense.
The Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "`as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). Here, the Court called for written submissions. Plaintiff Locke submitted a "Statement of Damages," while defendant Lance Investigation did not submit anything. The Court also held a hearing on February 28, 2005, at which plaintiff Locke appeared and testified, and defendant Lance Investigation did not appear.
Plaintiff Locke requested $32,115.20 for lost wages for a year. (Statement of Damages.) Locke supported that request by attaching payroll records from Lance Investigation showing that Locke earned $617.60 a week. (Payroll Records.) At the inquest hearing, however, in response to the Court's question, plaintiff Locke testified that immediately after he was terminated by Lance, he found a new job, at greater pay. Thus, he is not entitled to damages for lost wages. He testified, however, that he was docked a week's pay by Lance as part of the discrimination he faced. Thus, he should receive $617.60 in lost wages.
Plaintiff also seeks $160 as Clerk's fee and $75 for the process server. (Statement of Damages, p. 1.) Plaintiff has attached the receipt for the $160. While plaintiff has not provided a receipt for the process server's fee, the Court finds it reasonable. The Court therefore awards the $235. Plaintiff Locke also seeks $240 for a gun carry permit, that Lance was supposed to reimburse him for but did not. He also seeks reimbursement of $500 that he was forced to pay for a "lost" radio that he had not lost, but that was part of Lance's harassment. The Court awards both amounts.
CONCLUSION
The Court awards plaintiff Locke default damages of $1,592.60. The Clerk of Court is to enter Judgment accordingly.SO ORDERED.