                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-1723


PAULA C. ANGLES; DEBORAH COLLINS; ELIZABETH A. GARRICK; EDNA
A. BOLTON; SONYA LYNN ANGELL; CANDY S. DICKINSON; SHIRLEY K.
FRELIX; PAULA HENRY; SANDRA MANNON; KATHLEEN SHALLOW;
KIMBERLY VELLER; JUANEMA OGLE; LILLIAN LEWIS; TABITHA A.
KNIGHT; MARY PFEUFER; CARMEN GARCIA; APRIL WEBSTER; DAPHNE
M. ROBINSON; DESIREE LIGHTFOOT; CHASSIDY HAMILTON; FRIEDA
SCOTT-BUTTS; ARACELI REYES; BRENDA WILLIAMS; MARIA D.
GONZALEZ; CARLOTA RZUCEK; DARLENE R. MARTIN; CAROLYN SABO;
SHERRY L. ALLISON; REBECCA TYLER-MILLS; MICHELE L. WAHL;
MELINDA J. ANDERSON, on behalf of themselves and others
similarly situated,

                Plaintiffs – Appellants,

           v.

DOLLAR TREE STORES, INCORPORATED,

                Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Jerome B. Friedman, Senior
District Judge. (2:09-cv-00486-JBF-FBS)


Argued:   January 24, 2012           Decided:   September 13, 2012


Before SHEDD, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Diaz joined.      Judge Davis wrote a
dissenting opinion.
ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN &
PANTAZIS, PC, Birmingham, Alabama, for Appellants.      Kenneth
Martin Willner, PAUL HASTINGS LLP, Washington, D.C., for
Appellee. ON BRIEF: Gregory O. Wiggins, WIGGINS, CHILDS, QUINN
& PANTAZIS, PC, Birmingham, Alabama, for Appellants. Barbara B.
Brown, Carson H. Sullivan, PAUL HASTINGS LLP, Washington, D.C.;
Beth Hirsch Berman, WILLIAMS MULLEN, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                               2
SHEDD, Circuit Judge:

     Paula Angles and other named plaintiffs (collectively “the

Plaintiffs”) in this proposed class action appeal the dismissal

of their complaint as untimely.           For the following reasons, we

affirm.



                                     I.

     In 2008, the Plaintiffs filed an action against Dollar Tree

Stores in the Northern District of Alabama alleging claims under

the Equal Pay Act.      Collins v. Dollar Tree Stores, Inc., 2:08-

cv-1267 (Collins I). 1      Collins I is a collective class action

alleging that Dollar Tree paid female managers less than their

male counterparts.      As part of the action, notices were sent to

other female Dollar Tree store managers employed between 2006

and 2009.     At the time Collins I commenced, 31 of the 34 named

plaintiffs    had   discrimination   charges   pending   with   the   Equal

Employment Opportunity Commission (EEOC). 2        The EEOC sent right-

to-sue letters to those named plaintiffs between November 6,

2008 and April 24, 2009.



     1
       Cynthia Collins was originally the lead plaintiff in this
action as well. Pursuant to a settlement agreement with Dollar
Tree, she voluntarily dismissed her claims and Paula Angles
became the lead plaintiff.
     2
         Three of the named plaintiffs never filed an EEOC charge.



                                     3
       On February 4, 2009, 90 days after the first right-to-sue

letters were mailed, the Plaintiffs moved pursuant to Federal

Rule of Civil Procedure 15 to amend their complaint in Collins I

to add sex discrimination claims under Title VII.                        Dollar Tree

opposed the proposed amendment, arguing that proper venue for

the Title VII claims was in Virginia, not Alabama. 3                     On February

20, 2009, the Plaintiffs filed a pleading labeled “Consent to

Severance and Reassignment of Title VII Claims,” requesting that

the Alabama district court sever the Title VII claims and assign

them to another judge.              The Plaintiffs noted that they moved to

sever and reassign the Title VII claims rather than simply file

a new complaint because “the defendant may then argue that the

ninety day limitations period . . . expired before such re-

filing.”         (J.A. 254).       Thus, “[i]n order to avoid such a risk,”

the Plaintiffs “consent only to the Title VII claims at issue

being       severed      and    reassigned   a   new    case    number   and   judge.”

(J.A. 254).

       On June 17, the Alabama district court held a hearing on

the motion for leave to amend, noting that it was inclined to

deny       the   motion    as    futile   because      venue   was   improper.     The

district         court   also    noted    that   the   motion    for   “Consent”   was


       3
       Earlier, Dollar Tree had unsuccessfully moved to transfer
the Equal Pay Act claims to Virginia.



                                             4
improper     because,     “[t]here’s    nothing   for    you    to   consent    to

unless I amend, unless I grant your motion for leave to amend,

which, again, I’m inclined to deny.”              (J.A. 263).        Failing to

recognize the Alabama district court’s signal about their need

to file in the proper district, on July 9, the Plaintiffs filed

another motion to amend the complaint.                At this point, only 76

days had passed since the EEOC issued the April 24 right-to-sue

letters.

