Mark F. Elmore v. William J. Henderson, Postmaster General

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3783
Mark F. Elmore,
Plaintiff-Appellant,
v.
William J. Henderson, Postmaster General,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP-98-1664-C-B/S--Sarah Evans Barker, Chief Judge.
Argued August 9, 2000--Decided September 14, 2000
Before Posner, Ripple, and Williams, Circuit Judges.
Posner, Circuit Judge. This appeal from the
dismissal of the plaintiff’s suit because the
statute of limitations had run presents a tangle
of important statute-of-limitations issues. The
plaintiff filed a suit along with two other
persons against the Postal Service charging
violations of Title VII and the Rehabilitation
Act. The suit was filed on February 23, 1998,
which, so far as Elmore was concerned, was the
84th day of the 90-day period within which the
suit had to be filed after the final decision by
the Postal Service turning down his
administrative complaint. 29 C.F.R. sec.
1614.407. The judge dismissed Elmore and one of
the other two plaintiffs, without prejudice, on
the ground of misjoinder because the three
plaintiffs’ claims did not arise out of the same
event or series of events. Fed. R. Civ. P. 20(a),
21; Intercon Research Associates, Ltd. v. Dresser
Industries, Inc., 696 F.2d 53, 57 (7th Cir.
1982); Alexander v. Fulton County, 207 F.3d 1303,
1323-24 (11th Cir. 2000); Abdullah v. Acands,
Inc., 30 F.3d 264, 268 n. 5 (1st Cir. 1994). That
was on August 5, 1998. After the remaining
plaintiff settled with the defendant, the judge
dismissed the entire suit with prejudice. That
was on October 22, 1999; earlier, on December 4,
1998, Elmore had refiled his claim as a separate
suit. The district judge dismissed the refiled
suit with prejudice because it had not been filed

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within the six days remaining of the original
limitations period when Elmore was dismissed from
the suit or even within 90 days following that
dismissal. Elmore argues that because the
original suit was timely, his second suit should
have been treated simply as a continuation of the
original suit, especially since, he further
argues, the judge erred in dismissing him from
the original suit. Alternatively, he argues that
the running of the statute of limitations on the
second suit should be equitably tolled.
The filing of a suit stops the running of the
statute of limitations, though only contingently.
It is true that if the suit is later dismissed
with prejudice, any issue concerning the bar of
the statute of limitations to the refiling of the
suit will be moot because a suit that has been
dismissed with prejudice cannot be refiled; the
refiling is blocked by the doctrine of res
judicata. But if the suit is dismissed without
prejudice, meaning that it can be refiled, then
the tolling effect of the filing of the suit is
wiped out and the statute of limitations is
deemed to have continued running from whenever
the cause of action accrued, without interruption
by that filing. E.g., Conover v. Lien, 87 F.3d
905, 908-09 (7th Cir. 1996); Beck v. Caterpillar
Inc., 50 F.3d 405, 407 (7th Cir. 1995); Powell v.
Starwalt, 866 F.2d 964, 966 (7th Cir. 1989);
Chico-Velez v. Roche Products, Inc., 139 F.3d 56,
59 (1st Cir. 1998); Johnson v. Nyack Hospital, 86
F.3d 8, 11 (2d Cir. 1996); Garfield v. J.C.
Nichols Real Estate, 57 F.3d 662, 666 (8th Cir.
1995).
In other words, a suit dismissed without
prejudice is treated for statute of limitations
purposes as if it had never been filed. E.g.,
Beck v. Caterpillar Inc., supra, 50 F.3d at 407;
Lambert v. United States, 44 F.3d 296, 298 (5th
Cir. 1995); Dade County v. Rohr Industries, Inc.,
826 F.2d 983, 989 (11th Cir. 1987). Were this not
the rule, statutes of limitations would be easily
nullified. The plaintiff could file a suit,
dismiss it voluntarily the next day, and have
forever to refile it. The strongest case for the
rule that the running of the statute of
limitations is unaffected by a dismissal without
prejudice is therefore the case in which the
plaintiff procured the dismissal, as by
voluntarily dismissing the suit. See, e.g.,
Willard v. Wood, 164 U.S. 502, 523 (1896); Beck
v. Caterpillar Inc., supra, 50 F.3d at 407;
Bonneville Associates, Limited Partnership v.
Barram, 165 F.3d 1360, 1364 (Fed. Cir. 1999). But
that cannot place limits on the scope of the
rule, since a plaintiff can almost always
precipitate a dismissal without prejudice, for
example by failing to serve the defendant

