United States District Court, M.D. Georgia, Macon Division
ORDER ON PLAINTIFF'S MOTIONS FOR
E. SELF, III, JUDGE
the Court are Plaintiff Tammy Nesbitt's two Motions for
Reconsideration [Docs. 6 & 8] in which she asks the Court
to reconsider its previous order dismissing her claims as
frivolous. See [Doc. 4]. After reviewing
Plaintiff's submissions, the Court finds- for the reasons
explained below-that it would grant her Motions for
Reconsideration if it had not been divested of its
jurisdiction by Plaintiff's Notice of Appeal [Doc. 7].
Accordingly, this Order is the Court's
“indicat[ion] that it would grant the motion[s]”
for reconsideration if the Eleventh Circuit remanded the case
thus restoring the Court's jurisdiction to grant these
motions. See Mahone v. Ray, 326 F.3d 1176, 1180
(11th Cir. 2003). If Plaintiff wishes the Court to rule on
these motions, she “should . . . make a motion in [the
Court of Appeals] for a remand of the case so that [this
Court] can grant relief.” Id.
filed this case (“Nesbitt I”) on January
8, 2019, with a Complaint containing allegations of
wrongdoing by certain employees of the Georgia Department of
Corrections. See [Doc. 1]. Along with her
Complaint, Plaintiff filed an Equal Employment Opportunity
Commission (“EEOC”) right to sue letter [Doc.
1-2]-which is required for this type of claim-and a motion
for leave to proceed in forma pauperis. [Doc. 2].
The Court granted Plaintiff's Motion for Leave to Proceed
in Forma Pauperis but dismissed her case on January
11, 2019, as frivolous under 28 U.S.C. § 1915(e). [Doc.
4, at p. 3]. Following the Court's dismissal, Plaintiff
filed a second action asserting the exact same claims without
correcting the issue the Court identified in her first case.
Nesbitt v. Dozier, 5:19-cv-00023-TES
(“Nesbitt II”) [Doc. 1]. Plaintiff also
filed a motion for leave to proceed in forma
pauperis in her second case. [Nesbitt II, Doc.
2]. In light of the fact that Plaintiff had not corrected the
deficiency from her prior case, the Court again granted her
Motion for Leave to Proceed in Forma Pauperis but
dismissed her Complaint as frivolous in an order materially
identical to the order of dismissal the Court issued in
Nesbitt I. See [Nesbitt II, Doc.
4]. On the same day the Court dismissed Nesbitt II,
Plaintiff filed a Motion for Reconsideration in Nesbitt
I effectively asking the Court to allow her to amend her
Complaint. [Doc. 6]. However, before the Court was able to
rule on her Motion for Reconsideration, Plaintiff filed
notices of appeal in Nesbitt I & II.
See [Doc. 7; Nesbitt II, Doc. 6].
same day Plaintiff filed her Notices of Appeal, she also
filed a second motion for reconsideration in Nesbitt
I and a third case asserting the same claims as in
Nesbitt I & II. [Doc. 8]; Nesbitt v. Ga.
Dep't of Corr., 5:19-cv-00045-TES
(“Nesbitt III”). However, unlike in her
prior cases, Plaintiff appropriately identified her former
employer-rather than a fellow employee-as the defendant in
Nesbitt III. In other words, Plaintiff corrected the
deficiency that resulted in the Court's dismissal of
Nesbitt I & II.
Plaintiff's arguments in her Motions for Reconsideration
are not entirely clear, the Court construes these motions as
raising two objections to the Court's order of dismissal.
First, Plaintiff asks the Court to “reverse the
decision to grant summary judgement [sic] to Defendant James
E. Donald” because Plaintiff “did not list his
name in [her] Complaint.” [Doc. 6, at p. 1]. Second,
Plaintiff asks the Court to allow her to amend her Complaint
to resolve the defect identified in the Court's order of
dismissal. [Id.] (“Corrections have been
amended in my complaint if permission is required I take this
oppunity [sic] to ask the court to allow me to amend my
complaint.”). The Court construes this argument as both
a Motion for Reconsideration and a Motion to Amend to add the
Georgia Department of Corrections as a defendant.
Court begins with Plaintiff's argument concerning the
Court's reference to a James E. Donald in its order of
dismissal and finds that it is without merit. The only
reference to a James E. Donald in the Court's order of
dismissal was in a quote drawn from another case in which
there was a defendant named James E. Donald. See
[Doc. 4, at p. 3] (quoting Hooks v. Ga. Dep't of
Corr., 5:06-cv-002 (CAR), 2008 WL 11442010, at *3 (M.D.
