                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 25 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    JOHN HALL,

                Plaintiff-Appellant,

    v.                                                    No. 03-7077
                                                    (D.C. No. 03-CV-130-S)
    UNITED PARCEL SERVICE, INC.,                          (E.D. Okla.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
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.
       Plaintiff, John Hall, appeals from an order of the district court granting

defendant’s motion to dismiss this action brought pursuant to the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. We affirm.

       Mr. Hall was terminated from his employment with defendant in 1999. He

filed a charge of discrimination with the Oklahoma Human Rights Commission

and, subsequently, received his right-to-sue letter March 23, 2001. On June 18,

2001, he filed a timely suit in district court with the aid of counsel.

Approximately six months later, Mr. Hall, again acting through counsel, filed a

motion to dismiss his case without prejudice. The motion was granted and the

case was dismissed on January 23, 2002. Almost one year later, Mr. Hall, acting

pro se, 1 filed this suit in district court.

       Defendant filed a motion to dismiss for failure to state a claim under

Fed. R. Civ. P. 12(b)(6). Defendant asserted that Mr. Hall’s claim was “doubly

time-barred” because he had not timely filed his charge with the Oklahoma

Human Rights Commission and because he had not timely filed this suit.      2
                                                                                Aplt.

App. at 7. The district court made no finding regarding the timeliness of the

filing of the EEOC charge, but concluded the lawsuit was untimely filed. In


1
      Since commencing this action, Mr. Hall obtained counsel who represented
him after he filed the complaint and continues to do so on appeal.
2
      Defendant also sought attorney’s fees. The district court denied that part of
the motion. Defendant does not appeal that determination.

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reaching that conclusion, the district court rejected Mr. Hall's contention that the

statute of limitations was tolled following the dismissal of his initial suit.

       On appeal, Mr. Hall argues that the s       tatute of limitations should be tolled

considering the societal reasons underlying the passage of the ADA and related

civil rights legislation. He also contends that he was not sleeping on his rights

and that attorney misconduct justifies equitable tolling.

       “We review de novo the district court’s dismissal under

Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be

granted.” Ruiz v. McDonnell , 299 F.3d 1173, 1181 (10th Cir. 2002),           cert. denied ,

538 U.S. 999 (2003). We review “the district court’s decision not to apply

equitable tolling for an abuse of discretion.”       Harms v. IRS , 321 F.3d 1001, 1006

(10th Cir.), cert. denied , 124 S. Ct. 159 (2003).

       A plaintiff must initiate litigation on an ADA claim within ninety days from

the date he receives a “right to sue” letter from the EEOC.        See 42 U.S.C.

§ 2000e-5(f)(1) (providing filing deadlines for Title VII claims); 42 U.S.C.

§ 12117(a) (specifically adopting Title VII filing deadlines for ADA claims).

“These timing requirements are prerequisites to a civil suit.”        Croy v. Cobe Labs.,

Inc. , 345 F.3d 1199, 1202 (10th Cir. 2003). Mr. Hall agrees that he did not

comply with these requirements. However, he contends that these requirements

should be tolled in his case because his counsel gave him erroneous advice when


                                             -3-
counsel told him he could timely refile his action within one year of the date his

first case was dismissed.

       Generally, “a voluntary dismissal without prejudice leaves the parties as

though the action had never been brought.”           Brown v. Hartshorne Pub. Sch. Dist.

No. 1 , 926 F.2d 959, 961 (10th Cir. 1991). However, in the absence of a statute

to the contrary, the statute of limitations is not tolled during the pendency of the

dismissed action.    Id. “The requirement that a plaintiff file a timely civil action

after the disposition of an individual EEO complaint is not a jurisdictional

requirement, but rather is subject to . . . equitable tolling.”    Harms , 321 F.3d at

1006. The time limit for filing a complaint after receipt of an EEO right-to-sue

notice “will be tolled only upon a showing of active deception where, for

example, the plaintiff has been actively misled or lulled into inaction      by her past

employer, state or federal agencies, or the courts        .” Simons v. Southwest

Petro-Chem, Inc. , 28 F.3d 1029, 1031 (10th Cir. 1994) (emphasis added)

(quotations omitted). “[T]he propriety of equitable tolling must necessarily be

determined on a case-by-case basis.”        Johnson v. United States Postal Serv.   , 861

F.2d 1475, 1481 (10th Cir. 1988) (quotation omitted).

       Mr. Hall alleges that he failed to file his second ADA action promptly

because he was actively misled by his counsel. We note, however, that Mr. Hall

received a right-to-sue letter from the EEOC. This letter contained, in bold print,


                                               -4-
the warning that he had to file any lawsuit within ninety days of the receipt of the

letter, Aplee. Supp. App. at 102, thus alerting him that timeliness was critical to

preserving his claim. Moreover, it was Mr. Hall’s own attorney who gave him

incorrect information, not his employer, an agency, or the court. “Mere attorney

negligence does not justify equitable tolling.”    Steed v. Head , 219 F.3d 1298,

1300 (11th Cir. 2000); see also Irwin v. Dep’t of Veterans Affairs   , 498 U.S. 89,

96 (1990) (principles of equitable tolling do not extend to “a garden variety claim

of excusable neglect”). The district court did not abuse its discretion in

determining that the principles of equitable tolling did not apply here.

       The judgment of the district court is AFFIRMED.


                                                       Entered for the Court



                                                       Mary Beck Briscoe
                                                       Circuit Judge




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