      On September 30, 2009, the Alabama district court denied

the first motion for leave to amend as moot and the second

motion for leave to amend as futile because of improper venue.

The   next   day,   the    Plaintiffs    filed    a   new   complaint    in    the

Eastern District of Virginia stating the same Title VII claims

previously included in the proposed amended complaint in Collins

I.    Because the action was filed outside of Title VII’s 90-day

limitations period, the district court dismissed the complaint

as    untimely   filed.       In   doing    so,   the   court    rejected      the

Plaintiffs’ argument that moving to amend their complaint in

Collins I tolled Title VII’s statute of limitations and noted

that the case was not one that “turns on a plaintiff missing the

filing deadline by a few days.”              (J.A. 508).        The Plaintiffs

filed a Rule 59(e) motion to alter or amend the order, which the

district court denied.        The Plaintiffs then filed this appeal.



                                        5
                                            II.

       On appeal, the Plaintiffs argue that the district court

erred in finding that their Title VII claims are time-barred.

We   review      the    district      court’s        12(b)(6)      dismissal       de   novo,

Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th

Cir. 2010), and its denial of a Rule 59(e) motion for abuse of

discretion, Orem v. Rephann, 523 F.3d 442, 451 n.2 (4th Cir.

2008).

                                             A.

       At the outset, we note that the Plaintiffs do not dispute

that     their     complaint        was    filed       well     outside      the   relevant

limitations period.            Title VII requires that aggrieved persons

file a civil action within 90 days of receiving a right-to-sue

letter.       42      U.S.C.   §    2000e-5(f)(1).             The    last     right-to-sue

letters     were      issued   on    April      24,     2009,      and   the   Plaintiffs’

complaint was not filed until October 1, more than 150 days

later.

       In the face of the clear untimeliness of this action, the

Plaintiffs contend that the filing of the motion for leave to

file   an   amended       complaint        in       Alabama    tolls     the    statute   of

limitations in this case.                 We disagree.          Federal Rule of Civil

Procedure        15    governs      the    amendment          of     pleadings     and,   in

pertinent part, it provides that “a party may amend its pleading

only with the opposing party’s written consent or the court’s

                                                6
leave.”     Fed. R. Civ. P. 15(a)(2). 4          Under Rule 15, however, an

amended complaint is not actually “filed” until the court grants

“leave” for the amendment.              Murray v. Archambo, 132 F.3d 609,

612 (10th Cir. 1998) (noting “an amendment that has been filed

or   served   without      leave   of    court   .   .   .   is   without   legal

effect”).     For instance, in Bridges v. Department of Maryland

State     Police,    441   F.3d    197   (4th    Cir.    2006),   the   original

plaintiffs moved to amend their complaint to add 18 individual

would-be plaintiffs.         The district court denied the motion to

amend, concluding that the 18 would-be plaintiffs’ claims were

time barred.        The would-be plaintiffs appealed the denial of the

motion to amend, and we concluded that they lacked standing to

appeal because, with the motion to amend denied, they “never

became parties to the action.”           Bridges, 441 F.3d at 207.

      The Fifth Circuit has explained the operation of Rule 15 in

this situation as follows:




      4
       In contrast to motions to amend, the initial filing of a
complaint is governed by Rule 3, which explains that “[a] civil
action is commenced by filing a complaint with the court.” Fed.
R. Civ. P. 3. In conjunction with Rule 3, Rule 5 provides that
a “paper is filed by delivering it” to “the clerk” or “a judge
who agrees to accept it for filing.”   Fed. R. Civ. P. 5(d)(2).
Under these rules, “[t]he original complaint [is] considered
filed when . . . placed in the possession of the clerk of the
district court.” 4 Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure § 1153, at 471 (3d ed.
2002).



                                         7
        [F]ailing to request leave from the court when leave
        is required makes a pleading more than technically
        deficient. The failure to obtain leave results in an
        amended complaint having no legal effect. Without
        legal   effect,  it  cannot  toll   the  statute  of
        limitations period.

U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296

(5th Cir. 2003) (emphasis added).

