Birge v. Delta Air Lines, Inc.

• Decision Date: 19 November 1984
• Docket Number: Civ. A. No. C82-646A.
• Citation: 597 F. Supp. 448
• Parties: W. Raymond BIRGE, Plaintiff, v. DELTA AIR LINES, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

597 F. Supp. 448

W. Raymond BIRGE, Plaintiff, v. DELTA AIR LINES, INC., Defendant.

Civ. A. No. C82-646A.

United States District Court, N.D. Georgia, Atlanta Division.

November 19, 1984.

Alice M. Montgomery, San Francisco, Cal., for plaintiff.

Gregory L. Riggs, Atlanta, Ga., for defendant.

ORDER

ROBERT H. HALL, District Judge.

Plaintiff brings this Title VII, 42 U.S.C. § 2000e et seq., action alleging that defendant refused to hire him as a pilot because of his race in January of 1973. Presently pending before the court is defendant's motion to dismiss. The asserted ground for dismissal is plaintiff's failure to file a Complaint within 90 days from his receipt of the Equal Employment Opportunity Commission's ("EEOC's") right-to-sue letter as required by 42 U.S.C. § 2000e-5(f)(1).

FACTS

The EEOC issued plaintiff a right-to-sue letter on August 13, 1980, which stated:

IF YOU DECIDE TO SUE, YOU MUST DO SO WITHIN 90 DAYS FROM THE RECEIPT OF THIS NOTICE OF RIGHT TO SUE; OTHERWISE YOUR RIGHT TO SUE IS LOST.

(Exhibit A to motion, ¶ 3) (Capitals in original).¹ According to plaintiff, he received this letter on August 18, 1980.

On November 10, 1980, plaintiff filed his right-to-sue letter with the United States District Court for the Western District of Washington. An affidavit filed with the letter stated that plaintiff had contacted an attorney regarding his case and had been informed that "all of the necessary information" had not been received from the EEOC. The affidavit concluded:

Affiant plaintiff wishes to commence his action against Delta Air Lines by the filing of a copy of the Notice of Right to Sue letter. Plaintiff will file a complaint in this matter as soon as the necessary information is received.

(Id.). No summons or other court process issued; however, defendant was served with the affidavit.

The court assigned a case number to the filings (C80-508T) despite the absence of a Complaint and apparently did not inform plaintiff that the documents were insufficient to "commence" a civil action.²

On October 23, 1981, plaintiff's attorney filed another affidavit similar in content to the November 10, 1980 affidavit, stating that a Complaint would be filed as soon as he received the necessary information from the EEOC. On November 12, 1981, the court on its own motion dismissed the case for failure to prosecute. Upon learning of the dismissal, counsel for plaintiff contacted the Clerk on November 17, 1981, to inquire why the case had been dismissed for lack of prosecution given that plaintiff had just recently filed the "Affidavit of Action." (Exhibit F to plaintiff's memorandum). The Clerk indicated to counsel that she would review the file to see if the dismissal was proper and would also retrieve the Complaint and Summons which had been sent to the court for filing and inadvertantly forwarded to another Clerk's office. (Id.)

After review of the file and before plaintiff filed a motion to vacate, the court on November 18, 1981, vacated its Order of Dismissal on the ground that it was "erroneously issued." The Order did not expressly determine whether the action had "commenced" as a matter of law upon the November 10, 1980, filing of the right-to-sue letter and affidavit.

Plaintiff's Complaint was subsequently filed on November 20, 1981, 459 days following receipt of the right-to-sue letter. Defendant filed a timely Answer and asserted several affirmative defenses, one of which was plaintiff's failure to file a Complaint within the required 90-day period. On March 8, 1982, the case was transferred to this court for venue reasons. On June 27, 1984, the case was transferred from the judge of this court originally assigned to it to the instant judge.

DISCUSSION

A. Timeliness of motion to dismiss

Plaintiff's initial response to defendant's motion to dismiss is couched in terms suggesting that defendant is guilty of laches in asserting the motion or has waived its right to assert the motion and that, therefore, the motion should be denied. Plaintiff seems to contend that, by not seeking dismissal of the Complaint before answering, or by not asserting this issue in its Motion to Dismiss or Transfer due to improper venue (made before the Washington court), defendant has surrendered its right to raise plaintiff's failure to file a timely Complaint as ground for dismissal. The Federal Rules of Civil Procedure and relevant case law establish that plaintiff's contention is without merit.