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properly or by failing to allege federal
jurisdiction, even if he does not move to dismiss
it. The rule is therefore as we stated it: when a
suit is dismissed without prejudice, the statute
of limitations is deemed unaffected by the filing
of the suit, so that if the statute of
limitations has run the dismissal is effectively
with prejudice. E.g., Duffy v. Ford Motor Co.,
218 F.3d 623, 629 (6th Cir. 2000); Hatchett v.
Nettles, 201 F.3d 651, 652-53 (5th Cir. 2000)
(per curiam). The severity of the rule is
mitigated, however, by the doctrine of equitable
tolling, as we’ll see.
When there are several plaintiffs in a single
suit and one is dismissed out, whether under Rule
21 or any other rule or doctrine, it is as if he
had brought a separate suit that was dismissed.
We cannot find a case on the point; but it seems
to us clear as a matter of first principles. The
purpose of Rule 20(a) in permitting joinder in a
single suit of persons who have separate claims,
albeit growing out of a single incident,
transaction, or series of events, is to enable
economies in litigation, not to merge the
plaintiffs’ rights so that the defendant loses
defenses that he might have had against one of
the plaintiffs. It is true that the statute of
limitations is tolled for class members until it
is determined that the case cannot proceed as a
class action, Crown, Cork & Seal Co. v. Parker,
462 U.S. 345, 352-53 (1983); American Pipe &
Construction Co. v. Utah, 414 U.S. 538, 551-52
(1974); Hemenway v. Peabody Coal Co., 159 F.3d
255, 265-66 (7th Cir. 1998), but that is because
a class action is not a mere "invitation to
joinder." American Pipe & Construction Co. v.
Utah, supra, 414 U.S. at 550. It is a device
centrally concerned with the economies of
aggregating small claims, and it would thus be
seriously impaired by a rule that required all
the class members to file separate, protective
suits, against the eventuality that the statute
of limitations would run during the period when
the class status of the putative class action
remained undetermined. We want the class members
to rely on the filing of the class action rather
than to clutter the courts with a multitude of
separate suits.
There is in any event little risk that a
determination that claims have been misjoined
will lead to a dismissal with statute of
limitations consequences, since, as we’re about
to see, the district court is duty-bound to
prevent those consequences by severing rather
than dismissing claims. If it fails in that duty,
the remedy is appeal.
Hence the dismissal of Elmore from the suit on

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August 5, 1998, occurred long after the 90-day
period within which he had to sue had elapsed,
and was time barred before that date, not six,
let alone 96, days later. Cf. Wilson v. Grumman
Ohio Corp., 815 F.2d 26, 27-28 (6th Cir. 1987)
(per curiam). The judge erred in thinking that
the statute of limitations was tolled between the
filing of the original suit and when she
dismissed Elmore from it.
It is irrelevant that the dismissal was almost
certainly erroneous, not because there wasn’t
misjoinder, but because in formulating a remedy
for a misjoinder the judge is required to avoid
gratuitous harm to the parties, including the
misjoined party. Rule 21 not only requires that
orders adding or dropping parties be made "on
such terms as are just," but also expressly
allows the judge to sever the misjoined party’s
claim rather than dismiss it. Sabolsky v.
Budzanoski, 457 F.2d 1245, 1249 (3d Cir. 1972).
The judge could and should have allowed Elmore’s
claim against the Postal Service to continue as a
separate suit so that it would not be time-
barred. Rice v. Sunrise Express, 209 F.3d 1008,
1014 n. 8 (7th Cir. 2000); White v. ABCO
Engineering Corp., 199 F.3d 140, 145 n. 6 (3d
Cir. 1999). As an offshoot of the original suit,
Elmore’s separate, severed suit, though separate
from the original suit for other purposes, would
not have affected the tolling of the statute of
limitations by the original suit. That is, it
would have been a continuation of the original
suit so far as he was concerned. This would be
obvious if the judge had dismissed the other two
plaintiffs from the suit, leaving Elmore as the
sole plaintiff, rather than dismissing Elmore and
one of the two other plaintiffs; and we do not
think the running of the statute of limitations
should be affected by which joined plaintiffs are
dismissed.
But waiving the statute of limitations is not
the proper remedy for an erroneous dismissal. The
proper remedy is appeal. Although the suit
continued in the district court on behalf of the
remaining plaintiff, and so the dismissal of
Elmore was not a final judgment in the usual
sense, Rule 54(b) allows the district judge to
enter a final, immediately appealable judgment
from an order that dismisses one of the parties.
See House v. Belford, 956 F.2d 711, 716 (7th Cir.
1992); In re Southeast Banking Corp., 69 F.3d
1539, 1547 (11th Cir. 1995); Haynesworth v.
Miller, 820 F.2d 1245, 1252-53 (D.C. Cir. 1987).
Elmore did not ask for such a judgment.
So the statute of limitations ran long before
Elmore refiled his suit. That in itself need not
have been fatal. There are defenses to the

