HOUSTON v. MARK DUNNING INDUSTRIES INC

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
FARHEEM HOUSTON,
Plaintiff,
v. Case No. 3:25-cv-1338-TKW-HTC
MARK DUNNING INDUSTRIES, INC.
Defendant.
/
ORDER
This case is before the Court based on the magistrate judge’s Report and
Recommendation (Doc. 15) and Plaintiff’s objection (Doc. 16). No response to the
objection is needed.
The Court reviewed the issues raised in the objection de novo under 28 U.S.C.
§636(b)(1) and Fed. R. Civ. P. 72(b)(3), and based on that review, the Court agrees
with the magistrate judge’s determination that the Plaintiff’s Title VII claims should
be dismissed with prejudice because they are time barred and the untimeliness is not
excused under the doctrine of equitable tolling;1 the wrongful termination claim
1 The Court did not overlook Plaintiff’s argument that the dismissal of the Title VII claims
should be without prejudice so he can specifically plead the date that he received the right-to-sue
letter. However, as the magistrate judge noted, see Doc. 15 at 6 n.5, even if the 90-day period
started on May 8 rather than May 5, the complaint was still not timely filed. And, irrespective of
whether the 90-day period ended on August 4 or August 6, the doctrine of equitable tolling would
not save the untimely filing because, putting aside the fact that Plaintiff waited nearly a week to
hand-file the complaint after he was unable to file it electronically, it is clear from the facts asserted
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should be dismissed with prejudice because Plaintiff is an at-will employee; and that
the other claims should be dismissed without prejudice for failure to state a claim on
which relief can be granted. That said, Plaintiff has not previously amended the
complaint and the Court cannot say at this point that amendment would be futile, so
Plaintiff will be given a chance to file an amended complaint curing the pleading
deficiencies in the claims that were dismissed without prejudice—if he can do so in
good faith.
Accordingly, it is ORDERED that:
1. The magistrate judge’s Report and Recommendation is adopted and
incorporated by reference in this Order.
2. Defendant’s motion to dismiss (Doc. 10) is GRANTED insofar as:
a. the Title VII claim and the wrongful termination claim in the
complaint are DISMISSED with prejudice; and
b. the other claims in the complaint are DISMISSED without
prejudice and with leave to amend.
3. Plaintiff has 14 days from the date of this Order to file an amended
complaint curing the pleading deficiencies in the claims that were dismissed without
prejudice.
in Plaintiff’s objection that the untimely filing of the complaint was the result of Plaintiff waiting
until what he believed was the last day to file suit rather than some extraordinary circumstance
beyond his control that precluded him from meeting the deadline with due diligence.
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4. If Plaintiff files an amended complaint, the Clerk shall refer the case
back to the magistrate judge for further pretrial proceedings.
5. If Plaintiff does not file an amended complaint, the Clerk shall close the
case file.
DONE AND ORDERED this 8th day of December, 2025.
__________________________________
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE
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