United States District Court, W.D. North Carolina, Charlotte Division
COGBURN JR UNITED STATES DISTRICT JUDGE
MATTER is before the Court on review of a Memorandum
and Recommendation issued in this matter. In the Memorandum
and Recommendation, the magistrate judge advised the parties
of the right to file objections within 14 days, all in
accordance with 28 U.S.C. § 636(b)(1)(c). No. objections
have been filed within the time allowed.
Applicable Standard of Review
Federal Magistrates Act of 1979, as amended,
provides that “a district court shall make a de
novo determination of those portions of the report or
specific proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1);
Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983).
However, “when objections to strictly legal issues are
raised and no factual issues are challenged, de novo
review of the record may be dispensed with.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Similarly, de novo review is not required by the
statute “when a party makes general or conclusory
objections that do not direct the court to a specific error
in the magistrate judge's proposed findings and
recommendations.” Id. Moreover, the statute
does not on its face require any review at all of issues that
are not the subject of an objection. Thomas v. Arn,
474 U.S. 140, 149 (1985); Camby, 718 F.2d at 200.
Nonetheless, a district judge is responsible for the final
determination and outcome of the case, and accordingly the
Court has conducted a careful review of the magistrate
matter, plaintiff received the Right to Sue Notice from the
Equal Employment Opportunity Commission (“EEOC”)
on October 31, 2017. The EEOC advised plaintiff that the
Right to Sue Notice allowed him “to pursue the matter
in court by filing a lawsuit within 90 days of his receipt of
the [Notice].” Plaintiff filed the Complaint on January
31, 2018, which was 92 days after plaintiff received the
Right to Sue Notice.
well-settled that Title VII allows an aggrieved party to file
a civil action 90 days after receipt of a right-to-sue
letter. 42 U.S.C. § 2000e-5(f)(1). A claimant who fails
to file a complaint within the 90-day period generally
forfeits his right to pursue a claim. See Baldwin County
Welcome Ctr. v. Brown, 466 U.S. 147, 149-51 (1984). The
time period is subject to equitable tolling. Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).
The 90-day countdown begins upon the actual date of receipt
when that date is “confirmed by evidence.”
Nguyen v. Inova Alexandria Hosp., 187 F.3d 630, No.
98-2215, 1999 WL 556446, at *3 (4th Cir. July 30, 1999)
(unpublished per curiam); see also Grey v.
Henderson, 169 F.Supp.2d 448, 451 (M.D. N.C. 2001). If
the subsequent civil action is not filed within this 90-day
window, the jurisdiction of the district court is defeated
and the action must be dismissed for lack of subject matter
jurisdiction. Staton v. Newport News Cablevision
(NNCV), 769 F.2d 200, 200-01 (4th Cir.1985).
failure to file suit within 90 days bars the claim. See,
e.g., Harvey v. City of New Bern Police Dept.,
813 F.2d 652, 654 (4th Cir. 1987) (affirming summary judgment
in Title VII lawsuit commenced ninety-one days after
claimant's wife received the right to sue letter);
Scott v. Teachers Annuity Assoc. of America, No.
3:12-CV-00697, 2013 WL 2948315, at *2 (W.D. N.C. June 14,
2013) (dismissing plaintiff's claims based upon her first
charge because she failed to file her claims within ninety
days of receipt of a notice of right to sue); Land v.
Food Lion, LLC, No. 3:12-cv-00006, 2012 WL 1669678, at
*3 (W.D. N.C. May 14, 2012) (dismissing plaintiff's
complaint as untimely where he failed to file his Title VII
claims within the ninety day period); Shelton v. Atlantic
Bingo Supply Co., No. DKC 11-0952, 2011 WL 4985277, at
*2 (D.Md. Oct.17, 2011) (“Despite Plaintiff's pro
se status, the law is clear that the ninety-day filing
requirement must be strictly construed in employment
discrimination cases.”); Rawlings v. City of
Baltimore, No. L-10-2077, 2011 WL 1375603, at *3 (D. Md.
2011) (denying equitable tolling when “it is undisputed
that [the plaintiff] had the full 90 days' notice
prescribed by the law in which to file his
complaint.”). Therefore, this court lacks subject
such careful review, the Court determines that the
recommendation of the magistrate judge is fully consistent
with and supported by current law. Further, the brief factual
background and recitation of issues is supported by the
applicable pleadings. Based on such determinations, the Court
will fully affirm the Memorandum and Recommendation and grant
relief in accordance therewith by dismissing this matter
without prejudice. S. Walk at Broadlands Homeowner's
Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d
175, 185 (4th Cir. 2013) (holding that “[a] dismissal
for lack of standing-or any other defect in subject matter
jurisdiction-must be one without prejudice, because a court
that lacks jurisdiction has no power to adjudicate and
dispose of a claim on the merits.”).
THEREFORE, ORDERED that the Memorandum and Recommendation
(#13) is AFFIRMED, Defendant's Motion to Dismiss (#8) is
GRANTED, and this matter is DISMISSED without prejudice.
 The court notes that plaintiff has not
argued for tolling of the 90-day period based on the age of
W.F., who appears to be a minor. In addressing a related
issue, i.e., whether the time for filing a claim of
discrimination with the EEOC was tolled because the employee
was a minor, a colleague in another circuit held that courts
there “have never recognized infancy as a basis for
equitable tolling in Title VII claims, nor is there any
express statutory provision exempting minors from the statute
of limitations.” Catone v. Brink, 488
F.Supp.2d 214, 217-18 (N.D.N.Y. 2007) (citation omitted). A
similar result has been reached by at least one district
judge in the Fourth Circuit. Ashton ex rel. Ashton v.
Okosun, 266 F.Supp.2d 399, 403 (D.Md.2003) (holding that
“only the legislature can exempt a certain class of
people from the effects of the statute of
limitations.”). Here, while North Carolina law would
exempt a minor from a statute of limitations requirement that
would require the minor to file a state-law claim before the
minor reached majority, N.C. Gen.Stat. § ...