Archuleta v. Duffy's Inc.

• Decision Date: 11 January 1973
• Docket Number: No. 72-1307.,72-1307.
• Citation: 471 F.2d 33
• Parties: Abelino ARCHULETA, Plaintiff-Appellee, v. DUFFY'S INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

471 F.2d 33 (1973)

Abelino ARCHULETA, Plaintiff-Appellee, v. DUFFY'S INC., Defendant-Appellant.

No. 72-1307.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted September 22, 1972.

Decided January 11, 1973.

Rehearing Denied February 15, 1973.

Ralph F. Crandell, of Drake, Crandell & Batchelder, Denver, Colo., for appellant.

Jesse Manzanares, of Auer & Manzanares, Denver, Colo. (Lawrence A. Wright, Jr., of Snead & Wright, Denver, Colo., with him on the brief), for appellee.

Before LEWIS, Chief Judge and McWILLIAMS and DOYLE, Circuit Judges.

LEWIS, Chief Judge.

This is an interlocutory appeal procedurally authorized under 28 U.S.C. § 1292(b) and taken by Duffy's Inc. from an order of the District Court for the District of Colorado denying a motion by Duffy's Inc. to dismiss an amended complaint filed by the plaintiff. Archuleta sought relief under the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The present issue is limited to a consideration of whether plaintiff's claim is barred under the Act by the applicable statute of limitations.¹ The trial court held that the cited statute did not bar plaintiff's claim under the undisputed circumstances and facts of the case.

On November 5, 1969 plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission against his former employer, Duffy's Inc., alleging denial of employment rights under Title VII of the Civil Rights Act of 1964. The complaint, styled Archuleta v. Duffy's Inc., was processed before the Colorado Civil Rights Commission and the E.E.O.C. without satisfactory accord. On August 2, 1971 the E.E.O.C. mailed to Archuleta (with a copy mailed to Duffy's Inc.) a letter advising plaintiff that he was entitled to institute a civil action in the appropriate federal district within thirty days after receipt of the letter. The letter was received on August 4 and it is undisputed that the statutory period for filing such action expired no later than September 3, 1971.

On August 31, 1971 plaintiff filed a complaint in the district court naming as the defendant Denver Pop Company, a Colorado corporation, formerly known as and d/b/a Duffy's Inc. A copy of this complaint was served on Duffy's Inc. on September 9.² On September 23 plaintiff filed an amended complaint naming Duffy's Inc. as the defendant and a copy of this complaint was served on Duffy's Inc. on September 27.

Finding that Duffy's Inc. had suffered no actual prejudice from the procedural mix-up and noting the mandate of the Supreme Court in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679, to the effect that procedural aspects of the Act should be liberally construed to further the general purposes of the Act, the trial court held that the few days time lag here present should not be applied to defeat plaintiff's action. The trial court also held that the designation of Denver Pop Company as defendant in the action was but a misnomer and that in any event Rule 15(c), Fed.R.Civ.P. allowed the September 23 amended complaint to relate back under the rule's mistaken identity of the proper party provision.³ We are constrained to hold that the trial court's reasoning is faulty in each of its aspects.

No justifiable interpretation of Love v. Pullman, supra, can support a judicial extension of the applicable thirty-day time limit set by Congress for the filing of the permissive judicial action under the Civil Rights Act of 1964. Although the limitation may be harsh and, as noted, has now been extended by statutory amendment, still the bar remains applicable in the instant case. Goodman v. City Products, Corp., Ben Franklin Div., 6 Cir., 425 F.2d 702. So, too, Love v. Pullman, supra, was not concerned with the traditional judicial process and that case's mandate of procedural flexibility at the administrative level does not and, in our opinion, should not carry over as applicable beyond that level. We hold therefore that "a few days" beyond the thirty-day limitation of the statute is not a circumstance properly allowing judicial yielding of the limitation for purposes peculiar to the Civil Rights Act.

Nor can we agree that the naming of the defendant as Denver Pop Company constituted a simple misnomer. The defendant was not misdescribed but was deliberately, although mistakenly, sued. An entity different from the one named and appearing during the administrative process was made a party. Although this court is committed to the general proposition that it will not allow technicalities to defeat the proper administration of justice, e. g., Travelers Indemnity Co. v. United States for Use of Construction Specialties Co., 10 Cir., 382 F.2d 103, and will allow misnomers to be amended and relate back as a matter of course, Wynne v. United States for Use of Mid-States Waterproofing Co., 10 Cir., 382 F.2d 699, the court is equally committed to the necessity of distinguishing between misnomers and substitution of parties. Graves v. General Insurance Corp., 10 Cir., 412 F.2d 583. The trial court has here allowed a substitution of parties by amendment. Such amendment can relate back to the date the complaint was filed only if the provisions of Rule 15(c) are met.

