                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          OCT 28 2003
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

 EVA WILLIS,

          Plaintiff - Appellant,
                                                         No. 02-7038
 v.                                                (D.C. No. 01-CV-353-P)
                                                         (E.D. Okla.)
 W. H. BRAUM, INC., f/k/a Braum’s
 Ice Cream Stores, Inc.,

          Defendant - Appellee.



 EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION,

          Plaintiff,
                                                         No. 02-7039
 v.                                                (D.C. No. 01-CV-215-P)
                                                         (E.D. Okla.)
 W. H. BRAUM, INC., d/b/a Braum’s
 Ice Cream and Dairy Store, an
 Oklahoma corporation,

          Defendant - Appellee.


 EVA WILLIS,

          Movant - Appellant.


                             ORDER AND JUDGMENT *


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
Before EBEL, BALDOCK, and KELLY, Circuit Judges.


      Eva Willis sued W.H. Braum, Inc. (“Braum”) in Oklahoma state court

alleging state claims of employment discrimination based on disability and

intentional infliction of emotional distress. Ms. Willis’s claims were

subsequently removed to federal court and consolidated with a suit brought on her

behalf by the Equal Employment Opportunity Commission (“EEOC”) against

Braum for violations of the federal Americans with Disabilities Act (“ADA”).

The district court dismissed Ms. Willis’s claims after determining they were time-

barred under the applicable statute of limitations. The court also denied Ms.

Willis’s motion to intervene in the EEOC’s case. We affirm the dismissal of Ms.

Willis’s state claims and remand for further consideration of Ms. Willis’s motion

to intervene.



                                    Background

      Eva Willis claims she applied for a position at Braum’s store in Madill,

Oklahoma on December 1, 1997, and was told it was not hiring. Aplt. App. at 20.

On December 4, 1997, Ms. Willis alleges she saw a fellow female high school


generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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student interviewed and hired by Braum while she was in the store. Id. Ms.

Willis was born with a cleft palate and cleft lip which has caused a cosmetic

disfigurement and a speech impediment, and she alleges this disability is the basis

for Braum’s actions. Id. at 96. Ms. Willis subsequently contacted the Oklahoma

Human Rights Commission (“OHRC”), id. at 94, and filed a charge of

discrimination with the EEOC on or before August 3, 1998, id. at 56.

      On November 29, 1999, while the EEOC was still reviewing Ms. Willis’s

claim, she filed suit against Braum in federal district court, asserting three claims:

a claim for employment discrimination based on disability under the ADA, a state

employment discrimination claim, and a state intentional infliction of emotional

distress claim. Id. at 19-22. Before Braum filed an answer, on December 27,

1999, Ms. Willis filed a pleading entitled “Dismissal Without Prejudice” with the

court. Id. at 57. The court construed it as a motion for dismissal and filed an

Order on January 5, 2000, dismissing the action without prejudice. Id. at 23.

      On April 16, 2001, the EEOC brought suit against Braum on Ms. Willis’s

behalf alleging violations of the ADA. Id. at 28-32. Ms. Willis again filed suit in

state court on January 2, 2001, re-asserting only her state law claims of

discrimination and intentional infliction of emotional distress. Id. at 24-27.

Braum removed the state case to federal court where it was consolidated with the

EEOC action on July 17, 2001. Id. at 41.


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      On December 31, 2001, the district court dismissed Ms. Willis’s claims as

time-barred under the Oklahoma state statute of limitations. Id. at 116. The court

alternately found Ms. Willis’s state employment discrimination claim barred due

to Ms. Willis’s failure to timely file a charge of discrimination with the OHRC or

the EEOC. Id. at 118 n.1. In the same order, the court concluded that because

Ms. Willis was time-barred from re-asserting her federal ADA claim, the EEOC

was barred from seeking individual relief on her behalf. The court therefore

limited the EEOC to injunctive relief. Id. at 119. In a contemporaneous opinion,

we have reversed those determinations and held neither Ms. Willis nor the EEOC

is time-barred because it is inappropriate to import a state statute of limitations to

apply to federal ADA claims. See EEOC v. W.H. Braum, Inc., ____ F.3d ____

(2003) (No. 02-7046).

