Clark v. Paragon Systems, Inc. , 224 F. App'x 360 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
In The United States Court Of Appeals April 3, 2007
For The Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 06-30934
Summary Calendar
THOMAS CLARK,
Plaintiff–Appellant,
v.
PARAGON SYSTEMS, INC.,
Defendant–Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
No. 2:06-CV-01307
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
The district court dismissed Thomas Clark’s disability discrimination claim because
he failed to file his complaint within ninety days after he received notice of his right to sue
from the Equal Employment Opportunity Commission.1 We affirm.
Clark clearly did not file his lawsuit within ninety days of receipt, but the filing-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
See 42 U.S.C. §§ 12117 & 2000e-5(f)(1).
deadline calculation was complicated by inaccessibility of the district court following
Hurricanes Katrina and Rita and a district court order that suspended deadlines and delays,
including liberative prescriptive and preemptive periods in all civil cases, until November 25,
2005. But even if the ninety-day-period did not begin until November 25, 2005, which the
defendant disputes, Clark’s complaint had to be received by the clerk of the court no later
than February 23, 2006. Although Clark mailed his complaint on February 14, 2006, it was
not received by the clerk until March 9, 2006. If a complaint is mailed, “filing” is
accomplished only when the complaint is actually received by the clerk, and filings reaching
the clerk’s office after a deadline are untimely even if mailed before the deadline.2 “[H]aving
chosen to transmit the [complaint] by mail service, [Clark] assumed the risk of any untimely
delivery and filing of [his complaint].”3
Clark appears to argue that the postmark date should be used in this case, contending
there were “‘mailing’ problems that were going on at that time with court proceedings,
deadlines, phones, filing motions, moving to different locations, etc.” and stating “how really
bad [the New Orleans] courts were (in terms of damages, loss of employees) after
Hurricane[s] Katrina and Rita.”4 Clark does not contend, however, that there was any actual
2
Scott v. United States Veteran’s Admin., 929 F.2d 146, 147 (5th Cir. 1991); see also FED.
R. CIV. P. 5(e) (“The filing of papers with the court as required by these rules shall be made by filing
them with the clerk of the court . . . .”). But see generally Houston v. Lack, 487 U.S. 266 (1988)
(recognizing a “mailbox” exception for incarcerated litigants).
3
Bad Bubba Racing Prods., Inc. v. Huenefeld, 609 F.2d 815, 816 (5th Cir. 1980) (concerning
the filing of a notice of appeal in the context of a bankruptcy proceeding).
4
Emphasis omitted.
2
impediment to filing his complaint by February 23, 2006. Although the result seems harsh,
Clark chose to risk the vagaries of the postal delivery system despite circumstances that
militated against doing so and failed to monitor whether the clerk had received his complaint
within the prescribed filing period.
AFFIRMED.
3