        In   HealthSouth,      the    plaintiff,         Mathews,     filed    an     action

against his former employer under the False Claims Act on April

1,    1999.     Without      leave    of   the     court,      he    filed    an     amended

complaint on August 2, adding state law claims for, inter alia,

age     discrimination.         The     clerk      of     court     issued     Mathews       a

deficiency notice for failing to seek leave to file the amended

complaint, and on August 9, he complied with Rule 15(a) and

requested      leave    to    file     the       amended      complaint,       which       the

district court granted the same day.                    The statute of limitations

on the age discrimination claim ran on August 4, 1999.                                     The

district court ultimately dismissed the age discrimination claim

as    time-barred      even    though      the     claim      was    timely        when    the

plaintiff first filed the amended complaint.                           On appeal, the

plaintiff      contended      that,    under      Rule    3   and    Rule     5,    the    age

discrimination      claim     was     timely      “filed”     on    August     2    when    he

filed    the    amended      complaint.          The     Fifth      Circuit    disagreed,

explaining      that   “[u]nder       Rule       15(a),    [the      plaintiff]       needed

permission before his amended complaint could be filed, which he


                                             8
did    not     have    on     August    2.”       Id.    at        296.       Without    this

permission, the filing had “no legal effect” and “cannot toll

the statute of limitations period.”                       Id.        The Fifth Circuit

further      noted     that,    while    Rule     5     would       deem   a    technically

deficient      pleading       “filed,”       because,    “[a]s       the   more      specific

rule with respect to amended pleadings, Rule 15(a), not Rule 5[]

governs.”       Id.

       Likewise, in this case, although the Title VII claims were

timely when the Plaintiffs moved for leave to file the amended

complaint, the motion for leave was never granted.                             The amended

complaint was thus never filed and lacks the ability to toll the

limitations      period.         This    conclusion       is       consistent     with   the

general rule that a Title VII complaint that has been filed but

then       dismissed    without    prejudice          does     not    toll     the    90-day

limitations period.             See, e.g., O’Donnell v. Vencor Inc., 466

F.3d 1104, 1111 (9th Cir. 2006) (“In instances where a complaint

is timely filed and later dismissed, the timely filing of the

complaint       does    not    toll     or    suspend        the     90-day    limitations

period.” (internal quotation marks omitted));                              Simons v. Sw.

Petro-Chem, Inc., 28 F.3d 1029, 1030-31 (10th Cir. 1994) (same). 5

       5
        We have approved of this reasoning in several unpublished
cases.   See Quinn v. Watson, 119 Fed. App’x 517, 518 n.* (4th
Cir. 2005) (“In instances where a complaint is timely filed and
later dismissed, the timely filing of the complaint does not
‘toll’ or suspend the ninety-day limitations period.”).


                                              9
As   the    Seventh      Circuit       has    explained—outside              the   Title      VII

context—“if        the   suit    is    dismissed         without      prejudice,        meaning

that it can be refiled, then the tolling effect of the filing of

the suit is wiped out and the statute of limitations is deemed

to   have    continued      running      from       whenever      the   cause      of   action

accrued,      without       interruption        by       that    filing.”          Elmore      v.

Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000).

                                                    B.

      The     Plaintiffs        emphasize       several         lines   of    cases      in    an

effort to avoid this result. 6                  First, the Plaintiffs correctly

note that courts have generally concluded that when a motion for

leave to amend is later granted, the amended complaint is deemed

timely      even   if    the    court’s       permission         is   granted      after      the

limitations        period      ends.         This    rule       has   been    explained        as

follows:

      As a party has no control over when a court renders
      its decision regarding the proposed amended complaint,
      the submission of a motion for leave to amend,
      properly accompanied by the proposed amended complaint
      that provides notice of the substance of those
      amendments, tolls the statute of limitations, even

      6
       As part of this argument, in their reply brief, the
Plaintiffs for the first time assert that this case is analogous
to situations in which plaintiffs file a request to proceed in
forma pauperis (IFP) in conjunction with their complaint.     Of
course, a party waives an argument by failing to raise it below,
United States v. Evans, 404 F.3d 227, 236 n.5 (4th Cir. 2005),
and by waiting to raise it until the reply brief, Cavallo v.
Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996).



                                              10
       though technically the amended complaint will not be
       filed until the court rules on the motion.

Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993).                                      The

Plaintiffs contend that this rule applies here.                              The Plaintiffs’

argument on this point faces several problems, however.                                First,

in each of the cases the Plaintiffs rely on, the motion for

leave to amend was granted and, as the district court explained,

the timeliness of the amended complaint in such cases “stems

from the confluence of the plaintiff’s timely preservation of

the issue for the court’s consideration . . . and the court’s

inherent power to enter a nunc pro tunc order on that motion

that retroactively causes the proposed amended complaint to be

considered filed as of the date of the motion.”                              (J.A. 511 n.3).

Indeed,       while      several     of    the    cases,        e.g.,    Moore,      reference

“tolling,” earlier cases note that “where the petition for leave

to amend . . . has been filed prior to expiration of the statute

of   limitations,          while     the   entry       of     the    court   order    and   the

filing       of    the     amended    complaint          have       occurred    after,”     the

“amended          complaint    is     deemed          filed    within    the     limitations

period.”          Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172, 1173

(8th       Cir.    1989)    (emphasis      added). 7           The    Plaintiffs’     amended



       7
        This approach stems from a Fifth Circuit case that
predates the Federal Rules of Civil Procedure.       Rademaker v.
E.D. Flynn Exp. Co., 17 F.2d 15, 17 (5th Cir. 1927).