      Following dismissal of her state claims, Ms. Willis moved to intervene in

the EEOC’s action as a matter of right on January 24, 2002. Aplt. App. at 144-

51. The court denied intervention, stating in a subsequent order that “[t]his court

denied the motion . . . based on the December 31, 2001 order . . . and Fed. R. Civ.

P. 24(a) as intervention at this late date in the proceedings would cause undue

delay and prejudice.” Id. at 158 n.3.




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                                      Discussion

      Appellant contends that she is not time-barred under the applicable statute

of limitations and that she filed her charge of discrimination with the EEOC and

OHRC in a timely manner. In addition, appellant claims the district court

incorrectly denied her right to intervene in the EEOC’s suit. Whether Ms. Willis

is precluded under the statute of limitations from bringing her claim is a question

of law which we review de novo. United States v. Hurst, 322 F.3d 1256, 1259

(10th Cir. 2003). We review a district court’s rulings on motions to intervene as

of right de novo, Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 90

(10th Cir. 1993), but we review the district court’s determinations regarding

timeliness under an abuse of discretion standard. Coalition of Ariz./N.M.

Counties for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 840 (10th

Cir. 1996).

I. Limitations

      Under Oklahoma state law, the statute of limitations for a state

discrimination claim is “two (2) years after a timely filing of a charge with the

Oklahoma Human Rights Commission.” Okla. Stat. Ann. tit. 25, § 1901(E);

Duncan v. City of Nichols Hills, 913 P.2d 1303, 1310 (Okla. 1996). Likewise, a

two year statute of limitations applies to Ms. Willis’s intentional infliction of

emotional distress claim. Okla. Stat. Ann. tit. 12, § 95(3); Williams v. Lee Way


                                         -5-
Motor Freight, Inc., 688 P.2d 1294, 1297-98 (Okla. 1984). The parties agree that

Ms. Willis’s state claims, filed on November 29, 1999, were timely because they

were filed within the required two year period. However, Ms. Willis dismissed

those claims without prejudice and did not file the present suit until January 2,

2001, after the two year statute of limitations had expired on each of the claims.

      Ms. Willis claims that the Oklahoma savings statute applies in this case to

save her claims. The Oklahoma savings statute provides that:

      If any action is commenced within due time, and . . . the plaintiff fail
      in such action otherwise than upon the merits, the plaintiff . . . may
      commence a new action within one (1) year after the reversal or
      failure although the time limit for commencing the action shall have
      expired before the new action is filed.

Okla. Stat. Ann. tit. 12, § 100. Ms. Willis contends that her claim was dismissed

without prejudice as of January 5, 2000, the date of the court’s order of dismissal,

and therefore she had until January 5, 2001, to refile under the savings statute.

We disagree.

      Ms. Willis filed a voluntary “Dismissal Without Prejudice” 1 on December

27, 1999, under Fed. R. Civ. P. 41(a). Rule 41(a) provides that a plaintiff may

dismiss an action by “filing a notice of dismissal at any time before service by the



      1
       The Dismissal stated in full:
      COMES NOW Eva Willis by and through her attorney, Dan Little,
      and hereby dismisses the above entitled cause without prejudice.
Aplt. App. at 57.

                                         -6-
adverse party of an answer.’” Fed. R. Civ. P. 41(a)(1)(i). When the plaintiff files

a notice under Rule 41(a)(1), it terminates the action automatically and “no order

of the court is needed.” Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507

(10th Cir. 1968). Plaintiff’s Dismissal Without Prejudice was filed prior to the

filing of an answer by Braum, and therefore it is appropriately characterized as a

notice of dismissal by plaintiff under Rule 41(a)(1)(i). Under Oklahoma’s

savings statute, therefore, Ms. Willis had until December 27, 2000, to refile her

claims. Because she did not refile until January 2, 2001, the district court

correctly held that her claims should be dismissed as time-barred under the

applicable statute of limitations.

