Washington v. TG & Y. STORES CO.

• Decision Date: 09 April 1971
• Docket Number: Civ. A. No. 15761.
• Citation: 324 F. Supp. 849
• Parties: Katie Mae WASHINGTON, Individually and on behalf of all others similarly situated, v. T. G. & Y. STORES CO., d/b/a T. G. & Y. Family Center, Shreveport, Louisiana.
• Court: U.S. District Court — Western District of Louisiana

324 F. Supp. 849

Katie Mae WASHINGTON, Individually and on behalf of all others similarly situated, v. T. G. & Y. STORES CO., d/b/a T. G. & Y. Family Center, Shreveport, Louisiana.

Civ. A. No. 15761.

United States District Court, W. D. Louisiana, Shreveport Division.

March 5, 1971.

Supplemental Opinion April 9, 1971.

COPYRIGHT MATERIAL OMITTED

Jesse N. Stone, Jr., Shreveport, La., for plaintiff.

Stanley P. Hebert and Russell Specter, Equal Employment Opportunity Commission, Washington, D. C., for amicus curiae.

Cecil E. Ramey, Jr., and Thomas J. Wyatt, Shreveport, La., for defendant.

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.¹

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.

FACTS

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,² a Negro female, in this action alleges that she was fired September 10, 1969, in violation of Title VII of the Civil Rights Act of 1964. October 20, 1969, complainant filed "charges" against her former employer with the Equal Employment Opportunity Commission (EEOC). By letter dated May 12, 1970, the EEOC informed complainant that it had been unable to secure a voluntary settlement and that she was entitled to institute a civil action within thirty days.³ June 10, 1970, complainant filed suit naming "T. G. & Y. Family Center" as defendant, and on June 19, 1970, service was effected by "drop service" on C. T. Corporation.

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 without legal capacity to be sued.⁴ The proper party defendant is T. G. & Y. Stores Co. Defendant maintains that our ex parte order of August 3, 1970, allowing "joining" of T. G. & Y. Stores Co. as a party defendant was improper. They therefore move to dismiss because (1) complainant sued a trade name having no legal capacity, (2) there was insufficient process under Rule 4(b) since the true party defendant was not named, (3) that there was insufficiency of service due to the fact that C. T. Corporation was not agent for service for "Family Center" but rather was authorized service agent for "Stores Co." and service on "Stores Co." was not timely, and (4) that "Family Center" is not an "employer" within the meaning of Title VII since it has no legal capacity.

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:

"Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him."

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:

"Defendants initially find significance in the fact that the original complaint in the * * * action failed to name the Company as a party defendant, naming instead only the Building. In response to the filing of the original complaint, the Building filed an answer (through the general counsel of the Company) in which it denied that it was a legal entity capable of being sued, and it later moved to dismiss the action on this ground. The district court thereupon permitted plaintiffs to amend their complaint by adding the Company as a party defendant, and the court allowed the amendment to relate back to the date of the filing of the original complaint.

"Defendants, however, continue to assert that naming the Building as the defendant in the original complaint was an error of monumental proportions. The Building, we are told, is neither a person, a corporation, or a partnership. * * * Consequently, defendants conclude, the filing of a complaint against the Building could not invoke the jurisdiction of the district court and thereby toll the statute of limitations.

"This argument must be rejected, for even if we assume the defendants are correct in their assessment of Texas law, lack of capacity under Rule 17(b) their conclusion concerning the significance of Texas law in the present case is wide of the mark. In our view the problem presented by the misnomer in the original complaint was not one of capacity to be sued, but merely one of mistaken identity within the purview of Federal Rule 15(c).

"Under the provisions of Rule 15(c), the amended complaint in the * * * action must be held to relate back to the date of the filing ⁵ of the original complaint (1) if the claim asserted in the amended complaint `arose out of the conduct, transaction, or occurrence' set forth in the original complaint, (2) if at the time of the filing of the original complaint the Company `received such notice of the institution of the action' that it would `not be prejudiced in maintaining its defense on the merits,' and (3) if at the time of the filing of the original complaint the Company `knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against' the Company.

* * * * * *

"In the circumstances of this case, we are compelled to conclude that the district court's order allowing the plaintiffs to amend their complaint by adding the Company as a party defendant was clearly warranted by Rule 15(c)." (Emphasis added.) Montalvo et al. v. Tower Life Building et al., 426 F.2d 1135, 1146-1147 (5th Cir. 1970)

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."⁶

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),⁷ specifically provides inter alia for amendment of an unsworn charge:

"(b) Notwithstanding the provisions of paragraph (a) of this section, a charge is deemed filed when the Commission receives from the person aggrieved a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to swear to the charge, or to clarify and amplify allegations made therein, and such amendments relate back to the original filing date. However, an amendment alleging additional acts constituting unlawful employment practices not directly related to or growing out of the subject matter of the original charge will be permitted only where at the date of amendment the allegation could have been timely filed as a separate charge. 31 F.R. 10269, July 29, 1966"

We find...