Willis v. W. H. Braum, Inc. , 80 F. App'x 63 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 28 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
EVA WILLIS,
Plaintiff - Appellant,
No. 02-7038
v. (D.C. No. 01-CV-353-P)
(E.D. Okla.)
W. H. BRAUM, INC., f/k/a Braum’s
Ice Cream Stores, Inc.,
Defendant - Appellee.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
No. 02-7039
v. (D.C. No. 01-CV-215-P)
(E.D. Okla.)
W. H. BRAUM, INC., d/b/a Braum’s
Ice Cream and Dairy Store, an
Oklahoma corporation,
Defendant - Appellee.
EVA WILLIS,
Movant - Appellant.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
Before EBEL, BALDOCK, and KELLY, Circuit Judges.
Eva Willis sued W.H. Braum, Inc. (“Braum”) in Oklahoma state court
alleging state claims of employment discrimination based on disability and
intentional infliction of emotional distress. Ms. Willis’s claims were
subsequently removed to federal court and consolidated with a suit brought on her
behalf by the Equal Employment Opportunity Commission (“EEOC”) against
Braum for violations of the federal Americans with Disabilities Act (“ADA”).
The district court dismissed Ms. Willis’s claims after determining they were time-
barred under the applicable statute of limitations. The court also denied Ms.
Willis’s motion to intervene in the EEOC’s case. We affirm the dismissal of Ms.
Willis’s state claims and remand for further consideration of Ms. Willis’s motion
to intervene.
Background
Eva Willis claims she applied for a position at Braum’s store in Madill,
Oklahoma on December 1, 1997, and was told it was not hiring. Aplt. App. at 20.
On December 4, 1997, Ms. Willis alleges she saw a fellow female high school
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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student interviewed and hired by Braum while she was in the store. Id. Ms.
Willis was born with a cleft palate and cleft lip which has caused a cosmetic
disfigurement and a speech impediment, and she alleges this disability is the basis
for Braum’s actions. Id. at 96. Ms. Willis subsequently contacted the Oklahoma
Human Rights Commission (“OHRC”), id. at 94, and filed a charge of
discrimination with the EEOC on or before August 3, 1998, id. at 56.
On November 29, 1999, while the EEOC was still reviewing Ms. Willis’s
claim, she filed suit against Braum in federal district court, asserting three claims:
a claim for employment discrimination based on disability under the ADA, a state
employment discrimination claim, and a state intentional infliction of emotional
distress claim. Id. at 19-22. Before Braum filed an answer, on December 27,
1999, Ms. Willis filed a pleading entitled “Dismissal Without Prejudice” with the
court. Id. at 57. The court construed it as a motion for dismissal and filed an
Order on January 5, 2000, dismissing the action without prejudice. Id. at 23.
On April 16, 2001, the EEOC brought suit against Braum on Ms. Willis’s
behalf alleging violations of the ADA. Id. at 28-32. Ms. Willis again filed suit in
state court on January 2, 2001, re-asserting only her state law claims of
discrimination and intentional infliction of emotional distress. Id. at 24-27.
Braum removed the state case to federal court where it was consolidated with the
EEOC action on July 17, 2001. Id. at 41.
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On December 31, 2001, the district court dismissed Ms. Willis’s claims as
time-barred under the Oklahoma state statute of limitations. Id. at 116. The court
alternately found Ms. Willis’s state employment discrimination claim barred due
to Ms. Willis’s failure to timely file a charge of discrimination with the OHRC or
the EEOC. Id. at 118 n.1. In the same order, the court concluded that because
Ms. Willis was time-barred from re-asserting her federal ADA claim, the EEOC
was barred from seeking individual relief on her behalf. The court therefore
limited the EEOC to injunctive relief. Id. at 119. In a contemporaneous opinion,
we have reversed those determinations and held neither Ms. Willis nor the EEOC
is time-barred because it is inappropriate to import a state statute of limitations to
apply to federal ADA claims. See EEOC v. W.H. Braum, Inc., ____ F.3d ____
(2003) (No. 02-7046).
