United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON MOTION TO DISMISS
William T. Lawrence, Judge United States District Court.
cause is before the Court on the Defendant's motion to
dismiss Counts 1 and 2 of the Plaintiff's Complaint (Dkt.
No. 13). The motion is fully briefed and the Court, being
duly advised, GRANTS the motion for the
reasons set forth below.
Counts 1 and 2 of her Complaint, the Plaintiff alleges that
her employment was terminated by the Defendant in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000e et seq. (“Title
VII”) and the Americans with Disabilities Act, 42
U.S.C. §§ 12101 et seq. (the
“ADA”) respectively. With regard to both claims,
the parties agree that the applicable statute of limitations
expired on April 17, 2017, ninety days after the Plaintiff
received a Dismissal and Notice of Right to Sue from the
EEOC. Because the Plaintiff's Complaint was not filed
until April 30, 2017, the Defendant has moved pursuant to
Federal Rule of Civil Procedure 12(b)(6) to dismiss the Title
VII and ADA claims as untimely.
limitations defense is not often resolved on a Rule 12(b)(6)
motion because ‘a complaint need not anticipate and
overcome affirmative defenses, such as the statute of
limitations.'” Amin Ijbara Equity Corp. v.
Vill. of Oak Lawn, 860 F.3d 489, 492 (7th Cir. 2017)
(quoting Cancer Found., Inc. v. Cerberus Capital
Mgmt., LP, 559 F.3d 671, 674 (7th Cir. 2009)).
However, “dismissal at this early stage is appropriate
when the complaint alleges facts sufficient to establish that
the suit is indeed tardy.” Id.
case, the Plaintiff concedes-indeed, notes in her
Complaint-that her suit was not filed within the requisite
ninety days. However, she asks the Court to find that her
tardy filing was excused by the fact that her counsel had
quadruple bypass surgery and a lengthy period of
“enforced inactivity during recovery” that
rendered him unable to file on time. The Court assumes for
purposes of this ruling that the reason for the tardy filing
was the incapacity of Plaintiff's counsel due to his
legal terms, the Plaintiff asks the Court to apply the
doctrine of equitable tolling and find her suit timely filed.
Equitable tolling is reserved for rare instances in which a
plaintiff was “prevented in some extraordinary way from
filing his complaint in time.” Threadgill v. Moore
U.S.A., Inc., 269 F.3d 848, 850 (7th Cir. 2001)
(citation and quotation omitted). Generally, the plaintiff
bears the burden to establish that (1) she
“diligently” pursued her claim; and (2)
“some extraordinary circumstances” prevented her
from timely filing her complaint. See Credit Suisse
Securities (USA) LLC v. Simmonds, ___ U.S. ___,
132 S.Ct. 1414, 1419, 182 L.Ed.2d 446 (2012) (citation
omitted) (discussing “long-settled equitable-tolling
principles”); see also Menominee Indian Tribe of
Wisconsin v. United States, ___ U.S. ___, 136
S.Ct. 750, 756, 193 L.Ed.3d 652, 2016 WL 280759, at *4 (2016)
(holding generally that, “the second prong of the
equitable tolling test is met only where the circumstances
that caused a litigant's delay are both extraordinary
and beyond its control”).
Blanche v. United States, 811 F.3d 953, 962 (7th
Cir. 2016) (emphasis in original). Unfortunately for the
Plaintiff, the Seventh Circuit has rejected the idea that the
incapacity of a litigant's attorney can support a finding
of equitable tolling. In Modrowski v. Mote, 322 F.3d
965 (7th Cir. 2003), the Seventh Circuit held that
“attorney incapacity is equivalent to attorney
negligence for equitable tolling purposes” and declined
to “revisit our long-standing determination that
petitioners bear ultimate responsibility for their filings,
even if that means preparing duplicative petitions:
petitioners, ‘whether in prison or not, must vigilantly
oversee the actions of their attorneys and, if necessary,
take matters into their own hands.'” Id.
at 968 (quoting Johnson v. McCaughtry, 265 F.3d 559,
567-68 (7th Cir. 2001)). And while Modrowski and
Johnson both involved habeas petitioners, the
Seventh Circuit has held in other contexts that “[a]
lawyer's ineptitude does not support equitable tolling,
” Lee v. Cook Cty., Ill. 635 F.3d 969, 973
(7th Cir. 2011) (Title VII case) (citing Lawrence v.
Florida, 549 U.S. 327, 336 (2007)); see also Arteaga
v. United States, 711 F.3d 828, 835 (7th Cir. 2013)
(“Equitable tolling cannot be premised on the
incompetence of the plaintiffs lawyer.”). In light of
Modrowski's holding that attorney incapacity and
incompetency are to be treated the same way in the context of
equitable tolling, the Court holds that Plaintiffs
counsel's incapacity cannot support the application of
equitable tolling to save the Plaintiffs tardily filed
claims. Accordingly, the Defendant's motion to dismiss
Counts 1 and 2 of the Complaint is GRANTED.
This case will proceed on Count 3.
 The Defendant also moved to
dismiss Count 4 of the Plaintiff's Complaint. In
response, the Plaintiff has voluntarily dismissed that claim.
The details of the attorney's condition ultimately are
not relevant to the resolution of the instant motion.
However, the Court notes that the attorney has submitted a
declaration documenting those details, to which he attaches a
photograph which he states “accurately depicts my
appearance and physical condition shortly after my
surgery.” Dkt. No. 17-1 at ¶ 17. In fact it does
no such thing, as it is not a photograph of the attorney, but
rather a photograph of a post-surgery patient (or, more
probably, an actor portraying a post-surgery patient) from
the internet. Obviously the attorney was not trying to
mislead the Court or ...