                                                 11
complaint cannot be “deemed filed” in a timely fashion because

it was never accepted by the district court.    Moreover, none of

these cases suggests that denying a motion to file an amended

complaint in an earlier action in another jurisdiction tolls the

statute of limitations for a newly-filed action. 8

     Second, the Plaintiffs rely on Crown, Cork & Seal Co. v.

Parker, 462 U.S. 345 (1983), and American Pipe & Construction

Co. v. Utah, 414 U.S. 538 (1974).    In those cases, the Supreme

Court held that during the pendency of a class certification,

the statute of limitations on any individuals’ claims that would

be covered by the proposed class is tolled. 9        The Plaintiffs

     8
        In cases involving the relation back of an amended
complaint to an “original pleading,” under Rule 15(c), courts
have held that a complaint in one case may not relate back to a
complaint in another case to avoid the statute of limitations.
Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 994 (8th
Cir. 1989) (“Rule 15(c) concerns amendments to pleadings.    Its
plain language makes clear that it applies not to the filing of
a new complaint, but to the filing of an amendment”); Bailey v.
Northern Ind. Pub. Serv. Co., 910 F.2d 406, 413 (7th Cir. 1990)
(“Rule 15(c), by its terms, only applies to amended pleadings in
the same action as the original, timely pleading.”).
     9
       Some courts have referred to American Pipe/Crown, Cork &
Seal as “legal tolling” because it “is derived from a statutory
source” as opposed to the “judicially created” doctrine of
equitable tolling.   Arivella v. Lucent Technologies, Inc., 623
F.Supp.2d 164, 176 (D. Mass. 2009).   See also Joseph v. Wiles,
223 F.3d 1155, 1166-67 (10th Cir. 2000) (same).         We have
previously referred to them as a species of equitable tolling.
Bridges, 441 F.3d at 211 (“The American Pipe/Crown, Cork & Seal
equitable tolling rule is a limited exception to the universal
rule that statutes of limitations are impervious to equitable
exceptions.”).


                                12
failed     to      make    this     argument   until    their       motion    for

reconsideration in the district court, and “Rule 59(e) motions

may not be used . . . to raise arguments which could have been

raised prior to the issuance of the judgment.”                Pac. Ins. Co. v.

Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

Regardless, we believe this argument is without merit.                  American

Pipe/Crown, Cork & Seal tolling applies when a class action is

commenced by the filing of a complaint and tolls an individual’s

statute of limitations, not the statute of limitations for the

proposed class. 10        Bridges, 441 F.3d at 210 (noting that, under

American Pipe/Crown, Cork, & Seal, “all class members’ claims

are tolled at the time the class action is filed, regardless of

whether      the    members       eventually   intervened      or    filed    new

actions”).      Under this rule, “[o]nce the statute of limitations

has   been    tolled,     it   remains   tolled   for   all   members    of   the

putative class until class certification is denied.”                     Crown,

Cork & Seal, 462 U.S. at 354.             The basis for tolling in those

cases was the successful operation of Rule 23 and the need to

avoid the filing of a multiplicity of suits by thousands of

      10
         Courts   have  consistently  concluded   that  American
Pipe/Crown, Cork & Seal do not permit class actions to toll the
statute of limitations for additional classes to be stacked upon
them. See Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir.
1998)   (“Plaintiffs may not stack one class action on top of
another and continue to toll the statute of limitations
indefinitely.”).



                                         13
plaintiffs in a putative class action.                           Id. at 349-51.            That

concern     is     absent       in    this      case.      Moreover,         as    previously

discussed, the Title VII claims in this case were never “filed,”

because the Alabama district court denied the motion for leave

to   file    the        amended        complaint.          Even     assuming         American

Pipe/Crown, Cork, & Seal applied to a separate class action in a

different venue, the rule still requires the actual filing of an

action in the first instance, which never occurred in this case

with respect to the Title VII claims.

     Accordingly, we find that neither the Rule 15 cases the

Plaintiffs       rely    on—which         are    more    properly    characterized          as

dealing     with    nunc    pro        tunc     power    than    tolling—nor         American

Pipe/Crown Cork & Seal provide relief for the untimely filing of

the Plaintiffs’ complaint.

                                                C.

     The Plaintiffs contend in the alternative that the statute

of   limitations         should        be     equitably     tolled       in       this   case.

Equitable        tolling    is        a     narrow      exception       to     statutes     of

limitations        and     is        appropriate        “where    the        defendant     has

wrongfully deceived or misled the plaintiff in order to conceal

the existence of a cause of action.”                       English v. Pabst Brewing

Co., 828 F.2d 1047, 1049 (4th Cir. 1987).                        The doctrine operates

to keep defendants from engaging in “misconduct that prevents

the plaintiff from filing his or her claim on time.”                                 Id.    In

                                                14
contrast, equitable tolling is not appropriate in cases where

“the claimant failed to exercise due diligence in preserving his

legal rights.”         Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,

96 (1990).        We review the district court’s denial of equitable

tolling for abuse of discretion.                         Chao v. Virginia Dep’t of

Transp., 291 F.3d 276, 279-80 (4th Cir. 2002).