First, the court considers plaintiff's waiver argument. As for plaintiff's assertion that defendant waived its right to bring the instant motion to dismiss by failing to seek a dismissal of the Complaint before answering, the court finds no procedural rule which requires a defendant to present a defense or objection by motion prior to asserting it in a responsive pleading. Cf. Fed.R.Civ.P. 12(b) (certain defenses may at the option of the pleader be made by motion before filing a responsive pleading). Thus, defendant did not waive its right to move for dismissal on untimeliness grounds by filing its Answer before its motion to dismiss. Accord Rice v. New England College, 676 F.2d 9, 10 (1st Cir. 1982).

As for plaintiff's assertion that defendant waived its right to object to the Complaint on untimeliness grounds by omitting this objection from its original motion to dismiss, the court finds that the procedural rule cited by plaintiff fails to support his argument. Rule 12(h)(1) of the Federal Rules of Civil Procedure sets forth the waiver principle upon which plaintiff is relying:

A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g) ....

Subsection 12(g) in turn provides:

Consolidation of Defenses in Motion .... If a party makes a motion under Rule 12 but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in Rule 12(h)(2) ....

(Emphasis added). Subsection (h)(2) of Rule 12 preserves, among other rights, the right to assert a defense of failure to state a claim upon which relief can be granted:

A defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

Thus, the defenses of lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process are waived if they are omitted from a Rule 12(b) motion; the defense of failure to state a claim upon which relief can be granted is never waived.

The question presented by this case is whether the untimeliness defense raised by defendant, a non-Rule 12 defense, can be waived by failure to consolidate. Because in this circuit, the 90-day filing requirement for commencing a Title VII action is considered akin to a statute of limitations, see, e.g., Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir.1981); Lewis v. Conners Steel Co., 673 F.2d 1240, 1241 n. 2 (11th Cir.1982), the court agrees with plaintiff that the right to assert this defense is subject to waiver. Cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (Title VII requirement of filing a timely charge with the EEOC is akin to a statute of limitations and subject to waiver). However, the court does not find the untimeliness defense waived by failure to consolidate.

Thus far the only waiver principle that has been extended to a statute of limitations defense, a non-Rule 12 defense, is the principle that failure to include the defense in the responsive pleading constitutes a waiver of the right to assert this defense. Fed.R.Civ.P. 12(h)(1)(B). See, e.g., Wagner v. Fawcett Publications, 307 F.2d 409 (7th Cir.1962), cert. denied, 372 U.S. 909, 83 S.Ct. 723, 9 L.Ed.2d 718 (1963). The court declines to extend the "consolidation waiver" principle of Rule 12(h) to the defense raised by defendant's motion (and thus to statute of limitations defenses) given the express language of Rule 12(g) limiting that waiver principle to certain motions permitted by Rule 12 (i.e., motions to dismiss for lack of personal jurisdiction, for improper venue, and for insufficiency of process or service of process). See generally 2A J. Moore and J. Lucas, Moore's Federal Practice ¶ 12.22 (2d ed. 1981). Unlike the failure-to-plead waiver principle, which is drawn not only from Rule 12(h)(1) but also from Rule 8(c), Rule 8(d) and Rule 12(b),³ the consolidation waiver principle is based only on the express language of Rule 12(g). Because defendant had no reason to expect that it was required to consolidate the instant motion with its motion to dismiss for improper venue, the court declines to apply the consolidation waiver principle to the non-Rule 12 defense in question.

The court does not read Zipes v. Trans World Airlines, Inc., supra, as authority supporting the liberal application of the consolidation waiver principle urged by plaintiff. In that case the court merely said that the Title VII administrative filing requirement is subject to waiver without indicating that a broader waiver principle would apply than the one which had been applied in the past to statutes of limitation. 455 U.S. at 393.

Turning to plaintiff's laches argument, the court similarly finds no merit in plaintiff's contentions. Plaintiff appears to contend that, because defendant did not make this motion some time ago, plaintiff has lost the evidence which would justify his conduct. Plaintiff blames defendant for the loss of the purported evidence and suggests that defendant is foreclosed from making this motion for that reason.

Plaintiff overlooks one important fact in...