489 F.2d 525 (6th Cir. 1973), 73-1306, Johnson v. Railway Exp. Agency, Inc.

Docket Nº:73-1306.
Citation:489 F.2d 525
Party Name:8 Empl. Prac. Dec. P 9459 v. RAILWAY EXPRESS AGENCY, INC., et al., Defendants-Appellees. Willie JOHNSON, Jr., Plaintiff-Appellant,
Case Date:November 27, 1973
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 525

489 F.2d 525 (6th Cir. 1973)

8 Empl. Prac. Dec. P 9459

Willie JOHNSON, Jr., Plaintiff-Appellant,


RAILWAY EXPRESS AGENCY, INC., et al., Defendants-Appellees.

No. 73-1306.

United States Court of Appeals, Sixth Circuit.

November 27, 1973

Argued Oct. 11, 1973.

Page 526

William L. Robinson, New York City, for plaintiff-appellant; William E. Caldwell and Ural B. Adams, Jr., Ratner, Sugarmon & Lucas, Memphis, Tenn., Jack Greenberg, New York City, on brief.

George E. Morrow and Saul C. Belz, Memphis, Tenn., for defendants-appellees; Saul C. Belz, Burch, Porter & Johnson, Martin, Tate, Morrow & Marston, Memphis, Tenn., and James L. Highsaw, Highsaw & Mahoney, Washington, D.C., on brief.

Before WEICK, Circuit Judge, O'SULLIVAN, Senior Circuit Judge, and ALLEN, [*] District Judge.

WEICK, Circuit Judge.

This appeal is from an order of the District Court dismissing plaintiff's complaint which alleged employment discrimination. crimination.

Plaintiff-appellant, Willie Johnson, filed timely charges with Equal Employment Opportunity Commission (EEOC) 1967 in which he alleged that his employer, Railway Express Agency, Inc. (REA), discriminated against him with regard to seniority rules and job assignments. Johnson further asserted that he had been discharged by REA because of his race (black). Johnson also charged the Brotherhood of Railway Clerks Tri-State Local and the Lily of the Valley Local with maintaining segregated Locals.

On December 22, 1967 EEOC filed a report concluding that the company and the unions had engaged in discriminatory practices; however, it was not until January 15, 1971 that Johnson received his notice of right to sue letter from EEOC. Initially Johnson was unable to retain a lawyer to file suit authorized by the letter. On February 12, 1971 District

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Judge Bailey Brown allowed Johnson to file the EEOC notice-letter with the Clerk as satisfying the duty to institute suit within thirty days from date of receiving notice. Judge Brown further allowed Johnson to proceed in forma pauperis and appointed an attorney to represent him. The court-appointed attorney filed an amended complaint on March 18, 1971, setting forth in more detail Johnson's claims.

At this point both defendants moved for summary judgment supported by affidavits. The unions also propounded to plaintiff interrogatories, which he answered. Plaintiff submitted no affidavits in opposition to these motions.

On June 14, 1971 the Court entered an order which-- (1) dismissed all claims based on statutes other than Title VII of the 1964 Civil Rights Act as barred by Tennessee's one-year statute of limitations, (2) denied the defendants' claims that the filing of the EEOC notice-letter was insufficient to meet the thirty-day filing requirement, (3) granted the two unions' motions for summary judgment, holding that the plaintiff had no claim against them under the 1964 Civil Rights Act, (4) granted the motion of REA for summary judgment regarding improper supervisory training, and (5) denied REA's motion for summary judgment regarding Johnson's claims of discriminatory discharge, denial of promotional opportunities, and discrimination in job assignment.

After this ruling, REA offered Johnson one hundred fifty dollars in settlement of the case; Johnson refused. Subsequently the case was assigned for trial and Johnson's court-appointed attorney, with the Court's permission, withdrew from the case on January 14, 1972. On that date the Clerk of the District Court, acting pursuant to the Court's direction, wrote a letter to Johnson giving him thirty days in which to obtain a new attorney or have his case dismissed without prejudice. Johnson did not obtain a new attorney within such time, and on February 16, 1972 Judge Brown entered an order dismissing the action without prejudice. We need not determine the propriety of this order because it was a final order from which no appeal was taken.

