837 F.2d 660 (4th Cir. 1988), 86-1720, Cannon v. Kroger Co.

Docket Nº:86-1720.
Citation:837 F.2d 660
Party Name:Dorothy R. CANNON, Plaintiff-Appellant, v. The KROGER CO., et al., Defendants-Appellees.
Case Date:January 29, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 660

837 F.2d 660 (4th Cir. 1988)

Dorothy R. CANNON, Plaintiff-Appellant,


The KROGER CO., et al., Defendants-Appellees.

No. 86-1720.

United States Court of Appeals, Fourth Circuit

January 29, 1988


The appellant's petition for rehearing and suggestion for rehearing in banc were submitted to this Court. [Prior report: 832 F.2d 303]

On the question of rehearing before the panel, Judge Smalkin, United States District Judge sitting by designation, voted to rehear the case. Judges Hall and Wilkinson voted to deny.

In a requested poll of the Court on the suggestion for rehearing in banc, Judges Widener, Phillips, and Murnaghan voted to rehear the case in banc; and Judges Winter, Russell, Hall, Sprouse, Ervin, Chapman, Wilkinson, and Wilkins voted against in banc rehearing.

As the panel considered the petition for rehearing and is of the opinion that it should be denied, and as a majority of the active circuit judges voted to deny rehearing in banc,

IT IS ORDERED that the petition for rehearing and suggestion for rehearing in banc are denied.

Entered at the direction of Judge Hall.

MURNAGHAN, Circuit Judge, dissenting from the denial of rehearing en banc:

It is indeed unusual, if not extraordinary, 1 for a member of the Fourth Circuit Court of Appeals who disagrees with a panel opinion to continue to fight after rehearing en banc has been denied by the majority of the court. So far as my memory serves, I have had but one occasion to dissent from the denial of a rehearing en banc in over eight years on the court. Now I have a second occasion, because I perceive the court's failure to grant rehearing as a dangerous error that may entrench a mischievous and unjust decision.

Of course, my colleagues may simply conclude that my sight is distorted with the result that I view the issue in this case out of focus. If so, my rejoinder is that there has been a turning of the kaleidoscope for those who voted not to rehear en banc, throwing their collective view of the case askew. That is a serious indictment, and it behooves me to justify it by more than mere platitudes. Therefore, I turn to the facts of the controversy and to the dangerous departure from established principles involved in the majority panel opinion in Cannon v. Kroger Co., 832 F.2d 303 (4th Cir.1987).


The plaintiff is a former employee of the defendant company and member of the defendant

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union. She is engaged in disputes (a) with her one-time employer over steps that led to termination of her employment on September 7, 1985, and (b) with her union for its alleged failure adequately to represent her in her dispute with the employer. The plaintiff, therefore, has brought a typical hybrid action under Sec. 301 of the Labor Management Relations Act (LMRA), as amended, 29 U.S.C. Sec. 185. Such an action, although federal in nature, may be commenced and prosecuted either in federal district court or in state court. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). If it is begun in state court, federal question jurisdiction will permit, but by no means require, removal to a federal district court.

The plaintiff commenced the action in a North Carolina state court of competent jurisdiction on March 7, 1986, six months to the day from the time the cause of action accrued. Before the decision in DelCostello v. International Board of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), courts generally understood that the lacuna in the LMRA caused by the failure of Congress to include a limitations provision should be remedied by reference to the state law of limitations. However, DelCostello, in two consolidated cases initiated in federal district court, made it crystal clear that state statutes were an inappropriate reference point for ascertaining the applicable statute of limitations for hybrid actions. Instead, the six month limitation period found in an analogous federal statute, Sec. 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 160(b), was to be applied.