Following dismissal of her state claims, Ms. Willis moved to intervene in
the EEOC’s action as a matter of right on January 24, 2002. Aplt. App. at 144-
51. The court denied intervention, stating in a subsequent order that “[t]his court
denied the motion . . . based on the December 31, 2001 order . . . and Fed. R. Civ.
P. 24(a) as intervention at this late date in the proceedings would cause undue
delay and prejudice.” Id. at 158 n.3.
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Discussion
Appellant contends that she is not time-barred under the applicable statute
of limitations and that she filed her charge of discrimination with the EEOC and
OHRC in a timely manner. In addition, appellant claims the district court
incorrectly denied her right to intervene in the EEOC’s suit. Whether Ms. Willis
is precluded under the statute of limitations from bringing her claim is a question
of law which we review de novo. United States v. Hurst, 322 F.3d 1256, 1259
(10th Cir. 2003). We review a district court’s rulings on motions to intervene as
of right de novo, Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 90
(10th Cir. 1993), but we review the district court’s determinations regarding
timeliness under an abuse of discretion standard. Coalition of Ariz./N.M.
Counties for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 840 (10th
Cir. 1996).
I. Limitations
Under Oklahoma state law, the statute of limitations for a state
discrimination claim is “two (2) years after a timely filing of a charge with the
Oklahoma Human Rights Commission.” Okla. Stat. Ann. tit. 25, § 1901(E);
Duncan v. City of Nichols Hills, 913 P.2d 1303, 1310 (Okla. 1996). Likewise, a
two year statute of limitations applies to Ms. Willis’s intentional infliction of
emotional distress claim. Okla. Stat. Ann. tit. 12, § 95(3); Williams v. Lee Way
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Motor Freight, Inc., 688 P.2d 1294, 1297-98 (Okla. 1984). The parties agree that
Ms. Willis’s state claims, filed on November 29, 1999, were timely because they
were filed within the required two year period. However, Ms. Willis dismissed
those claims without prejudice and did not file the present suit until January 2,
2001, after the two year statute of limitations had expired on each of the claims.
Ms. Willis claims that the Oklahoma savings statute applies in this case to
save her claims. The Oklahoma savings statute provides that:
If any action is commenced within due time, and . . . the plaintiff fail
in such action otherwise than upon the merits, the plaintiff . . . may
commence a new action within one (1) year after the reversal or
failure although the time limit for commencing the action shall have
expired before the new action is filed.
Okla. Stat. Ann. tit. 12, § 100. Ms. Willis contends that her claim was dismissed
without prejudice as of January 5, 2000, the date of the court’s order of dismissal,
and therefore she had until January 5, 2001, to refile under the savings statute.
We disagree.
Ms. Willis filed a voluntary “Dismissal Without Prejudice” 1 on December
27, 1999, under Fed. R. Civ. P. 41(a). Rule 41(a) provides that a plaintiff may
dismiss an action by “filing a notice of dismissal at any time before service by the
1
The Dismissal stated in full:
COMES NOW Eva Willis by and through her attorney, Dan Little,
and hereby dismisses the above entitled cause without prejudice.
Aplt. App. at 57.
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adverse party of an answer.’” Fed. R. Civ. P. 41(a)(1)(i). When the plaintiff files
a notice under Rule 41(a)(1), it terminates the action automatically and “no order
of the court is needed.” Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507
(10th Cir. 1968). Plaintiff’s Dismissal Without Prejudice was filed prior to the
filing of an answer by Braum, and therefore it is appropriately characterized as a
notice of dismissal by plaintiff under Rule 41(a)(1)(i). Under Oklahoma’s
savings statute, therefore, Ms. Willis had until December 27, 2000, to refile her
claims. Because she did not refile until January 2, 2001, the district court
correctly held that her claims should be dismissed as time-barred under the
applicable statute of limitations.
Ms. Willis urges this court to apply the savings statute as of the date of the
court’s order (January 5, 2000) rather than the date of her dismissal (December
27,1999). But it is well settled that when a plaintiff files a voluntary dismissal
under Rule 41(a)(1)(i), the dismissal is self-executing and the filing itself
dismisses the matter. See Hyde, 388 F.2d at 507; see also Commercial Space
Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1078 (9th Cir. 1999) (“[I]t is beyond
debate that a dismissal under Rule 41(a)(1) is effective on filing, no court order is
required, the parties are left as though no action had been brought, the defendant
can’t complain, and the district court lacks jurisdiction to do anything about it.”);
Marex Titanic, Inc. v. Wrecked and Abandoned Vessel, 2 F.3d 544, 546 (4th Cir.