On February 17, 1972 William Caldwell, now one of Johnson's lawyers, wrote to Judge Brown informing him that he, Caldwell, was looking for financial support which would enable him to take Johnson's case. The letter was clearly not an announcement that Caldwell was his counsel; the letter stated only that he might be Johnson's counsel at some point in the future. Later Caldwell found such financial support and did undertake to represent Johnson. On May 31, 1972 a second complaint was filed against REA and the unions, with Caldwell acting as counsel for Johnson.

All of the defendants moved for dismissal or, in the alternative, for summary judgment. The case was assigned to District Judge Wellford, who ruled on these motions on January 25, 1973. First, the Court dismissed Johnson's claims against the unions on grounds of res judicata, holding that the present suit involved the same parties and the same subject matter decided in the first action where summary judgment was granted by Judge Brown. Second, the Court held that Johnson's claims of violation of his civil rights under 42 U.S.C.§ 1981 through 1988, were barred by Tennessee's one-year statute of limitations. Third, the Court found that Johnson did not pursue properly his administrative remedies under the Railway Labor Act. Fourth, the Court held that res judicata barred Johnson's claims against REA on the issue of supervisory training. Fifth, the Court ruled that Johnson's failure to refile a lawsuit within thirty days from February 16, 1972 (the date of dismissal without prejudice) resulted in a failure to comply with the thirty-day filing requirement.

We will deal first with the thirty-day filing requirement since failure to meet it results in a lack of jurisdiction.

Page 528

Goodman v. City Prods. Corp., 425 F.2d 702 (6th Cir. 1970).

Johnson contends that he was not required to file suit within thirty days after dismissal without prejudice. He argues that the only statutory requirement is that he file his original suit within thirty days after receipt of his notice-letter. We disagree. We rely on our decision in Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962), and the decision in McClendon v. North American Rockwell Corp., 2 CCH Employment Prac. Dec., Par. 10,243 (C.D.Cal.1970).

In Bomer, plaintiff's request for increased benefits under the Social Security Act was denied on August 4, 1959. He was advised that he could file a civil action within sixty days, challenging this determination, since there was a statutory procedure for such challenge within that time span. He filed such suit on September 30, 1959. On May 5, 1960, on his motion his case was dismissed without prejudice. Plaintiff later refiled his action on May 1, 1961. The Government moved to dismiss, contending that the plaintiff failed to commence suit within sixty days after notice of the final decision on August 4, 1959. The District Judge granted the Government's motion and dismissed the case. In affirming, Judge Shackelford Miller wrote for a unanimous court:

An action dismissed without prejudice leaves the situation the same as if the suit had never been brought. A. B. Dick Co. v. Marr, 197 F.2d 498, 502, C.A. 2nd; cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680, rehearing denied, 344 U.S. 905, 73 S.Ct. 282, 97 L.Ed. 699; Bryan v. Smith, 174 F.2d 212, 214, C.A. 7th. In the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the time during which the action so dismissed was pending. Humphreys v. United States, 272 F.2d 411, 412, C.A. 9th; Willard v. Wood, 164 U.S. 502, 523, 17 S.Ct. 176, 41 L.Ed. 531; DiSabatino v. Mertz, 82 F.Supp. 248, 249-250, M.D.Pa.

The right of action here sought to be enforced is one created by statute and is limited by the provisions thereof as to the time within which the right must be asserted. Such conditions operate as a condition of liability rather than as a period of limitation and there can be no recovery unless the condition precedent is fulfilled. Zeller v. Folsom, 150 F.Supp. 615, 617, N.D.N.Y.; Coy v. Folsom, 228 F.2d 276, 279-280, C.A. 3rd; Ewing v. Risher, 176 F.2d 641, C.A. 10th; Scott v. Railroad Retirement Board, 227 F.2d 684, 686, C.A. 7th. (304 F.2d at 428, 429)

Additionally, in Kington v. United States, 396 F.2d 9 (6th Cir. 1968), we held that filing of previous actions in state and federal courts, which were voluntarily dismissed, did not toll the two-year statute of limitations of the Federal Tort Claims Act. 28 U.S.C. §...

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