      Ms. Willis urges this court to apply the savings statute as of the date of the

court’s order (January 5, 2000) rather than the date of her dismissal (December

27,1999). But it is well settled that when a plaintiff files a voluntary dismissal

under Rule 41(a)(1)(i), the dismissal is self-executing and the filing itself

dismisses the matter. See Hyde, 388 F.2d at 507; see also Commercial Space

Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1078 (9th Cir. 1999) (“[I]t is beyond

debate that a dismissal under Rule 41(a)(1) is effective on filing, no court order is

required, the parties are left as though no action had been brought, the defendant

can’t complain, and the district court lacks jurisdiction to do anything about it.”);

Marex Titanic, Inc. v. Wrecked and Abandoned Vessel, 2 F.3d 544, 546 (4th Cir.


                                         -7-
1993) (concluding the dismissal is “self-executing . . . and no judicial approval is

required”); Am. Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963)

(The notice “itself closes the file. There is nothing the defendant can do to fan

the ashes of that action into life and the court has no role to play. This is a matter

of right running to the plaintiff and may not be extinguished or circumscribed by

adversary or court.”). Once Ms. Willis filed her voluntary dismissal her case was

automatically terminated and the court’s order was unnecessary. The action was

dismissed as a matter of law as of December 27, 1999, and not on January 5,

2000, the date of the court’s order.

      Because the claims were dismissed as of December 27, 1999, Ms. Willis

was required under the savings clause to refile by December 27, 2000. Because

she failed to refile her claims until January 2, 2001, her claims are barred by the

statute of limitations. In addition, in light of the plain language of the rule and

the clear precedent interpreting Rule 41(a)(1), we decline to equitably toll the

statute of limitations based on reliance on the court’s erroneous January 5 order.

Because Ms. Willis’s claims were correctly dismissed as time-barred by the

district court, it is unnecessary to determine whether she filed her charge with the

OHRC within the statutorily required time period.

II. Intervention

      Finally, Ms. Willis challenges the denial of her motion to intervene in the


                                          -8-
EEOC’s suit. Under Fed. R. Civ. P. 24(a), “[u]pon timely application anyone

shall be permitted to intervene in an action . . . when a statute of the United States

confers an unconditional right to intervene.” The statutory language of Title VII,

42 U.S.C. § 2000e-5(f)(1), which has been incorporated into the ADA, grants the

charging employee an unconditional right to intervene in cases brought by the

EEOC. EEOC v. Mo. Pac. R.R. Co., 493 F.2d 71, 74 (8th Cir. 1974). However,

Rule 24 does include a limitation on this right–the motion must be timely.

Nevilles v. EEOC, 511 F.2d 303, 305 (8th Cir. 1975).

      The district court denied Ms. Willis’s application for intervention in a

Minute Order on February 19, 2002, “based on the December 31, 2001 order . . .

and Fed. R. Civ. P. 24(a) as intervention at this late date in the proceedings would

cause undue delay and prejudice.” Aplt. App. at 158. In the court’s December

31, 2001 order, in addition to dismissing Ms. Willis’s personal claims, the court

also limited the EEOC to injunctive relief. Based on the court’s order that the

EEOC could no longer pursue individual relief on Ms. Willis’s behalf and the

posture of the case at that time, it was not an abuse of discretion to deny

intervention. However, this court has reversed the district court’s December 31,

2001 order and held the EEOC is not barred from asserting individual relief on

Ms. Willis’s behalf. See EEOC v. W.H. Braum, Inc., ____ F.3d ____ (2003) (No.

02-7046). Based on these changed circumstances and the strong precedent in


                                          -9-
favor of intervention, see Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S.

318, 331 (1980) (the individual aggrieved party is given the right to intervene to

protect their personal interests, which may at times be in conflict with those of the

EEOC); Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001)

(“This circuit takes a somewhat liberal line in allowing intervention.”) (citations

omitted)); Winbush v. State of Iowa By Glenwood State Hosp., 66 F.3d 1471,

1478-79 (8th Cir. 1995) (permitting intervention ten years after complaint was

filed and after conclusion of the bench trial); Nat’l Farm Lines v. I.C.C., 564 F.2d

381, 383-84 (10th Cir. 1977), we reverse and remand on the issue of intervention.

Upon remand, the district court should determine whether the motion to intervene

should be denied solely under Fed. R. Civ. P. 24(a) on the basis that the

intervention would have caused undue delay and prejudice.

      We AFFIRM the dismissal of plaintiff’s state law claims, REVERSE the

denial of intervention, and REMAND for further proceedings consistent with this

opinion.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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