Lindsey v. Dayton-Hudson Corp.

• Decision Date: 08 March 1979
• Docket Number: DAYTON-HUDSON,No. 77-1051,77-1051
• Citation: 592 F.2d 1118
• Parties: Michael LINDSEY, Plaintiff-Appellant, v.CORPORATION, d/b/a Target Stores, a Minnesota Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1118

592 F.2d 1118

Michael LINDSEY, Plaintiff-Appellant, v. DAYTON-HUDSON CORPORATION, d/b/a Target Stores, a Minnesota Corporation, Defendant-Appellee.

No. 77-1051.

United States Court of Appeals, Tenth Circuit.

Argued May 10, 1978.

Decided Feb. 5, 1979.

Rehearing Denied March 8, 1979.

William W. Choate, Oklahoma City, Okl. (William D. Graves, Oklahoma City, Okl., with him on the brief), for plaintiff-appellant.

A. T. Elder, Jr., Oklahoma City, Okl. (Mort G. Welch, Oklahoma City, Okl., with him on the brief), of Cooper, Stewart, Elder & Abowitz, Oklahoma City, Okl., for defendant-appellee.

Before McWILLIAMS, BREITENSTEIN and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This appeal arises out of a suit brought by Michael Lindsey (Lindsey) against Dayton-Hudson Corporation d/b/a Target Stores (Target), in which summary judgment was rendered against Lindsey on all counts of the complaint.

The complaint alleged five causes of action: False imprisonment, malicious prosecution, assault and battery, slander, and civil rights violations under 42 U.S.C. § 1983. In his reply brief on appeal Lindsey has conceded that Target's position with respect to the civil rights count is correct; that issue will not be discussed in this opinion. Therefore, jurisdiction as to all counts to be considered in this appeal is based entirely upon diversity of citizenship. The incidents occurred in Oklahoma, and that state's law is controlling.

The trial court granted summary judgment on the causes to be considered on appeal on the basis that Lindsey had not complied with the applicable statute of limitations. Target also supports dismissal of the malicious prosecution count on the alternative ground that Lindsey has not shown that the criminal action which forms the basis of the complaint was brought by Target. Various contentions related to the statute of limitations question are argued by appellant. Appellant also argues that summary judgment was improper, and that he should have been permitted to maintain this action under a fictitious name.

The incident giving rise to this litigation began on April 22, 1975, in Target's store in Oklahoma City. Michael Thompson, a security specialist for Target, arrested Lindsey for allegedly attempting to persuade Thompson to engage in a homosexual act in the men's rest room. Lindsey was placed in the custody of other Target employees, read his Miranda warnings, questioned and photographed. The police were then called, took Lindsey into custody and held him from approximately 6:00 p. m. on April 22 until 9:00 a. m. the following day. Subsequently Lindsey was charged in a state criminal action with offering to engage in an act of lewdness. He was tried to a jury and acquitted on September 10, 1975. This civil action was filed April 22, 1976, admittedly the last day permitted by the Oklahoma one-year statute of limitations applicable to the false imprisonment, assault and battery, and slander counts of the complaint.

Lindsey's counsel attempted to file the complaint under the pseudonym "John Doe" without revealing Lindsey's true name. According to his affidavit he also presented a summons and praecipe for summons at the same time. The clerk refused to accept the filing on grounds that it was not proper to sue using only a pseudonym. Apparently after some debate on the matter a ruling by the judge was obtained that plaintiff had to use his real name. The ruling was dated April 22, and it appears undisputed that the complaint was accepted for filing on that day after the name "John Doe" was lined out and Lindsey's real name inserted. Since the only praecipe and summons in the record are dated April 29, 1976, apparently the original praecipe and summons offered to the clerk were not filed on the earlier date. It appears that plaintiff's counsel left the city on April 23 and did not return to file these documents in Lindsey's real name until April 29.

A motion for summary judgment was made by Target shortly after the filing, defending on the statute of limitations issue and other grounds. This motion was denied by the court. After some discovery another motion was made by Target raising essentially the same points, supported by additional materials, including a full transcript of the criminal trial. This motion was granted, the court finding that Lindsey had not complied with the Oklahoma statute of limitations applicable to the four counts involved in this appeal.