Ga. Mar. 17, 2008)). To be clear, the Court was very much
aware of the fact that Plaintiff did not intend to include a
James E. Donald as a defendant in this case at the time it
issued its order of dismissal. Because the Court was not
mistaken as to the defendants in Plaintiff's Complaint,
the Court finds that this argument is not a valid basis for
reconsidering its prior decision.
the Court is persuaded that Plaintiff should be afforded an
opportunity to amend her Complaint. “An employee must
file a Title VII complaint within 90 days of exhausting his
administrative remedies and after receipt of a
‘right-to-sue' letter from the EEOC.”
Wakefield v. Cordis Corp., 211 Fed.Appx. 834, 838
(11th Cir. 2006) (citing 42 U.S.C. § 2000e-5(f)(1)). The
expiration of this 90-day period is tantamount to the running
of a statute of limitations. See Stallworth v. Wells
Fargo Armored Servs. Corp., 936 F.2d 522, 524 (11th Cir.
1991) (referring to 90-day limitations period as a statute of
limitations). In this case, Plaintiff noted on her EEOC right
to sue letter that she received it on October 15, 2018;
therefore, the limitations period for filing this action
expired on January 13, 2019. See [Doc. 1-2].
Plaintiff filed Nesbitt I on January 8, 2019, in
compliance with the 90-day limitations period. See
[Doc. 1]. However, the Court issued its order of dismissal on
January 11, 2019, and the clerk mailed that order on January
14, 2019-after the limitations expired.
the Court's previous order was, in effect, a dismissal
with prejudice because any subsequently filed Complaint would
almost certainly be dismissed for failure to comply with the
90-day limitations period. See Ciralsky v. Central
Intelligence Agency, 355 F.3d 661, 671 (D.C. Cir. 2004)
(acknowledging that dismissal after expiration of statute of
limitations functions as a dismissal with prejudice). As the
Eleventh Circuit noted in Hines v. Thomas,
“[d]ismissals with prejudice are drastic
remedies” that “are not appropriate unless the
district court finds both that there is a clear record of
delay or willful misconduct and that lesser sanctions are
inadequate.” 604 Fed.Appx. 796, 800 (11th Cir. 2015).
The Court finds that there is no clear record of delay or
willful misconduct in this case. Thus, to avoid the
prejudicial effect of its prior order, the Court would grant
Plaintiff's Motion for Reconsideration and allow her to
amend her Complaint to add the Georgia Department of
Corrections as a defendant in this case.
as noted above, the Court lacks jurisdiction to enter such an
order at this time. “As a general matter, the filing of
a notice of appeal deprives the district court of
jurisdiction over all issues involved in the appeal.”
Mahone, 326 F.3d at 1179. This rule is subject to an
exception for district courts considering and denying motions
under Federal Rule of Civil Procedure 60(b). Id. But
the Mahone court made clear that this exception
applies only to the denial of Rule 60(b) motions and
does not permit the Court to grant a Rule 60(b)
motion once a party files a notice of appeal. Id.
(“However, following the filing of a notice of appeal
district courts do not possess jurisdiction to grant a Rule
60(b) motion.”); see also Munoz v. United
States, 451 Fed.Appx. 818, 820 (11th Cir. 2011).
Instead, when a district court is confronted with a Rule
60(b) motion that it would grant but for a pending appeal, it
should “indicate its belief that the arguments raised
are meritorious” and “the movant may then
petition the court of appeals to remand the matter so as to
confer jurisdiction on the district court to grant the
motion.” Id. (citing Bovee v. Coopers
& Lybrand, C.P.A., 272 F.3d 356, 359 n.1 (6th Cir.
2001)). If Plaintiff elects to submit a motion to the
Eleventh Circuit to remand her case, she “must promptly
notify the circuit clerk under [Federal Rule of Appellate
Procedure] 12.1, to petition for a remand to the district
court.” Munoz, 451 Fed.Appx. at 820.
explained above, the Court has reviewed Plaintiff's
Motions for Reconsideration and finds that they are
meritorious with regard to the issue of amendment. However,
the Court lacks jurisdiction to grant these motions until
Plaintiff petitions the Eleventh Circuit to remand her case
pursuant to Federal Rule of Appellate Procedure 12.1. If
Plaintiff petitions the Eleventh Circuit and it remands the
case, the Court will grant Plaintiff's Motions for
Reconsideration and allow her to amend her Complaint to add
her former employer-Georgia Department of Corrections-as a
defendant in this action.