Quinn v. Publix Supermarket

119 F. App'x 517

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 14, 2005
• Docket: 04-2215
• Status: Unpublished

Opinion

PER CURIAM:

Jacqueline Quinn appeals the district court’s order denying relief on her 42 U.S.C. §§ 2000e to 2000e-17 (2000) (“Title VII”) complaint. On August 26, 2004, the district court dismissed Quinn’s complaint on jurisdictional grounds. The court, adopting the reasoning set forth in Defendants’s motion to dismiss, determined that it did not have jurisdiction to hear the case pursuant to 42 U.S.C. § 2000e-5(f)(3), Title VTI’s venue-laying provision. When a plaintiff files an action in the wrong venue, however, 28 U.S.C. § 1406(a) (2000) directs courts to “dismiss, or if it be in the interest of justice, transfer such case” to the proper venue. Because the record does not reflect such a determination, * we remand this case for a determination of whether a transfer to an appropriate jurisdiction would be in the interest of justice.

Accordingly, we vacate the order of the district court and remand the case for further consideration in light of this opinion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED

* We note that Quinn would now be time-barred from initiating a new action. A Title VII action must be brought within 90 days of receipt of a right-to-sue letter issued by the Equal Employment Opportunity Commission. See § 2000e-5(f)(1). In instances where a complaint is timely filed and later dismissed, the timely filing of the complaint does not "toll” or suspend the ninety-day limitations period. See Minnette v. Time Warner, 997 F.2d 1023, 1026-27 (2d Cir.1993) (citing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.1992); Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th Cir.1991) (holding that limitations period was not tolled during pendency of dismissed action)). Thus, even construing the district court’s order as a dismissal without prejudice will not benefit Quinn.