RULINGS ON PENDING MOTIONS
BEN C. DAWKINS, Jr., Chief Judge.
This matter is presently before the Court on various motions by defendants, most of which seek dismissal of a complaint filed pursuant to Title VII of the Civil Rights Act of 1964 (Equal Employment Opportunities; 42 U.S.C. § 2000e et seq.) alleging discriminatory employment practices.
For purposes of disposition here, the barrage of defense motions may be categorized under (1) lack of capacity, (2) failure to state a claim and lack of jurisdiction, and (3) motions to strike.
For purposes of brevity, and in hope of clarity, we here briefly outline only the essential skeletal facts set forth in the complaint. The operative facts are discussed in detail where necessary in consideration of the relevant motions or related group of motions.
Katie Mae Washington,
Lack of Capacity
The dispute regarding those motions based on lack of capacity arises out of the fact that complainant named T. G. & Y. Family Center as party defendant yet Family Center is merely a trade name
The essence of defendant's motions relative to lack of capacity is that neither T. G. & Y. Family Center nor T. G. & Y. Stores Co. should be defendants in this action; the former because of its lack of capacity to be sued as a trade name and the latter for want of timely service.
We conclude that defendant's argument is without merit; it is controlled by Rule 15(c), F.R.Civ.P:
Judge Goldberg, writing for a panel of the Fifth Circuit, recently has discussed Rule 15(c) in an analogous case. His discussion aptly applies here and merits quotation at length:
See also, Brittian v. Belk Gallant Co., 301 F.Supp. 478 (N.D.Ga.1969); Infotronics Corp. v. Varian Assoc. Corp., 45 F.R.D. 91 (S.D.Tex.1968). Cf. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957).
As concluded in that case, we here think it clear that each of the requirements for application of Rule 15(c) is met. Since the amended complaint made no change in the substance of the claim asserted in the original complaint, it is undisputed that the amended complaint "arose out of the conduct, transaction, or occurrence" set forth in the original complaint. T. G. & Y. Stores Co. must have received adequate notice of the institution of the suit, for C. T. Corporation, its agent, was in fact served and the same legal counsel has defended this suit for both "Family Center" and "Stores Co." Since a charge had been filed and conciliations attempted, "Stores Co." knew that Mrs. Washington had every intention of bringing suit against her former employer, whether that proper title ended with "Family Center" or "Stores Co.," and that her failure to name "Stores Co." as defendant resulted from a "mistake concerning the identity of the proper party."
Lack of Jurisdiction/Failure to State A Claim
Defendant seeks dismissal here based primarily on two contentions. First, it alleges that there was no timely and properly sworn Charge of Discrimination. Next, it alleges that the EEOC did not serve the Charge within a reasonable time after it was filed.
1. Unsworn charge
Plaintiff filed her charge with the Commission October 20, 1969. Defendant maintains that since this charge was not a sworn charge and was not properly amended it is not a valid charge and cannot therefore be a basis for a civil suit under § 706(a) of the Act, 42 U.S. C. § 2000e-5(a).
February 16, 1970, plaintiff met with an equal employment officer and made "another" charge which was verified under oath. Defendant would have us find this was a separate charge and therefore untimely. Plaintiff argues it merely amended the first "charge."
Commission Regulation, 29 CFR 1601.11(b),
We find that the February 16, 1970, charge is an amendment to the October 20, 1969, charge as provided in 29 C.F.R. 1601.11(b). We do not think it necessary (although we suggest that such be done) as defendant would require clearly and facially to indicate on the amended charge that it is an "amendment." The substance of both lay-initiated charges is essentially the same. Defendant is in no way prejudiced and plaintiff should not be made to suffer for an administrative, lay oversight. See Sanchez v. Standard Brands, 431 F.2d 455 (5th Cir. 1970); Georgia Power Co. v. E. E. O. C., 412 F.2d 462 (5th Cir. 1969). Cf. Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968):
2. Service of Charge
Defendant asserts that the Court lacks jurisdiction in this case because the Commission took an unreasonably long time (141 days) formally to notify defendant of the charge through service of the charge filed against it. Defendant relies on dicta in Georgia Power Co. v. E. E. O. C., supra, at 467 n. 10, to support its contention:
Defendant would have us hold that this dicta establishes the requirement of prompt service of the charge on the employer as jurisdictional in nature. We think such a position is not warranted by other than a strained interpretation of the statute and prior jurisprudence. The Fifth Circuit, as have most other Circuits considering this matter,
We think the rationale in Dent is clearly applicable here. Petitioner should not be prejudiced by failure of prompt service of the charge by the Commission when that in no way was under her control. Further, we do not find, absent a clear and affirmative showing of prejudice, that the delays here are per se unreasonable.
3. Rule 8(a) (2), Federal Rules of Civil Procedure
The last of defendant's motions under this grouping asserts that the complaint fails to meet the criteria of Rule 8(a) (2) in presenting "a short and plain statement of the claim showing that the pleader is entitled to relief."
