Lax v. Mayorkas, 20 F.4th 1178, 1182 (7th Cir. 2021) (some alterations in Lax).

The following factual allegations taken from the First Amended Complaint [32] are accepted as true for the purpose of resolving the motion to dismiss. See Lax v. Mayorkas, 20 F.4th 1178, 1181 (7th Cir. 2021).

Therefore, as a general rule, a court cannot consider the exhibits attached to a motion to dismiss. Lax v. Mayorkas, 20 F.4th 1178, 1181 n. 1 (7th Cir. 2021).

Generally, the 90-day filing window opens when the claimant or his or her attorney “actually receives” the right-to-sue notice that accompanies the EEOC's determination of charge. See Lax v. Mayorkas, 20 F.4th 1178, 1182 (7th Cir. 2021) (quoting Jones v. Madison Serv. Corp., 744 F.2d 1309, 1312 (7th Cir. 1984)); accord Reschny v. Elk Grove Plating Co., 414 F.3d 821, 823 (7th Cir. 2005); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 849-50 (7th Cir. 2001); Bobbitt v. Freeman Cos., 268 F.3d 535, 538 (7th Cir. 2001).

Other courts agree that “receipt” of notice starts the ninety-day clock. See, e.g., Lax v. Mayorkas, 20 F.4th 1178, 1182 (7th Cir. 2021) (“Though there is potential for discrepancy between these two texts (the statute says the filing window starts with the agency's ‘giving' of notice of the final decision, while the regulations state that the window starts only upon the claimant's ‘receipt' of the agency's final decision), this Court has held that the filing window begins when a claimant or his attorney ‘actually receives' the right-to-sue notice that accompanies the agency's final decision.”); Lynn v. W. Gillette, Inc., 564 F.2d 1282, 1286 n.3 (9th Cir. 1977) (“It is the receipt of a Right to Sue letter, not its dispatch, which sets the beginning of ninety-day period.”);

” Lax v. Mayorkas, 20 F.4th 1178, 1182 (7th Cir. 2021).

The Court finds Paniconi, Taylor, and Moses instructive. Those cases are consistent with Lax v. Mayorkas, wherein the Seventh Circuit found the 90-day window under 42 U.S.C. § 2000e-5(f)(1) commenced when the plaintiff received email notice, not when he opened the attached letter, and affirmed dismissal of an employment discrimination complaint that was filed one day late. 20 F.4th 1178, 1181 (7th Cir. 2021). Here, Plaintiff received electronic notice of his Notice of Right to Sue on September 29, 2021, and downloaded the Notice on October 6, 2021.

The following factual allegations taken from the operative complaint (Dkt. 1-1) are accepted as true for the purposes of the motion to dismiss. See Lax v. Mayorkas, 20 F.4th 1178, 1181 (7th Cir. 2021).

And while we are not aware of a controlling case directly on point, our holding is not without support. Take Lax v. Mayorkas, where our sister circuit held that the employee's "[90]-day filing window started on the day he received" an email from the EEOC with his right-to-sue letter attached. 20 F.4th 1178, 1181-82 (7th Cir. 2021). It did not matter "that he did not read or open the attachment" because his "mere receipt of the email commence[d] the filing window."

Because the district court dismissed the case for failure to state a claim, we give plaintiffs the benefit of their factual allegations and draw reasonable inferences in their favor. Lax v. Mayorkas , 20 F.4th 1178, 1181 (7th Cir. 2021). Plaintiffs are Greenpoint Tactical Income Fund LLC and several affiliated entities and individuals.