       Having    reviewed      the    record,          we     agree      with      the       district

court that equitable tolling is inappropriate in this case, and

we     certainly      can   discern        no        abuse     of       discretion           in   that

decision.        Our caselaw on equitable tolling has consistently

focused    on    external      factors      hampering          the       ability        to    file   a

timely claim, and no such factor is present in this case.                                          See

e.g., Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th

Cir. 2004) (quoting Kokotis v. United States Postal Serv., 223

F.3d 275, 280 (4th Cir. 2000) (noting equitable tolling “is not

appropriate, here, because [the plaintiff] did not allege that

[the    defendant]      deceived      or    misled           her    .    .   .    ‘in    order       to

conceal the existence of a cause of action.’”)).

       The Plaintiffs rely heavily on Burnett v. New York Central

Railroad Co., 380 U.S. 424 (1965), but, like the district court,

we believe that case is inapposite.                          In Burnett, the plaintiff

timely filed an action under the Federal Employers’ Liability

Act (FELA) in an Ohio state court.                      Id. at 424.              The state court

dismissed       the   action    for    improper             venue,       and      the    plaintiff

                                                15
refiled eight days later in federal court.                             Id. at 425.           The

state action was timely filed, but the federal action was not.

Id.     at    426.           The   Court      held      that   equitable         tolling    was

appropriate            because     “when    a    plaintiff     begins      a     timely    FELA

action       in     state     court    having          jurisdiction,    and       serves    the

defendant with process and plaintiff’s case is dismissed for

improper          venue,     the    FELA      limitation       is    tolled      during     the

pendency of the state suit.”                     Id. at 434-35.       The Court found it

significant that the plaintiff “did not sleep on his rights” but

timely filed an action in state court, that service of process

was made, that Ohio permitted waiver of venue objections, and

that     the       defendant        railroad       itself      had    previously        waived

improper venue.              Id. at 429.           As the district court properly

noted,       however,          there       are     “key     factual        and     procedural

distinctions” between Burnett and this case, namely that “unlike

in    Burnett,          no   timely    Title       VII     action    was    ever       actually

commenced” because the motion to amend was never granted.                                  (J.A.

516).

       In affirming the district court’s conclusion on equitable

tolling,          we    emphasize      that      the     Plaintiffs    had       two    avenues

available to ensure that their rights were vindicated in this

litigation.             First, to the extent the Plaintiffs believe the

district court in Alabama committed legal error in denying the

motion to amend, they could have appealed that decision to the

                                                  16
Eleventh Circuit.           The Plaintiffs are asking us to equitably

toll the statute of limitations, not because they were misled by

Dollar Tree, or provided inaccurate information by the EEOC, but

because of an unfavorable judicial decision—a decision that they

have not appealed.          Second, the Plaintiffs could have protected

themselves by timely filing an action in the Eastern District of

Virginia—an       option    still       available    at   the   time   the   district

court indicated that it was likely to reject the motion for

leave to amend.          The Plaintiffs declined to do so even though,

in their own motion for “Consent to Sever,” they recognized the

potential      statute     of    limitations       problems.      As   the   district

court explained, the “procedural details . . . highlight the

gamble     that     plaintiffs’          counsel     knowingly     made.     .     .     .

Plaintiffs’ counsel lost that gamble when [the Alabama district

court] denied the motion for leave to amend.”                   (J.A. 519).

       Accordingly, under these particular circumstances, we agree

with     the   district         court     that     equitable     tolling     was       not

appropriate.



                                           III.

       For the foregoing reasons, we affirm the district court’s

grant of Dollar Tree’s motion to dismiss.

                                                                             AFFIRMED



                                            17
DAVIS, Circuit Judge, dissenting:

     Not least because I am confident that Chief District Judge

Sharon Lovelace Blackburn of the United States District Court

for the Northern District of Alabama could not remotely have

believed, when she dismissed Appellants’ Title VII claims in

lieu of transferring venue to the Eastern District of Virginia,

that these Appellants would arrive at the Fourth Circuit only to

find the courthouse door locked, I respectfully dissent.

     The majority ignores the compelling facts of this case and

principally relies on outside circuit authority that is not on

point to reach a fundamentally unfair result.

     First, the majority unfairly takes the Appellants and their

counsel    to    task       for    filing     their    Title      VII    claims      in    the

Northern District of Alabama, suggesting that the outcome is

justified    here      because       of     their   own     inaction.        The    majority

suggests        the     Appellants’          consent        to     severance         was     a

“recogni[tion         of]     the      potential           statute      of    limitations

problems,” Maj. Op. at 4, 17, but fails to mention that the

Appellants only consented to severance because of the original

(senior      district)            judge’s     “standing          instruction         against

assignment      of    any    case    with    Rule     23    allegations.”          J.A.   257.

