563 F.2d 66 (3rd Cir. 1977), 76-1707, Walton v. Eaton Corp.

Docket Nº:76-1707.
Citation:563 F.2d 66
Party Name:Dec. P 7760 Carol J. WALTON, on behalf of herself and on behalf of others similarly situated v. EATON CORPORATION. Carol J. WALTON, Appellant, v. EATON CORPORATION.
Case Date:July 18, 1977
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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563 F.2d 66 (3rd Cir. 1977)

Dec. P 7760

Carol J. WALTON, on behalf of herself and on behalf of

others similarly situated

v.

EATON CORPORATION.

Carol J. WALTON, Appellant,

v.

EATON CORPORATION.

No. 76-1707.

Submitted for Rehearing In Banc under Third Circuit Rule

United States Court of Appeals, Third Circuit

July 18, 1977

12(6) May 12, 1977.

Argued Jan. 10, 1977.

As Amended Aug. 10 and Aug. 12, 1977.

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[Copyrighted Material Omitted]

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Mark B. Segal, Community Legal Services, Inc., Philadelphia, Pa., for appellant.

Andrew S. Price, H. Thomas Felix, II, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa., for appellee.

Argued Jan. 10, 1977.

Before GIBBONS and GARTH, Circuit Judges, and COHEN, [*] District Judge.

Submitted for Rehearing in banc under Third Circuit Rule

12(6) May 12, 1977.

Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

OPINION

GARTH, Circuit Judge.

This appeal arises from consolidated employment discrimination actions which the plaintiff, Mrs. Carol J. Walton, initiated against her former employer, the Eaton Corporation. Mrs. Walton, a black female, alleged that Eaton had discriminated against her because of her race and sex and that it had therefore violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. After a non-jury trial, the district court made detailed findings of fact and

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entered judgment in favor of Eaton. Mrs. Walton appealed.

On appeal, Mrs. Walton argued that the judgment of the district court should be reversed for five reasons. She maintained that the district court erred 1. in refusing to permit a jury trial on her claims under 42 U.S.C. § 1981, 1 2. in determining that her discharge was not discriminatory or a reprisal, 3. in determining that she had not been discriminated against in pay, 4. in denying her motion for class action certification as untimely, and 5. in refusing to admit into evidence the findings of fact and the determination made by the Equal Employment Opportunity Commission.

This appeal was originally heard by a panel of this Court. Prior to the filing of a panel opinion, the Court voted to consider the appeal in banc. 1a We affirm the judgment of the district court. Of the five arguments advanced by Mrs. Walton, only the first the propriety of the district court's refusal to permit a jury trial on her claims under 42 U.S.C. § 1981 1b requires extended discussion.

I.

We have concluded that the district court did not err in refusing to permit a jury trial on Mrs. Walton's claims under 42 U.S.C. § 1981.

A.

Mrs. Walton initiated two separate employment discrimination actions against the defendant-appellee, Eaton Corporation. Both were filed in the District Court for the Eastern District of Pennsylvania.

Mrs. Walton initiated her first employment discrimination action against Eaton (Civil Action 73-322) on February 14, 1973. That suit was brought as a class action in which Mrs. Walton sought to represent all blacks and females who (a) were employed by Eaton at that time, (b) had sought employment with Eaton during the past eight years, or (c) would seek employment with Eaton in the future. Mrs. Walton asserted causes of action under 42 U.S.C. §§ 1981 and 1983, as well as under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She alleged that, because she was black and female, Eaton had discriminated against her in many respects. She claimed that she had been denied equal treatment with respect to pay, promotions, and opportunities to obtain educational benefits. She

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also alleged that she had been harassed on the job and that she was discriminatorily discharged. Finally, she claimed that Eaton had systematically discriminated on the basis of race and sex. She sought declaratory and injunctive relief, an award of back pay for herself and all other members of the classes she sought to represent, attorney's fees, punitive damages, costs, and "such other relief as the Court may deem proper." Her complaint in Civil Action 73-322 expressly waived trial by jury. Eaton filed a timely answer, which did not seek a jury trial, and Mrs. Walton did not demand a jury trial within ten days thereafter. 2