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statute of limitations, and Elmore is right in
identifying equitable tolling as one of them. The
running of a statute of limitations can be
equitably tolled when through no fault of his own
the plaintiff was unable to sue within the
limitations period but he sued as soon as he
could. E.g., Flight Attendants Against UAL Offset
v. Commissioner, 165 F.3d 572, 575-76 (7th Cir.
1999); Donald v. Cook County Sheriff’s Dept., 95
F.3d 548, 561-62 (7th Cir. 1996); Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 451 (7th Cir.
1990); Graham-Humphreys v. Memphis Brooks Museum
of Art, Inc., 209 F.3d 552, 560-61 (6th Cir.
2000). This, however, is not a case in which the
plaintiff was prevented from suing within the
limitations period. He did sue within that
period. His complaint is that his suit was
erroneously dismissed, as a result of which,
though the dismissal was without prejudice, his
claim was lost because the statute of limitations
ran before he refiled. Equitable tolling is not a
remedy for an erroneous judgment; appeal, or in
exceptional cases a motion under Fed. R. Civ. P.
60, is.
For completeness we note that, even if equitable
tolling could do service here for an appeal, as
assumed (rather than discussed) in Justice v.
United States, 6 F.3d 1474, 1480-82 (11th Cir.
1993), the doctrine would be unavailable to
Elmore in the circumstances of this case. It is
true that he cannot be faulted for having failed
to refile his suit before the district court
dismissed him from the original one. He had no
reason to anticipate an erroneous order
dismissing him for misjoinder rather than just
severing his claim and allowing it to continue as
a separate suit. But he could not possibly invoke
the doctrine of equitable tolling unless he sued
just as soon as possible after the judge’s action
made him realize that the statute of limitations
had run. He waited four months to sue and has
offered no excuse for the delay. Since all he had
to do was refile the original complaint, merely
deleting reference to his coplaintiff’s claims,
it is not surprising that he is unable to come up
with an excuse.
We have emphasized in previous cases the social
importance of limitations periods for suing.
E.g., Cook v. City of Chicago, 192 F.3d 693, 696
(7th Cir. 1999); Galloway v. General Motors
Service Parts Operations, 78 F.3d 1164, 1165-66
(7th Cir. 1996); see also Delaware State College
v. Ricks, 449 U.S. 250, 259-60 (1980); Dring v.
McDonnell Douglas Corp., 58 F.3d 1323, 1330 (8th
Cir. 1995). Such deadlines minimize legal
uncertainty both about the outcome of eventual
litigation and about the existence and scope of
the potential defendant’s liability. Burnett v.

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New York Central R.R., 380 U.S. 424, 428 (1965);
Bailey v. International Brotherhood of
Boilermakers, Etc., Local 374, 175 F.3d 526, 531
(7th Cir. 1999); Servicios-Expoarma, C.A. v.
Industrial Maritime Carriers, Inc., 135 F.3d 984,
989 (5th Cir. 1998); Sperling v. Hoffmann-La
Roche, Inc., 24 F.3d 463, 471-72 (3d Cir. 1994).
The importance of the limitations period in the
present case is underscored by the brevity of
that period. By fixing 90 days as the deadline
for suing after final agency action, the Postal
Service has emphasized the urgency of prompt
resolution of employment claims against it. The
practical reason for that sense of urgency in an
employment case is that an employer’s liability
tends to mount up with each day that judgment is
deferred, since back pay (in a dismissal case)
accumulates from the dismissal of the plaintiff
to his reinstatement following the entry of a
judgment for him. Cook v. City of Chicago, supra,
192 F.3d at 696; Cada v. Baxter Healthcare Corp.,
supra, 920 F.2d at 452-53.
Affirmed.

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