Indeed, in the consent to severance, they argued that venue was

proper in the Northern District of Alabama.



                                              18
      Perhaps more problematic, the majority emphasizes that the

district court “signal[ed]” to the Appellants “about their need

to   file   in    the    proper   district,”    Maj.    Op.     at   5,   as   if   the

signalling       had    the   legal   effect   of   a   final    decision      on   the

matter. 1 The Appellants, however, did not know at that point that

venue was “improper” in the Northern District of Alabama and

cannot be faulted for failing to act on the judge’s mere passing

comments during the hearing. Moreover, counsel had to know, and

it seems they did know, 2 that the district court at this point

could have, and should have, transferred the Title VII claims.

      1
       I am quite uncertain what to make of the majority’s
observation that Appellants “[f]ail[ed] to recognize the Alabama
district court’s signal about their need to file in the proper
district,” Maj. Op. at 5, or how, precisely, that supports the
outcome reached by the majority. It is true that at the hearing
on the motion to amend in this case, Chief Judge Blackburn said
what the majority attributes to her. But, local legal culture
being whatever it is in the Northern District of Alabama, the
judge also referred during the hearing to counsel by his
nickname, “Bob.” J.A. 263. I have previously acknowledged that
“local legal culture drives [certain] practices.” Robinson v.
Wix Filtration Corp. LLC, 599 F.3d 403, 414 (4th Cir. 2010)
(Davis, J., concurring); Priestley v. Astrue, 651 F.3d 410, 420
(4th Cir. 2011) (Davis, J., concurring). Nevertheless, deciding
cases in this circuit on the basis of ostensible “signals” sent
by out-of-circuit district judges to out-of-circuit lawyers in
cases heard outside this circuit does not commend itself to me.
      2
        See J.A. 255 (citing, in consent to severance, a case for
the proposition that “the ‘interests of justice generally
instructs courts to transfer cases to the appropriate judicial
district, rather than dismiss them’”) (brackets and ellipses
omitted); Appellants’ Br. 3 (“Rather than transferring such
claims, however, Chief Judge Blackburn dismissed them without
prejudice to refiling in the Eastern District of Virginia.”).



                                         19
See 28 U.S.C. §§ 1404(a), 1406(a); Goldlawr, Inc. v. Heiman, 369

U.S. 463, 467 (1962); see also J.A. 517 (district judge in the

Eastern District of Virginia noting that the Court’s analysis in

Goldlawr “could perhaps have been employed” to justify granting

the motion and then transferring). And furthermore, the majority

seems to believe that most of the Appellants’ claims could have

been “saved” at this point by filing elsewhere. See Maj. Op. at

5 (“[O]nly 76 days had passed since the EEOC issued the April 24

right-to-sue letters.”). The majority turns a blind eye to the

whole truth: Only two named plaintiffs received the April 24

right-to sue letters; more than 90 days had passed since 29 of

the named plaintiffs had received the right-to-sue letters.

      Second,     the   majority   conveniently     omits    important     facts

that show the fundamental unfairness of the result it reaches.

The Appellants did not engage in delay or unwisely “gamble” on

their claims by engaging in baseless litigation in the Northern

District of Alabama. Maj. Op. at 17 (quoting J.A. 519). Rather,

they had a sound legal basis for their belief that venue was

proper for the Title VII claims in the Northern District of

Alabama. They asserted that under Title VII each named plaintiff

did not need to independently show venue was properly laid in

the   district;    rather,   it    was   enough   for   at   least   one   named

plaintiff to be properly venued. See Appellants’ Br. 40. They

also asserted that they could rely on venue being proper for six

                                         20
of the named plaintiffs, or “class representatives,” J.A. 371,

while the remaining non-Alabama named plaintiffs could remain as

class members until the court decided whether there would be a

class. See Appellants’ Br. 40. They also relied on a pendent

venue argument. See id. Chief Judge Blackburn rejected these

arguments, but not on the basis of well-established Eleventh

Circuit precedent. 3 Rather, she relied on an unpublished Eleventh

Circuit case, 4 district court cases from other circuits, and the

doctrine of judicial estoppel. Moreover, as the Appellants point
     3
       Indeed, in making the final argument that leave should be
denied because venue was improper in its opposition, Dollar Tree
urged the court to “adopt the view of its sister courts in other
Circuits and require that each named plaintiff individually
satisfy the express venue provisions set forth in Title VII”
“[i]n the absence of Eleventh Circuit authority.” J.A. 241
(emphasis added).
     4
         The Eleventh Circuit has said,

     “Unpublished opinions are not considered binding
     precedent, but they may be cited as persuasive
     authority.” 11th Cir. R. 36–2. Furthermore, “[t]he
     court may cite to [unpublished opinions] where they
     are specifically relevant to determine whether the
     predicates for res judicata, collateral estoppel, or
     double jeopardy exist in the case, to ascertain the
     law of the case, or to establish the procedural
     history or facts of the case.” 11th Cir. R. 36, I.O.P.
     7.

