17-2743-cv
Flora Ko v. JP Morgan Chase Bank, N.A.

                   UNITED STATES COURT OF APPEALS
                       FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule
of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary
order in a document filed with this Court, a party must cite either the Federal
Appendix or an electronic database (with the notation “Summary Order”). A party
citing a summary order must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 17th day of April, two thousand and eighteen.

Present:
              PETER W. HALL,
              CHRISTOPHER F. DRONEY,
                       Circuit Judges,
              TIMOTHY C. STANCEU,*
                       Judge.


FLORA KO,

                     Plaintiff-Appellant,

              v.                                                No. 17-2743-cv

JP MORGAN CHASE BANK, N.A.,

                     Defendant-Appellee.


For Plaintiff-Appellant:                 Chauncey D. Henry, Henry Law Group, Garden
                                         City, N.Y.

For Defendant-Appellee:                  Thomas J. Cahill, (Jennifer Philbrick McArdle,
                                         on the brief), Satterlee Stephens LLP, New York,
                                         N.Y.

                                                            
*
  Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting
by designation.
      Appeal from a judgment of the United States District Court for the Southern

District of New York (Batts, J.).

      UPON      DUE      CONSIDERATION,           IT   IS    HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Plaintiff-Appellant Flora Ko appeals from the district court’s judgment

dismissing her complaint that brought claims against her former employer, JP

Morgan Chase Bank, N.A., for age discrimination under the Age Discrimination and

Employment Act of 1967 (ADEA), 29 U.S.C. § 623(a), Title VII of the Civil Rights Act

of 1964 (Title VII), 42 U.S.C. § 2000e, and New York State and City Human Rights

laws. The district court granted JP Morgan Chase’s Rule 12(b) motion because the

complaint was not timely filed and it failed to state a claim upon which relief can be

granted. Ko asserts that the district court should have denied the motion to dismiss

by applying the doctrine of equitable tolling and should have allowed her leave to

amend her complaint. We assume the parties’ familiarity with the underlying facts,

the procedural history, the district court’s rulings, and the arguments presented on

appeal.

      Both the ADEA and Title VII provide that an employment discrimination suit

must be filed within 90 days of the receipt of the right to sue letter from the EEOC.

See 42 U.S.C. § 2000e-5(f)(1). Failure to bring suit within the 90-day limitation period

is fatal to the claim unless subject to equitable tolling. See Johnson v. Al Tech

Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (“While the 90-day rule is not



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a jurisdictional predicate, ‘in the absence of a recognized equitable consideration, the

court cannot extend the limitations period by even one day.’” (quoting Rice v. New

England Coll., 676 F.2d 9, 11 (1st Cir. 1982))). This Court presumes that a mailed

document is received three days after its mailing, see Sherlock v. Montefiore Med.

Ctr., 84 F.3d 522, 525–26 (2d Cir. 1996), and that the notice is presumed to have been

mailed on the date shown on the notice, see id.

      Based on the three-day rule of Sherlock, Ko received her right-to-sue letter on

July 2, 2016, but did not file her complaint in the district court until October 2, 2016—

two days after the ninety-day deadline of Friday, September 30, 2016. On appeal, Ko

does not challenge the legal presumptions articulated in Sherlock, or provide evidence

to rebut the presumption that she received her right-to-sue letter on July 2, but

instead she argues the district court should have applied equitable tolling to find her

complaint timely because the weekend after her letter was sent was the

Independence Day holiday weekend. While we review de novo the grant of a motion

to dismiss under Rule 12(b)(6), accepting as true the factual allegations in the

complaint and drawing all inferences in the plaintiff’s favor, see Scutti Enters., LLC.

v. Park Place Entm’t. Corp., 322 F.3d 211, 214 (2d Cir. 2003), we review a district

court’s decision to deny equitable tolling for abuse of discretion, see Alli–Balogun v.

United States, 281 F.3d 362, 367–68 (2d Cir. 2002).

      When determining whether equitable tolling is applicable, a district court must

consider whether the person seeking application of the equitable tolling doctrine has

“acted with reasonable diligence during the time period she seeks to have tolled” and



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must prove that the circumstances are so extraordinary that the doctrine should

apply. Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512

(2d Cir. 2002). “One who fails to act diligently cannot invoke equitable principles to

excuse [a] lack of diligence.” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151

(1984). Here, Ko has not demonstrated that she acted diligently during the ninety-

day time period or that the circumstances are so extraordinary in her case as to

warrant equitable tolling. Every litigant seeking relief from a district court must

navigate federal holidays in the calendar, and Ko provides no authority suggesting

that equitable tolling should be granted for alleged delays in the mail service. See

Sherlock, 84 F.3d at 525–26. We conclude, therefore, that the district court did not

abuse its discretion in declining to grant equitable tolling to excuse Ko’s untimely

complaint.

      Ko also asserts she should have been given leave amend her complaint, and

the district court erred by denying that request. We review denial of leave to amend

under an “abuse of discretion” standard, see McCarthy v. Dun & Bradstreet Corp.,

482 F.3d 184, 200 (2d Cir. 2007), except in circumstances when the denial of leave to

amend is based on a legal interpretation, such as a determination that the

amendment would be futile, in which case a reviewing court conducts a de novo

review, see Hutchinson v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011).

      The district court did not abuse its discretion by refusing to accept Ko’s

amended complaint because it was improperly filed. JP Morgan Chase moved to

dismiss Ko’s original complaint on January 31, 2016, and stipulated that Ko’s time to



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oppose the motion would be extended to February 24, 2016. That stipulation did not

extend Ko’s time to amend her complaint. The district court correctly noted that Ko

could not amend her complaint as of right under Fed. R. Civ. P. 15(a)(1)(B) because

she filed her amended complaint more than 21 days after being served with JP

Morgan Chase’s motion to dismiss. Moreover, because Ko did not file a motion for

leave to amend pursuant to Fed. R. Civ. P. 15(a)(2), the district court did not abuse

its discretion by declining to treat Ko’s untimely, unauthorized amended complaint

as a motion seeking leave to amend.

      To the extent that Ko’s appeal implicitly challenges any of the other findings

of the district court, we decline to consider those arguments. Norton v. Sam’s Club,

145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are

considered waived and normally will not be addressed on appeal.”). We have

considered Plaintiff’s remaining arguments and find them to be without merit.

      We AFFIRM the judgment of the district court.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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