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1993) (concluding the dismissal is “self-executing . . . and no judicial approval is
required”); Am. Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963)
(The notice “itself closes the file. There is nothing the defendant can do to fan
the ashes of that action into life and the court has no role to play. This is a matter
of right running to the plaintiff and may not be extinguished or circumscribed by
adversary or court.”). Once Ms. Willis filed her voluntary dismissal her case was
automatically terminated and the court’s order was unnecessary. The action was
dismissed as a matter of law as of December 27, 1999, and not on January 5,
2000, the date of the court’s order.
Because the claims were dismissed as of December 27, 1999, Ms. Willis
was required under the savings clause to refile by December 27, 2000. Because
she failed to refile her claims until January 2, 2001, her claims are barred by the
statute of limitations. In addition, in light of the plain language of the rule and
the clear precedent interpreting Rule 41(a)(1), we decline to equitably toll the
statute of limitations based on reliance on the court’s erroneous January 5 order.
Because Ms. Willis’s claims were correctly dismissed as time-barred by the
district court, it is unnecessary to determine whether she filed her charge with the
OHRC within the statutorily required time period.
II. Intervention
Finally, Ms. Willis challenges the denial of her motion to intervene in the
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EEOC’s suit. Under Fed. R. Civ. P. 24(a), “[u]pon timely application anyone
shall be permitted to intervene in an action . . . when a statute of the United States
confers an unconditional right to intervene.” The statutory language of Title VII,
42 U.S.C. § 2000e-5(f)(1), which has been incorporated into the ADA, grants the
charging employee an unconditional right to intervene in cases brought by the
EEOC. EEOC v. Mo. Pac. R.R. Co., 493 F.2d 71, 74 (8th Cir. 1974). However,
Rule 24 does include a limitation on this right–the motion must be timely.
Nevilles v. EEOC, 511 F.2d 303, 305 (8th Cir. 1975).
The district court denied Ms. Willis’s application for intervention in a
Minute Order on February 19, 2002, “based on the December 31, 2001 order . . .
and Fed. R. Civ. P. 24(a) as intervention at this late date in the proceedings would
cause undue delay and prejudice.” Aplt. App. at 158. In the court’s December
31, 2001 order, in addition to dismissing Ms. Willis’s personal claims, the court
also limited the EEOC to injunctive relief. Based on the court’s order that the
EEOC could no longer pursue individual relief on Ms. Willis’s behalf and the
posture of the case at that time, it was not an abuse of discretion to deny
intervention. However, this court has reversed the district court’s December 31,
2001 order and held the EEOC is not barred from asserting individual relief on
Ms. Willis’s behalf. See EEOC v. W.H. Braum, Inc., ____ F.3d ____ (2003) (No.
02-7046). Based on these changed circumstances and the strong precedent in
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favor of intervention, see Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S.
318, 331 (1980) (the individual aggrieved party is given the right to intervene to
protect their personal interests, which may at times be in conflict with those of the
EEOC); Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001)
(“This circuit takes a somewhat liberal line in allowing intervention.”) (citations
omitted)); Winbush v. State of Iowa By Glenwood State Hosp., 66 F.3d 1471,
1478-79 (8th Cir. 1995) (permitting intervention ten years after complaint was
filed and after conclusion of the bench trial); Nat’l Farm Lines v. I.C.C., 564 F.2d
381, 383-84 (10th Cir. 1977), we reverse and remand on the issue of intervention.
Upon remand, the district court should determine whether the motion to intervene
should be denied solely under Fed. R. Civ. P. 24(a) on the basis that the
intervention would have caused undue delay and prejudice.
We AFFIRM the dismissal of plaintiff’s state law claims, REVERSE the
denial of intervention, and REMAND for further proceedings consistent with this
opinion.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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