Opinion
Case No. 2:3-CV-671 TS.
July 6, 2004
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
On December 23, 2003, Defendant ACS Government Services, Inc. (ACS) filed its Motion to Dismiss Plaintiff's Amended Complaint with the Court. The primary argument in the attached memorandum was that Plaintiff Russell Pueblo had failed to file a charge of discrimination within 300 days of the discriminatory event, which was a prerequisite for filing his complaint in this case. Mr. Pueblo responded with a Motion for Leave to File Amended Complaint, in order to remedy the deficiency. This motion was denied by Magistrate Judge Brooke Wells on March 4, 2004. Mr. Pueblo appealed Judge Wells' ruling to this Court, stating that Judge Wells' "denial of the motion is effectively dispositive of Mr. Pueblo's case, because if the date listed in his first Amended Complaint is used as the date Mr. Pueblo filed his charge of discrimination, then his charge was untimely, and he cannot bring a lawsuit in federal court based on that charge." This Court affirmed the denial of the Motion for Leave to File Amended Complaint in an order dated June 24, 2004.
Mr. Pueblo's attempts to amend his complaint having failed, the deficiency in the Complaint remains, namely, that he admits to having filed his complaint of discrimination 344 days after the discrimination took place, which is 44 days beyond the deadline for filing. This problem, as Mr. Pueblo admits in the above quotation, is fatal to his case. Thus, because Mr. Pueblo's charge of discrimination was untimely filed, his claim under the Age Discrimination in Employment Act is dismissed.
Mr. Pueblo's state-law contract claim against ACS is also dismissed. Because the ADEA claim was the basis for federal jurisdiction in this case, the state-law contract claim comes before the Court by pendent jurisdiction, dependent on the federal law claims. "If federal claims are dismissed before trial, leaving only issues of state law, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice." Bauchman for Bauchman v. West High Sch., 132 F.3d 542, 549 (10th Cir. 1997), cert. denied, 524 U.S. 953 (1998) ( internal quotations ommitted). In his Opposition to Defendant's Motion to Dismiss, Mr. Pueblo agrees that "this court would lose jurisdiction of this case if the ADEA claim was dismissed . . ." Accordingly, Mr. Pueblo's contract claim is dismissed without prejudice.
SO ORDERED.