Borden v. Allen, 646 F.3d 785, 808 n.27 (11th Cir. 2011); see
also Boutwell v. Advance Constr. Servs., No. 07-0447-WS-C, 2007
WL 2988238, at *4 n.4 (S.D. Ala. Oct. 11, 2007) (“Even if
defendant’s construction of [Pinson v. Rumsfeld, 192 F. App’x
811 (11th Cir. 2006), the case relied upon by Chief Judge
Blackburn] were valid, which it is not, the fact remains that
Pinson is unpublished and therefore nonbinding.”).



                                 21
out in their brief, “in an identical case,” a district judge in

the Northern District of Alabama had ruled “that out-of-state

Store Managers for a rival dollar store chaing [sic] could bring

their Title VII claims in the same district as their parallel

EPA        claims.”    Appellants’          Br.       36-37     (citing       Colvert      v.

Dolgencorp, Inc., Order, No. 2:06-cv-465-veh (N.D. Ala. Nov. 30,

2007)). Thus, despite having a legal foundation for filing in

the Northern District of Alabama, because Chief Judge Blackburn

denied       their    motion      to     amend    and   failed       to    transfer   their

claims, even though Appellants filed the instant complaint the

very next day in the Eastern District of Virginia, Appellants

have       been    denied        their    deserved      day     in        court.   This    is

unconscionable.

       Third, the majority compounds this fundamental injustice by

relying principally on outside circuit authority, which is not

on    point,      instead    of    more     compelling        reasoning      behind   cases

cited by the Appellants, which are entirely consistent with the

letter and the spirit of the Federal Rules of Civil Procedure

and    the     purpose      of    statutes       of   limitations         generally. 5    The


       5
       The Fourth Circuit case the majority relies upon to reach
its conclusion is inapposite. In Bridges v. Department of
Maryland State Police, 441 F.3d 197, 206-07 (4th Cir. 2006),
this court had no reason to directly construe Rule 15, but
instead considered whether would-be plaintiffs had standing to
appeal.



                                             22
majority      relies    principally     on   U.S.   ex   rel.    Mathews   v.

HealthSouth Corp., 332 F.3d 293 (5th Cir. 2003), which concerned

the requirement under Rule 15 to request leave of the court

before filing an amended complaint. There, the plaintiff only

ever properly filed the correct documents, a motion requesting

leave to amend and the amended complaint, after the limitations

period had run. Id. at 295. Thus, the court had no need to

address whether, as here, the limitations period is tolled where

a party moves for leave to file the amended complaint when the

claims are timely but the motion for leave is not granted.

       The cases relied on by the Appellants, which the majority

rejects, are also admittedly not directly on point, but are more

consistent with the purpose behind the rules of civil procedure

and limitations periods generally. As the majority notes, courts

have generally concluded that, when a motion for leave to amend

is later granted, the amended complaint is deemed timely even if

the court’s permission is granted after the limitations period

ends. At least one of the underlying reasons justifying this

result is that plaintiffs “ha[ve] no control over when a court

renders its decision regarding the proposed amended complaint.”

Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993); see also

Sellers v. Butler, No. 02-3055-DJW, 2007 WL 2042513, at *12 (D.

Kan.   July    12,     2007)   (“To   hold   otherwise   would   punish    the

plaintiff for the Court’s unavoidable delay in issuing the order

                                       23
granting leave to amend the complaint.”). This fairness concern

applies equally where the motion for leave to amend is granted

as where it is denied; indeed, the concern is heightened where

the motion is ultimately denied. It is particularly apt here.

     Allowing tolling under this rule is more consistent with

the policies behind the Federal Rules of Civil Procedure. Rule

1, which “governs all the rest,” Aikens v. Ingram, 652 F.3d 496,

519 (4th Cir. 2011) (King, J., dissenting), provides that the

Federal   Rules     of     Civil   Procedure       “should     be    construed       and

administered      to     secure    the     just,    speedy,       and    inexpensive

determination of every action and proceeding.” The Appellants’

decision to amend their complaint to add their parallel Title

VII claims to the pending EPA claims in the Northern District of

Alabama   is   wholly       consistent     with     this     rule.      It   was    also

consistent with Rule 23, which “permits and encourages class

members to rely on the named plaintiffs to press their claims”

and to avoid a “needless multiplicity of actions,” Crown, Cork &

Seal Co. v. Parker, 462 U.S. 345, 351-53 (1983), and Rule 15,

which is to be applied liberally to ensure “that pleadings are

not an end in themselves but are only a means to assist in the

presentation   of      a   case    to    enable    it   to   be     decided    on   the

