Drake v. Southwestern Bell Telephone Co., 76-1842

• Decision Date: 04 May 1977
• Docket Number: No. 76-1842,76-1842
• Citation: 553 F.2d 1185
• Parties: 15 Fair Empl.Prac.Cas. 577, 14 Empl. Prac. Dec. P 7571 Larry DRAKE, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1185

553 F.2d 1185

15 Fair Empl.Prac.Cas. 577, 14 Empl. Prac.

Dec. P 7571

Larry DRAKE, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.

No. 76-1842.

United States Court of Appeals Eighth Circuit.

Submitted March 17, 1977.

Decided May 4, 1977.

James A. Greenblatt (argued), Clayton, Mo., on brief, for appellant.

Thad Hollie, Jr. (argued), John D. Rahoy and Leo E. Eickhoff, Jr., St. Louis, Mo., on brief, for appellee.

Before BRIGHT and ROSS, Circuit Judges, and URBOM, Chief District Judge. ^*

BRIGHT, Circuit Judge.

Appellant Larry Drake, a black person, brings this appeal from an order dismissing his complaint without prejudice for want of prosecution. The complaint, filed October 24, 1975, alleged that Drake's employer, Southwestern Bell Telephone Company, unlawfully discriminated against Drake by discharging him on April 5, 1972, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Because Drake was otherwise reinstated with back pay as a result of an arbitration award, Drake, in this lawsuit, sought $10,000 in general damages for humiliation, degradation, and anxiety; certain "special" damages attributable to specific family expenses incurred during the dismissal period; and punitive damages in the amount of $250,000. Before the dismissal of the complaint on August 30, 1976, the district court on December 2, 1975, on motion of Southwestern Bell, had dismissed the allegations of the complaint asserting a claim under § 1981 on grounds that such action was barred by Missouri's two-year statute of limitations, and, consistent with that determination, had struck the prayer for general, special, and punitive damages.

In this appeal, Drake seeks to set aside as error the December 2, 1975, order which struck the § 1981 claim as untimely and requests the reinstatement of the § 1981 allegations. For reasons stated below, we determine that the appeal in this case brings before us the interlocutory order relating to the statute of limitations defense, and we hold on the merits that the original complaint should be reinstated.

I.

We consider first the scope of our review on this appeal. An order dismissing a cause of action for want of prosecution, whether with or without prejudice, terminates the action and, therefore, constitutes a final and appealable order. Allied Air Freight, Inc. v. Pan American Airways, Inc.,393 F.2d 441 (2d Cir.), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968); Rinieri v. News Syndicate Co., Inc., 385 F.2d 818, 821 (2d Cir. 1967); 9 Wright & Miller, Federal Practice and Procedure: Civil, § 2376 n.69 (1971).

Although generally interlocutory orders merge with a final order and as such may be reviewed on appeal from a final order dismissing a case for want of prosecution, Allied Air Freight, Inc., supra, 393 F.2d at 444, there exists authority to the contrary. At least one court has held that the scope of appellate review in such cases is confined solely to whether the trial court abused its discretion in granting such dismissal. Marshall v. Sielaff, 492 F.2d 917 (3d Cir. 1974).

In Marshall, the appellant-plaintiff refused to proceed with the trial of a civil rights damage action without three prisoner-witnesses which the trial court by interlocutory order had refused to summon into court. The trial court thereupon dismissed the case for want of prosecution.

In refusing to consider the propriety of the interlocutory ruling, the court said To adjudicate the issue of the (denial of the interlocutory) writ under the circumstances of this case would undermine the "basic and persisting policy against piecemeal appeals." If a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain review of the judge's interlocutory decision, the policy against piecemeal litigation and review would be severely weakened. This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C.A. § 1291. (Marshall, supra, 492 F.2d at 919 (citations omitted).)