Plaintiff has not by amendment changed the factual content of his complaint and has thus met the compulsion of the first sentence of Rule 15(c). And the trial court correctly found that defendant has suffered no prejudice in fact, a partial requirement under the rule's second sentence.

However, this latter sentence further requires that the party added "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." This has been said to be analogous to an estoppel test, Professors Wright and Miller summing it up as:

Thus, when plaintiff merely misdescribes defendant and serves the party really intended to be named in the complaint, that party certainly has knowledge of the misnomer and the quoted portion of the rule has been satisfied. Similarly, when plaintiff names an incorrect party but serves the person attempted to be sued, the latter is considered to have notice of plaintiff\'s mistake and the amendment will qualify under Rule 15(c). In other contexts, the courts probably will apply something akin to a reasonable man test to determine whether the party "should have known" he was the one intended to be sued. 6 Wright & Miller, Federal Practice and Procedure, § 1498, at 515 (footnotes omitted).

Duffy's Inc. was served on September 9 with a copy of the complaint filed August 31 against Denver Pop Company and thus Duffy's Inc. was subjected to the action on and after September 9. However, the action was then stale under the statutory limitation and must remain stale unless it can be said that the participation of Duffy's Inc. in the administrative proceedings, its knowledge of the underlying facts concerning plaintiff's claim, and the receipt of the E.E. O.C. letter authorizing the filing of an action puts Duffy's Inc. in a position, per se, of "should have known" that an action was filed during the thirty-day period. We cannot say that knowledge of the existence of a potential action constitutes, per se, reasonable grounds for notice of the institution of an action. The Ninth Circuit has reached a similar conclusion stating:

In our opinion, "action," as used in Rule 15(c), means a lawsuit, and not the incident giving rise to a lawsuit.

The relevant words are "notice of the institution of the action." A lawsuit is instituted; an incident is not. Craig v. United States, 413 F.2d 854, 858, cert. denied, 396 U.S. 987, 90 S.Ct. 483, 24 L.Ed.2d 451.

The trial court erred in allowing plaintiff's amended complaint to be filed. The case is remanded with instructions to dismiss the complaint.

WILLIAM E. DOYLE, Circuit Judge (dissenting):

I respectfully dissent. In my opinion the trial judge correctly rejected the contention that the court had not gained jurisdiction over the case within the 30-day limit provided by § 2000e.

While I do not disagree with the facts as stated in the majority opinion, I see, in view of the position I take, a need for extending the fact statement briefly. There is need to emphasize, for example, that Denver Pop Company, the concern named in the original complaint, and Duffy's Inc. did have some relationship and that Duffy's had actual notice of the filing of the action.

On October 15, 1969, the Domenico Company, a Colorado corporation, entered into an agreement with Duffy's Inc., whereby Domenico Company undertook to purchase part of the assets of Duffy's Inc. At the same time, Duffy's Inc. agreed to change its name on the date of the closing. Thereafter, on October 20, 1969, the Domenico Company changed its name to Duffy's Inc.; on October 21, the Colorado Secretary of State issued a certificate of amendment so indicating the change. Also, on October 20, 1969, the old Duffy's Inc. changed its name to Denver Pop Company and an appropriate registration of the name change was made with the Colorado Secretary of State.

The name mix-up occurred because the attorney for plaintiff obtained misleading information from the Colorado Secretary of State's office. Thus, the caption designated the defendant as Denver Pop Company, a Colorado corporation, formerly known as and d/b/a Duffy's Inc. This complaint was served on the right party, that is, Malcolm Domenico, at 3111 Larimer Street, and this was indeed the habitat of Duffy's Inc., as the Domenico Company had come to be known. Further, this was the identical company that had employed the plaintiff.

As of the time of the original service, Duffy's Inc., formerly Domenico Company, knew or should have known that Archuleta had been an employee of Duffy's Inc., whose employment had been terminated. After all, this employee had filed a complaint with the EEOC against Duffy's Inc. and that agency had advised the employee by letter, copies...