At some point in early 1974 it appears that a second set of attorneys began to represent Mrs. Walton. Apparently not satisfied with the complaint filed by her first attorneys, the new attorneys, rather than seeking to amend the first complaint, initiated a second employment discrimination action (Civil Action No. 74-373) against Eaton on February 14, 1974, exactly one year after the first complaint was filed. In almost all respects Mrs. Walton's second complaint was indistinguishable from her first. Like her first complaint, it asserted causes of action under 42 U.S.C. §§ 1981 and 1983 and Title VII. In addition, the second complaint, like the first, alleged that Mrs. Walton had been harassed, discharged, and denied equal treatment in pay, promotions, and educational opportunities because of her race and sex. However, Mrs. Walton's second complaint did differ from her first in three respects: it was not brought as a class action; it contained a general demand for a trial by jury; and this second complaint, unlike the first, alleged that Mrs. Walton had suffered "emotional and mental injury" as a result of the defendant's action. Consequently the second complaint apparently sought compensatory damages, 3 while the first complaint sought only punitive damages.

On July 3, 1974, the district court, on its own motion, consolidated the two actions. On November 19, 1974, nine months after the second complaint was filed and one year and nine months after the first complaint was filed, Mrs. Walton moved to have her first employment discrimination action (Civil Action 73-322) certified as a class action. The district court denied this motion on December 17, 1974.

B.

At the outset, it is clear that Mrs. Walton had no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant. United States v. Haytian Republic,154 U.S. 118, 123-24, 14 S.Ct. 992, 38 L.Ed. 930 (1894); Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849, 851, 125 Ct.Cl. 297 (1st Cir. 1947) (Clark, J., sitting by designation); 1A J. Moore, Federal Practice P 0.219 at 2601 (2d ed. 1974); P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 1232-33 (2d ed. 1973).

When the district court became aware that the two actions begun by Mrs. Walton were virtually identical, it could have dismissed her second complaint without prejudice or it could have stayed proceedings in the second action until judgment was entered in the first. Id. As Judge Charles E. Clark wrote:

"The pendency of a prior pending action in the same federal court is ground for abatement of the second action." . . . There is no reason why a court should be bothered or a litigant harassed with duplicating lawsuits on the same docket . . . . (Citations omitted.)

Sutcliffe Storage & Warehouse Co. v. United States, supra at 851. Obviously, if the district court had dismissed the second complaint or stayed the second action, Mrs. Walton would have had no right to a jury

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trial. 4 However, instead of following either of those procedures, the district court on its own motion consolidated the two actions.

The district court's decision to consolidate Mrs. Walton's two actions was obviously unobjectionable. When a court learns that two possibly duplicative actions are pending on its docket, consolidation may well be the most administratively efficient procedure. If the second complaint proves to contain some new matters, consolidation unlike dismissal of the second complaint without prejudice or staying the second action will avoid two trials on closely related matters. If, on the other hand, the second complaint proves to contain nothing new, consolidation of the two actions will cause no harm provided that the district court carefully insures that the plaintiff does not use the tactic of filing two substantially identical complaints to expand the procedural rights he would have otherwise enjoyed. In particular, the court must insure that the plaintiff does not use the incorrect procedure of filing duplicative complaints for the purpose of circumventing the rules pertaining to the amendment of complaints, Fed.R.Civ.Proc. 15, and demand for trial by jury, Fed.R.Civ.Proc. 38.

In the instant case, we are convinced that, in considering whether Mrs. Walton waiver her right to trial by jury, the filing of the second complaint and its consolidation with the first must be regarded as an amendment of the first complaint. If Mrs. Walton's second set of attorneys was dissatisfied with the first complaint filed by her previous counsel, the proper procedure for them to have followed would have been to have sought leave of court to amend the first complaint. 5 The adoption of an incorrect procedure as employed in this case should not result in a greater right to trial by jury than would have been available had the correct course of amending the first complaint been followed. In light of the sequence of events described above, it is evident that Mrs. Walton's second complaint must be regarded as no more than an amendment to her first complaint. As such, it is clearly apparent that she waived her right to trial by jury on her claims under 42 U.S.C. § 1981.

C.

It is well established that if the original pleadings in an action effectively waive trial by jury under Fed.R.Civ.Proc. 38(b) and (d), the right to trial by jury of all matters contained in those pleadings cannot be revived by amending the original pleadings. Hostrop v. Board of Junior College...

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