Reed v. PF of Milwaukee Midtown, LLC

Dist. Ct. did not err in dismissing as untimely plaintiff’s ADEA action, alleging that defendant failed to hire him on account of his age, under circumstances where: (1) clerk of court returned plaintiff’s timely-tendered complaint, because Dist. Ct. had issued to plaintiff in 2012 litigation bar based on plaintiff’s history of frivolous lawsuits; (2) litigation bar required plaintiff to pay $5,000 sanction, prevented plaintiff from filing further lawsuits until sanction had been paid, but allowed plaintiff to file motion to lift bar after two years; (3) on 46th day of applicable 90-day EEOC period to file instant lawsuit, defendant asked Dist. Ct. to vacate bar based on frivolous claim that Dist. Ct. Judge who had issued litigation bar was biased; (4) Dist. Ct. denied motion to vacate, but plaintiff did not receive order until 30 days later and nine days after expiration of applicable 90-day period; and (5) two days later, plaintiff filed affidavit of indigence, and Dist. Ct. vacated litigation bar, but then denied plaintiff’s request for equitable tolling and dismissed plaintiff’s lawsuit as untimely. Dist. Ct. could properly find that equitable tolling did not apply, because plaintiff was not diligent in seeking to vacate litigation bar. Fact that clerk’s use of outdated address for plaintiff did not require different result, where plaintiff had otherwise frittered away 90-day period by initially ignoring litigation bar and initially seeking vacatur through frivolous argument of judicial bias. As such, plaintiff had responsibility to act diligently throughout limitations period to avoid risk of clerical error. Ct. further held that plaintiff’s history of filing frivolous actions justified order that he prepay all fees to file new lawsuits in Dist. Ct. and new appeals in Ct. of Appeals.