I

We first treat appellant's argument that summary judgment was improper. Lindsey contends the complaint did not reveal on its face a failure to comply with the statute of limitations. But that is not controlling, because Fed.R.Civ.P. 56(e), governing summary judgment motions, permits the moving party to present matters outside the pleadings. Even if the complaint was filed in time, the holding of the court was that the summons (which shows a date outside the statute of limitations) is an integral part of the statute of limitations and must be issued on or before April 22.

We see no merit in the contentions that summary judgment was improper because a motion to dismiss, or an earlier motion for summary judgment, which raised the same issues, had been denied. Fed.R.Civ.P. 12(b) permits a motion to dismiss to be treated as one for summary judgment when matters outside the pleadings are presented to and not excluded by the court. Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972). A second motion for summary judgment is proper after a prior motion is dismissed, if supported by new material. Kirby v. P. R. Mallory & Co., Inc., 489 F.2d 904 (7th Cir. 1973); 6 Moore's Federal Practice P 56.14(2), at 56-363 to 56-366 (2d ed. 1948 Supp.1976). While arguably there was no new material presented to support the second motion on the statute of limitations issue, these were not the only issues presented in the motions. When the second motion was considered there was a significantly expanded record, including the full transcript of the state criminal case. Until final decree the court always retains jurisdiction to modify or rescind a prior interlocutory order. Fed.R.Civ.P. 54(b). Although the court might properly refuse to consider a second motion, we will not require a judge to perpetuate error or take a more roundabout way to arrive at an ultimately necessary judgment by refusing him the right to entertain a second motion for summary judgment after he has ruled once the other way. See Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970); Burns v. Massachusetts Institute of Technology, 394 F.2d 416 (1st Cir. 1968).

II

The affidavit of Lindsey's counsel stated a praecipe and summons were tendered at the time the John Doe complaint was filed. The refusal to accept the John Doe complaint, summons and praecipe, is alleged to be a quashing of the summons making applicable Okla.Stat.Ann. tit. 12, § 154.5 (West Supp.1978), which permits issuance of a new summons following quashing of the original summons even though the statute of limitations may have expired. Neither side cites any authority for their contentions that this refusal to accept the summons is or is not a quashing thereof, and we have found none.

We believe appellee is correct in arguing that to quash a summons it first must be issued. We do not regard the clerk's refusal to accept for filing a tendered summons as the quashing thereof by any duly constituted authority. Whether or not the action of the clerk or the judge was correct with respect to the John Doe complaint and summons, it was the responsibility of the plaintiff to persist and obtain a court ruling which he could follow or appeal. In fact it appears that the judge made a ruling on the day of the filing, and the plaintiff complied partially by filing his complaint. If the summons is an integral part of the statute of limitations, which we discuss below, and time was of the essence, then it was plaintiff's duty to put the summons in proper form so that it would be issued in time. See Baker v. Sisk, 1 F.R.D. 232 (E.D.Okl.1938). For these reasons the tender of the John Doe summons on April 22 has no special significance in this case.

III

The most crucial issue in this appeal is whether the action was filed in time. This case is Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), reincarnated. Okla.Stat.Ann. tit. 12, § 95 (West Supp.1978), imposes a one-year statute of limitations for slander, assault, battery, malicious prosecution or false imprisonment, all involved here. Okla.Stat.Ann. tit. 12 (West Supp.1978), § 97 provides:

An action shall be deemed commenced, within the meaning of this article, as to each defendant, At the date of the summons which is served on him, or on a codefendant, who is a joint contractor or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, When the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons, or if service is sought to be procured by mailing, by a receipt of certified mail containing summons, within sixty (60) days. (Emphasis supplied.)

The Kansas statute involved in Ragan is substantially identical, ¹ except for additions not relevant to this case added in 1969. Indeed it is admitted that the Oklahoma Act was derived from the Kansas law.

The Oklahoma courts have held that § 97 is an integral part of the statute of limitations. See Walker v. Armco Steel Corp., 452 F.Supp. 243, 245 (W.D.Okl.1978); Kile v. Cotner, 415 P.2d 961 (Okl.1966); Kelly-Goodfellow Shoe Co. v. Todd, 5 Okl. 360, 49 P. 53 (1897). The language of the section limits its application to "this article,"...