Professor Moore's oft-quoted phrase is appropriate: "Litigation is not an art of writing nice pleadings * * * the function of pleadings is to give fair notice of the claim asserted so as to enable the adverse party to answer and prepare for trial * * *." 2A Moore's Federal Practice ¶ 8.13.
It is clear that a motion to dismiss "should not be granted unless it appears to a certainty that no relief under any state of facts * * * could be proved in support of [a] claim." Barnes v. Merritt, 376 F.2d 8, 11 (5th Cir. 1968). We think the complaint here meets the criteria of Rule 8(a) and states claims upon which relief may be granted. Whatever ambiguity may exist in the complaint can be cured through reference to the charge and use of discovery.
Motion to Strike
Defendant asserts that the administrative charge with the EEOC alleges only unlawful discharge and that the Court must similarly limit the scope of the complaint. Mrs. Washington's hand-written, somewhat inarticulate and rambling complaint indicates she was discharged because of race discrimination. Because of the lay-initiated nature of these charges, we cannot conclude that the complaint should be held to conform strictly to the charges. Mrs. Washington, in addition to her primary reference to discharge, alleged "a lot of things are going on at the T. G. & Y. Store and Family Center" after also checking the box on the form provided by the EEOC indicating discrimination because of "race or color." We think this is enough to put defendant on notice and to charge defendant with racial discrimination other than merely discharge per se. Cf. Sanchez v. Standard Brands, supra.
We also find that none of the matter is of a "scandalous" nature and need be stricken.
In consideration of this motion, as well as all others here, Judge Tuttle's comments on the role of Courts in Title VII litigation is appropriate:
Nothing said herein in any way indicates a prejudgment, or a reflection on the parties or indicates views with respect to the merits of the case.
All of defendant's motions hereby are denied.
SUPPLEMENTAL RULING ON MOTION TO DISMISS
Pursuant to our granting defendant's "Motion for Limited Reargument," defendant again urges that the requisites of Rule 15(c) of the Federal Rules of Civil Procedure have not been met and therefore the complaint should be dismissed as untimely. See our Memorandum Ruling dated March 5th, 1971.
Defendant acknowledges that normally the filing of the complaint interrupts prescription if the proper party defendant is named, but strongly argues that actual notice (service) must be received within the thirty-day time period (42 U.S.C. § 2000e-5(e)), where as here, the original complaint through non-prejudicial misnomer names a technically incorrect party as defendant. (T. G. & Y. Family Center instead of T. G. & Y. Stores Co.)
That portion of Rule 15(c) upon which defendant relies and which it contends requires dismissal provides:
Prior to the 1966 amendment to Rule 15(c), part of which is referred to above, 15(c) consisted solely of the language which is now the first sentence of the amended Rule.
The 1966 Amendments to Rule 15(c) were an attempt to liberalize and clarify its provisions. It certainly was not considered an attempt to restrict the liberality of amendments or their relation back. See, e. g., Notes of Advisory Committee on Rules, Fed.Rules Civ.Proc. Rule 15(c), 28 U.S.C.A. (Pocket Part).
We do not think the added language upon which defendant relies can properly be construed to make more difficult the correction of misnomer and its relation back. We think there is a difference between correcting a misnomer and "changing a party" and that a misnomer may be corrected under the first sentence of Rule 15(c) as amended (the old Rule 15(c)).
Judge Wisdom, speaking for the Fifth Circuit panel (Judges Tuttle and Brown) in a case strikingly similar to the instant one, disposed of defendant's contention under the old Rule 15(c), now the first sentence of the amended Rule. In Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958), the complaint was filed the day the statute of limitations expired. Because counsel did not have sufficient service copies, he requested a delay in service. It was subsequently discovered that the name of the defendant was incorrectly designated on the complaint. After the statutory time period, plaintiff
The Court upheld the District Court in allowing the amendment and its relation back. Judge Wisdom reiterated the test to be employed:
The Court then concluded:
Under the facts of the instant case, we have no doubt that the defendant T. G. & Y. Stores Co. was the party intended to be sued (See our discussion in our prior Ruling). Since the right party was before the Court, although originally under a wrong name, we hold the amendment was properly allowed to cure the misnomer and under the first sentence of Rule 15(c) it relates back to the date of filing. Cf. Wentz v. Alberto Culver Company, 294 F.Supp. 1327 (D. Mont. 1969); County Theatre Co. v. Paramount Film Dist. Corp., 166 F.Supp. 221 (E.D.Pa. 1958), approved Shapiro v. Paramount Film Dist. Corp., 274 F.2d 743 (3rd Cir. 1960); People of the Living God v. Star Towing Co., 289 F.Supp. 635, 641 (E.D.La. 1958).
For these reasons and those set forth in our original Ruling, the Motion to Dismiss is denied.
Unlawful employment practices—Employer practices
(a) It shall be an unlawful employment practice for an employer—