Gutierrez v. El Paso Community Action Program, 71-2269 Summary Calendar.

Decision Date28 March 1972
Docket NumberNo. 71-2269 Summary Calendar.,71-2269 Summary Calendar.
Citation462 F.2d 121
PartiesFernando R. GUTIERREZ, Plaintiff-Appellant, v. EL PASO COMMUNITY ACTION PROGRAM (Project Bravo, Inc.), Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Fernando Gutierrez, pro se, El Paso, Tex.

Colbert Coldwell, Wellington Y. Chew, El Paso, Tex., for defendant-appellee.

Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:

The District Court dismissed this case for failure to state a claim of discriminatory discharge under the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e, which is alleged in the complaint to give the Federal court jurisdiction.

An opportunity to amend should have been accorded, so dismissal with prejudice was unwarranted. Whether plaintiff can state a claim under this statute, we do not determine or even faintly intimate.

The fact that the Judge considered affidavits from both sides does not save the order of dismissal with prejudice. Under Rule 12(b) such affidavits at best might bring into play Rule 56, Federal Rules of Civil Procedure, Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co., 5 Cir. 1967, 373 F.2d 493, but the 10 day notice that it would be treated as a motion for summary judgment and the opportunity to furnish additional material were not given. The case could not be decided in this way at this stage.

Reversed and remanded.

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9 cases
  • Nadeau v. State
    • United States
    • Maine Supreme Court
    • December 1, 1978
    ...(M.R.Civ.P. 56(c)) so that they will have the opportunity to furnish the court with additional materials. Gutierrez v. El Paso Community Action Program, 462 F.2d 121 (5th Cir. 1972). The record provides no basis for concluding that Nadeau either knew or ever received notice that the court w......
  • Jones v. Automobile Ins. Co. of Hartford, Conn.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 4, 1990
    ...judgment by the district court."). See also Scott v. Courtesy Inns, Inc., 472 F.2d 563 (5th Cir.1973); Gutierrez v. El Paso Community Action Program, 462 F.2d 121 (5th Cir.1972).The ten-day notice requirement of Rule 56 is not enforced as strictly in all of the other circuits. See, e.g., Mo......
  • Capodilupo v. Petringa
    • United States
    • Appeals Court of Massachusetts
    • November 28, 1977
    ...v. Corporacion de Renovacion Urbana Y Vivienda De Puerto Rico, 453 F.2d 794, 797-798 (1st Cir. 1972); Gutierrez v. El Paso Community Action Program, 462 F.2d 121 (5th Cir. 1972); Scott v. Courtesy Inns, Inc., 472 F.2d 563 (5th Cir. 1973) cases holding that a party is entitled to notice that......
  • Davis v. Howard
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 17, 1977
    ...for preliminary injunction without a later hearing. The question presented is not novel in this circuit. In Gutierrez v. El Paso Community Action Program, 462 F.2d 121 (5 Cir. 1972), where the district judge considered affidavits from both sides in ruling on a 12(b)(6) motion, the court cit......
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