ORTIZ v. AUTOMOTIVE RENTALS, INC., No. 1:2009cv03002 - Document 22 (D.N.J. 2010)

Court Description: MEMORANDUM OPINION AND ORDER that judgment is entered in defendant's favor, and the case is dismissed with prejudice. Signed by Judge Noel L. Hillman on 08/31/2010. (tf, )

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ORTIZ v. AUTOMOTIVE RENTALS, INC. Doc. 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY SHEILA ORTIZ, Plaintiff, v. CIVIL NO. 09-3002(NLH)(AMD) AUTOMOTIVE RENTALS, INC., Defendant. MEMORANDUM OPINION & ORDER APPEARANCES: JAMES M. CARTER LAW OFFICES OF HOFFMAN DIMUZIO 4270 ROUTE 42 TURNERSVILLE, NJ 08012 On behalf of plaintiff HARRIS NEAL FELDMAN MICHAEL J. WIETRZYCHOWSKI SCHNADER, HARRISON, SEGAL & LEWIS, LLP 220 LAKE DRIVE EAST SUITE 200 CHERRY HILL, NJ 08002-1165 On behalf of defendant HILLMAN, District Judge This matter having come before the Court as a follow-up to its August 10, 2010 Opinion and Order denying defendant’s motion for sanctions, which requested the dismissal of plaintiff’s complaint and the imposition of attorney’s fees and costs because plaintiff refused to voluntarily withdraw his case for failure to comply with the Equal Employment Opportunity Commission’s civil lawsuit filing deadline; and In that Opinion, the Court having also found that it was indisputable that plaintiff’s case was impermissibly filed beyond the EEOC’s 90-day filing deadline, and that there was no evidence that equitable tolling principles should have extended the window; Dockets.Justia.com and The Court having further found that it appeared that defendant was entitled to judgment as a matter of law, and that a district court has discretion to grant summary judgment sua sponte in appropriate circumstances; but The Court having also recognized that before entering judgment in defendant’s favor, the Court was required to provide plaintiff with prior notice and an opportunity to oppose summary judgment; and Accordingly, the Court having allowed plaintiff 15 days to file a brief addressing why summary judgment should not be entered in defendant’s favor; and On August 25, 2010, plaintiff’s counsel having filed a letter to the Court (1) asking that the Court refrain from entering judgment in defendant’s favor, (2) stating that he intends to withdraw the complaint “without prejudice,” and (3) indicating that he has provided a form order of dismissal to defense counsel for approval; and On that same day, defense counsel having filed a letter in reply, stating that he objects to the proposed order, which dismisses the complaint “without prejudice, with the parties to bear their own costs,” because plaintiff’s claims should be dismissed “with prejudice” due to his statute of limitations violation; and The Court noting that Fed. R. Civ. P. 41 governs the dismissal 2 of actions, and that a voluntary dismissal, or one pursuant to court order, under this Rule is considered a dismissal without prejudice; and The Court further noting that Rule 41 allows a plaintiff to voluntarily withdraw his complaint at any time prior to the filing of an answer or a motion for summary judgment; but The Court finding that because defendant had filed its answer to plaintiff’s complaint, and because plaintiff’s claim is currently the subject of a pending sua sponte summary dismissal, a voluntary dismissal pursuant to Rule 41 is not available to plaintiff; and The Court further finding that the EEOC’s 90-day filing deadline is treated as a statute of limitations rather than a jurisdictional prerequisite to suit, and failure to comply with this 90-day window requires the dismissal of a complaint “with prejudice,” see Elkadrawy v. Vanguard Group, Inc., 584 F.3d 169, 173 (3d Cir. 2009); Therefore, IT IS HEREBY on this 31st day of August, 2010 ORDERED that judgment is entered in defendant’s favor, and the case is dismissed with prejudice. s/ Noel L. Hillman At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J. 3

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