Here, to the contrary, the interlocutory order striking Drake's § 1981 claim and his prayer for general, special, and punitive damages left Drake with only a Title VII cause of action and under the particular circumstances only a single potential claim for relief, i. e., attorneys' fees for prosecuting the Title VII action. ¹ Thus, although the interlocutory order did not by its language dispose of the entire case, it did deprive Drake of any meaningful relief. Under these circumstances, the interests of efficient judicial administration require review of the interlocutory order dismissing portions of Drake's complaint as well as the final order.

II.

We turn to a consideration of the appropriate Missouri statute of limitations. Appellant asserts that Missouri's five-year statute of limitations applies to Drake's § 1981 claim, that five years have not elapsed since the 1972 discharge, and, therefore, the trial court erred in dismissing the § 1981 claim and in striking the prayer for general, special, and punitive damages. The five-year statute reads in relevant part:

Within five years:

(1) All actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110, and except upon judgments or decrees of a court of record, and except where a different time is herein limited;

(2) An action upon a liability created by a statute other than a penalty or forfeiture;

(4) An action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated (.)

(Mo.Ann.Stat. § 516.120)

In Greene v. Carter Carburetor Co., 532 F.2d 125 (8th Cir. 1976), plaintiff brought an action under § 1981 complaining that her discharge more than five years earlier was the result of racial discrimination. We said that the trial court "correctly determined that (the § 1981 count) was barred by § 516.120 R.S.Mo. (1969)." Id. at 127. See Green v. McDonnell Douglas Corp., 463 F.2d 337, 340 (8th Cir. 1972), rev'd on other grounds, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Wright v. Stone Container Corp., 386 F.Supp. 890 (E.D.Mo.1974). Both of our decisions apply the five-year statute to employment discrimination claims under § 1981.

In its motion before the district court and on this appeal, Southwestern Bell argues that the application of the five-year statute of limitations in Greene, Green, and Wright is not dispositive of the issue because in those cases a time period of more than five years had elapsed preceding the bringing of a § 1981 action for violation of civil rights. Thus, argues appellee, those courts were not called upon to consider whether the shorter two-year Missouri limitation period, contained in Mo.Ann.Stat. § 516.140, is the "most appropriate" limitation period, and, therefore, to be applied under the doctrine enunciated in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). ²

The two-year statute relied upon by appellee reads:

Within two years: An action for libel, slander, assault, battery, false imprisonment or criminal conversation. All actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of, and an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation or liquidated damages by reason of the nonpayment of minimum wages or overtime compensation, and for the recovery of any amount under and by virtue of the provisions of the Fair Labor Standards Act of 1938 and amendments thereto, said act being an act of congress, shall be brought within two years after the cause accrued. (Mo.Ann.Stat. § 516.140 (emphasis added).)

Appellant argues that because plaintiff's action under 42 U.S.C. § 1981 is an action for back pay, or unpaid wages, the foregoing two-year statute applies, particularly the above-emphasized portion.

The statutory history indicates that in 1945 the Missouri legislature added the part of the last sentence relating to actions by employees. Mo.Ann.Stat. § 516.140, Historical Note. Clearly that amendment refers only to the special causes of action given to employees under the Fair Labor Standards Act of 1938 and subsequent amendments.

Appellant's action does not rest upon the Fair Labor Standards Act nor can it be characterized as an action for payment of unpaid minimum wages or unpaid overtime compensation. Thus, the final portion of the statute does not apply and the two-year statute becomes immaterial in this action.

The five-year Missouri statute, § 516.120 Mo.Ann.Stat., however, is analogous and applicable because a proceeding under § 1981 represents an action upon a liability implied, subd. 1; or an "action upon a liability created by a statute," subd. 2; or an action for "injury to the person or rights of another, not arising on contract and not herein otherwise enumerated," subd. 4. We need not decide which of these subdivisions covers this statutory action, but the cases indicate that a § 1981 action properly fits the description of one or more subdivisions of § 516.120. See Greene, Green, and Wright, supra. See also Chambers v. Omaha Public School Dist., 536 F.2d 222, 227-28 (8th Cir. 1976); Reed v. Hutto, 486 F.2d 534, 537 n.2 (8th Cir. 1973); ...