The six month limitation period was complied with here to the day. In addition to obtaining the statutorily mandated summons from a North Carolina court on March 7, 1986, before the six months had expired, the plaintiff also on that date filed in the North Carolina court an application for leave to defer filing of a complaint for twenty days. In compliance with the North Carolina rules, the plaintiff's initial pleading stated the nature and purpose of the suit. 2 On March 27, 1986 a full-scale complaint was filed by the plaintiff. 3 The panel majority, and now, in effect, those judges who have voted against rehearing en banc, have ruled that, nevertheless, commencement was not timely because of Fed.R.Civ.P. 3, which states: "A civil action is commenced by filing a complaint with the court." The argument of the panel majority comes down to this:

1. A complaint, as the term is used in Fed.R.Civ.P. 3, was not filed within six months of the accrual of the action.

2. The uniformity mandated by the Supreme Court in DelCostello for hybrid

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actions would not be achieved if, under state procedure, a complaint need only be filed in state court six months and twenty days after the action had accrued.

The shift in reference from federal to state complaint thus creeps in sub silentio but fallaciously. 4

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The panel majority's result can only be reached without doing violence to federal procedural rules governing removal, and the principles behind the federal pleading rules, if the requirement that a complaint satisfying Fed.R.Civ.P. 3 must be filed in state court to toll the statute of limitations is a part of the federal substantive labor law governing hybrid actions. The key in this case is, to me, the same as that expressed by Judge Learned Hand in Bomar v. Keyes, 162 F.2d 136, 140-41 (2d Cir.1947), cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947), i.e.: whether "the limitation [on the forms of pleadings and other procedures] is annexed as a condition to the very right of action created." I do not believe that federal pleading rules have been added to the substantive federal law governing hybrid actions. 5 Linguistically, it is difficult to regard a rule of federal procedure as substantive in effect.

The pleading requirements of Rule 3 have simply not been annexed by Congress or by the Supreme Court as a condition to hybrid suits. In discussing the decision to annex a six month statute of limitations, the Court stressed, "when it is necessary for us to borrow a statute of limitations for a federal cause of action, we borrow no more than necessary." West v. Conrail, --- U.S. ----, 107 S.Ct. 1538, 1542, 95 L.Ed.2d 32 (1987). In West, the Supreme Court thus made it clear that in DelCostello it merely borrowed the six month limitations period from an analogous federal labor statute and did not borrow other substantive or procedural requirements, such as, in particular, the short service of process period also contained in that statute.

The Court stated in West, "[t]he only gap in federal law that we intended to fill in DelCostello was the appropriate limitations period. We did not intend to replace any part of the Federal Rules of Civil Procedure with any part of Sec. 10(b) of the

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National Labor Relations Act." 107 S.Ct. at 1541 (emphasis added). DelCostello thus only establishes that an action must commence within six months of accrual. It does not address how the action is to be commenced or prosecuted, or how the statute of limitations may be tolled. West involved a hybrid action initiated and maintained exclusively in federal court; the Court's comments about applying federal procedural rules, such as Fed.R.Civ.P. 4(j) governing service of process, thus cannot be read to require imposition of federal procedural rules when a hybrid action is pending in state court. See West, 107 S.Ct. at 1541-42. We, therefore, must fall back on general principles, on how such procedural problems are normally solved. The principles that should govern the instant case are manifestly the familiar rules governing removal of cases to federal court.


Under federal rules and in the interest of comity, the federal court must show deference to the state court until a removal has occurred. It is clear that a federal court must honor state court rules governing commencement of civil actions when an action is first brought in state court and then removed to federal court, even though the cause of action arises from federal law. Herb v. Pitcairn, 324 U.S. 117, 120, 65 S.Ct. 459, 460, 89 L.Ed. 789 (1945) ("[w]hether any case is pending in the Illinois courts is a question to be determined by Illinois law"). In a clarifying opinion in Herb v. Pitcairn, the Supreme Court held that the statute of limitations contained in the federal statute was satisfied by plaintiff's initial filing in a state court where the jurisdiction was exclusively federal:

Clearly, however, when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process, it is enough to commence the action within the federal statute.

Herb v. Pitcairn, 325 U.S. 77, 79, 65 S.Ct. 954, 955, 89 L.Ed. 1483 (1945) (emphasis added). 6

Rule 81(c) applies by its terms to all removed actions, including federal question cases. Fed.R.Civ.P. 81(c) ("[t]hese rules apply to civil actions removed to the United States district courts from the state courts"); see 28 U.S.C. Sec. 1441(a) ("Any civil action brought in a State court of which the district courts of the United States...

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