merits,” Wright et al., Federal Practice and Procedure § 1473

(3d ed. 2010). Furthermore, the defendants had notice and would

not have been prejudiced in any fashion by allowing the case to

                                          24
proceed to the merits. 6 See Crown, Cork & Seal, 462 U.S. at 352

(“Limitations periods are intended to put defendants on notice



     6
       In dismissing this case, the district judge in the Eastern
District of Virginia observed:

          The court notes at the outset of this discussion
     plaintiffs’ position that any claim by defendant of
     prejudice in this connection is dubious. As noted
     above, this case involves substantially the same named
     plaintiffs (and putative plaintiff class) as those in
     Collins I, suing the same defendant for a claim
     arising out of the same conduct set out in the
     original complaint in Collins I. Moreover, defendant
     clearly had actual notice within the statute of
     limitations period--in the form of the motion for
     leave to amend in Collins I, which attached the
     proposed amended complaint--of plaintiffs’ intent to
     pursue a Title VII claim in addition to its existing
     Equal Pay Act claim. It is therefore entirely
     arguable,   and   even    somewhat  persuasive,   that
     permitting this case to proceed would not offend the
     admittedly strong policy considerations underlying the
     statute of limitations defense.

J.A. 514-15.

     Similarly, in denying the Appellee’s post-judgment motion
for attorney’s fees and sanctions, the lower court had this
trenchant observation:

     Indeed, in a sense, plaintiffs were merely doing what
     Judge Blackburn’s decision on their motions for leave
     to amend the Collins I complaint forced them to do;
     namely, to bring their Title VII claim as a separate
     action in this court, where, it should be noted,
     defendant had repeatedly argued venue was proper. It
     is somewhat ironic that defendant now seeks to
     characterize    as    vexatious    multiplication  of
     proceedings the very act that it had previously
     chastised plaintiffs for not doing; namely, filing
     their Title VII claim against defendant in this court
     instead of in the Northern District of Alabama.

(Continued)
                               25
of adverse claims and to prevent plaintiffs from sleeping on

their      rights   .    .   .   .”).    The    majority’s     ruling     contorts     the

purposes      of    these     rules     by     encouraging     multiple      filings    in

multiple       courts,       deterring       similar      plaintiffs    in   collective

actions from bringing parallel claims, and ensuring that this

case is not decided on the merits. 7

       At the end of the day, I am confident that if Chief Judge

Blackburn had any inkling whatsoever that in dismissing rather

than       transferring      this     action,       she   would   foreclose     further

proceedings, she would take it all back. I would act on that

confidence and reverse the order dismissing this case and remand

for further proceedings. 8




Collins v. Dollar Tree Stores, Inc., Opinion and Order, No.
2:09-cv-00486-JBF, at 21-22 (E.D. Va. May 28, 2010) (final
emphasis added).
       7
       Plainly, under the circumstances of this case, we should
allow “the limitations period to be tolled during the pendency
of related litigation because it [is] consistent with the
[remedial Title VII] statutory scheme and equitable principles
to do so.” Bowen v. City of New York, 476 U.S. 467, 479 n.11
(1986) (alterations added); see also Honda v. Clark, 386 U.S.
484, 501 (1967) (“We consider it much more consistent with the
overall congressional purpose to apply a traditional equitable
tolling principle, aptly suited to the particular facts of this
case and nowhere eschewed by Congress, to preserve petitioners’
cause of action.”).
       8
       My confidence is bolstered by Chief Judge Blackburn’s
recognition of the potential harshness of the result, see J.A.
371, and allusion to the alleged “futility” of the Appellants’
Title VII claims. But see J.A. 283 (Chief Judge Blackburn
(Continued)
                                               26
    Respectfully, I dissent.




recognizing that Appellants’ time to file a complaint in another
venue might have run). But in the circumstances of this case, or
any case for that matter, the ostensible “futility” of a claim
for purposes of Rule 15’s liberal amendment provisions bespeaks
the “legal insufficiency” of such a claim, not the simple fact
of mislaid venue. Cf. Burger King Corp. v. Weaver, 169 F.3d
1310, 1320 (11th Cir. 1999). After all, the very purpose of the
venue transfer provisions of 28 U.S.C. §§ 1404(a) and 1406(a) is
to correct the kind of inconsequential error in selecting venue
as is apparent in this case.

     A simple thought experiment demonstrates the correctness of
such an outcome. Imagine that a putative class action was timely
filed under Title VII laying venue in the Western District of
North Carolina but where, arguably, venue lies only in the
District of South Carolina. Several months after a hearing on
the defendants’ contested motion to dismiss (or, as here,
alternatively, to transfer) for improper venue, and after the
ninety-day period for filing a new action had expired, the
district court dismisses the case rather than transferring it to
South Carolina. I have no doubt that this court would reverse a
decision of the South Carolina district court dismissing a
newly-filed action in that district, whether on the basis of
legal tolling, equitable tolling, or a plain vanilla abuse of
discretion determination. The same result should obtain here.



                               27
