McLellan v. Mississippi Power & Light Co.

• Decision Date: 21 April 1976
• Docket Number: No. 73-3226.,73-3226.
• Citation: 526 F.2d 870
• Parties: James H. McLELLAN, Plaintiff-Appellant, v. MISSISSIPPI POWER & LIGHT COMPANY, International Brotherhood of Electrical Workers, Local 605 Electrical Workers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 870

James H. McLELLAN, Plaintiff-Appellant, v.MISSISSIPPI POWER & LIGHT COMPANY, International Brotherhood of Electrical Workers, Local 605 Electrical Workers, Defendants-Appellees.

No. 73-3226.

United States Court of Appeals, Fifth Circuit.

February 5, 1976.

Rehearing Granted April 21, 1976.

W. B. Duggins, Jr., Vicksburg, Miss., Dixon L. Pyles, Jackson, Miss., for plaintiff-appellant.

Sherwood W. Wise, E. Grady Jolly, Jackson, Miss., for defendants-appellees.

Before BROWN, Chief Judge, GODBOLD and RONEY, Circuit Judges.

Rehearing En Banc Granted April 21, 1976.

GODBOLD, Circuit Judge:

Plaintiff-appellant, an employee of Mississippi Power and Light Company(MPL) was discharged on the ground that he violated company policy by filing a voluntary petition in bankruptcy.He sued MPL seeking reinstatement and damages, alleging that the company's action violated a federally protected right.MPL timely filed a motion to dismiss.Prior to the court's acting on the motion, the plaintiff without leave of court filed an amended complaint seeking, pursuant to Rule 15, F.R.Civ.P., to add two new parties, the International Brotherhood of Electrical Workers and the local of that union.The amended complaint added several new jurisdictional bases, including 42 U.S.C. §§ 1981,1983,1985(3)and1988,29U.S.C. § 185, and a state ground as well.It charged that the union was hostile toward plaintiff and failed to fairly represent him in grievance procedures, that the union and MPL conspired to deny his rights under the collective bargaining contract, and that MPL acted under color of state law.Although the amended complaint is inartfully drawn, our view, discussed below, is that it sufficiently alleges class-based discrimination resulting from the conspiracy between the defendants and directed against the class of MPL employees who seek to file in bankruptcy.

The District Court recognized plaintiff's right to amend as against MPL and dismissed the amended complaint for failure to state a claim against that defendant on the ground that no state action was involved.As to the unions, the court held that they were additional parties that could be added only pursuant to Rule 21, F.R.Civ.P., which requires leave of court, and, leave not having been obtained, the amended complaint was dismissed with respect to the unions.

I. MPL AND § 1983.

The District Court correctly held that the amended complaint did not state a cause of action against MPL under § 1983.A private corporate utility company is not brought within the purview of state action merely because it is state regulated.Jackson v. Metropolitan Edison Co.,419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477(1974);Martin v. Pacific Northwest Bell Telephone Co.,441 F.2d 1116(C.A.9), cert. denied,404 U.S. 873, 92 S.Ct. 89, 30 L.Ed.2d 117(1971).See alsoParticular Cleaners, Inc. v. Commonwealth Edison Co.,457 F.2d 189(C.A.7, 1972), andKadlec v. Illinois Bell Telephone Co.,407 F.2d 624(C.A.7), cert. denied,396 U.S. 846, 90 S.Ct. 90, 24 L.Ed.2d 95(1969).The Supreme Court in Jackson examined the state action question with respect to a utility company and stated:

The inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.

419 U.S. at 351, 95 S.Ct. at 453, 42 L.Ed.2d at 484.We see no close nexus between the state and the discharge of McLellan from his employment with MPL.Absent state action, there is no cause of action under § 1983.¹

II.THE UNION DEFENDANTS AND RULES 15AND21.

The District Court dismissed the amended complaint adding the international and local unions as defendants, on the ground that leave of court to file the amendment was required under Rule 21 and had not been obtained.

Under the first sentence of Rule 15(a), "at any time before a responsive pleading is served"a party may "amend his pleading once as a matter of course."Under the second sentence, in other situations a party can amend only by consent of the other party or by leave of court, "and leave shall be freely given when justice so requires."

Rule 21, headed "Misjoinder and Non-Joinder of Parties," provides that "parties may be dropped or added by order of the court on motion of any party or of its own initiative at any state of the action and on such terms as are just."

Which rule takes precedence if a party attempts to drop or add parties by an amended pleading filed before a responsive pleading is served?²May the amending party file his amendment as a matter of course (first sentence of Rule 15) or must he obtain leave (Rule 21)?The district courtcases are divided.³The question has not been squarely decided at the circuit level.The District Court in this case gave precedence to Rule 21.We reach the opposite conclusion.

The usual rationale for applying Rule 21, where any rationale is stated, has been that if there is conflict or ambiguity between Rules 15and21 the latter, as the more specific rule, must control.Professor Wright recommends giving preference to Rule 15(a),6Wright & Miller, Federal Practice and Procedure, § 1479 at 401-402.He points out that the general-versus-specific explanation is an unsatisfactory one.Arguably Rule 15 is the more specific rule, since it sets forth a particular means by which a party attempts to add or drop parties—by amendment to his pleadings—as opposed to Rule 21's more general treatment of the overall subject matter of dropping and adding parties.Id. at 401.

Moore recognizes the existence of the several district court opinions choosing Rule 21 but refers to them as "too restrictive of the specific intent of Rule 15(a)."3A Moore, Federal Practice, § 21.02 at 21-3 n. 2;3 Moore, Federal Practice, § 15.072 at 858.

The conclusion which we reach is presaged by Hines v. Delta Airlines,461 F.2d 576(C.A.5, 1972).There, in passing on an amendment adding Florida Airlines as a party, we did not turn to Rule 21 but to Rule 15 and relied upon the provision in the second sentence of Rule 15(a) that "leave shall be freely given when justice so requires."⁴

Our conclusion is in keeping with the overall philosophy of the Rules.

Rule 15 re-emphasizes and assists in attaining the objective of the rules on pleadings: that pleadings are not an end in themselves, but are only a means to the proper presentation of a case; that at all times they are to assist, not deter, the disposition of litigation on the merits.

3 Moore, Federal Practice, § 15.021 at 813.See alsoConley v. Gibson,355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80, 85(1957).

Professor Wright makes the very practical point that the first part of Rule 15(a) contemplates that the court should not have to be concerned with passing on amendments at an early stage when there is little likelihood of prejudice to other parties.Finally, the cases that require Rule 21 mechanics but apply Rule 15(a) standards, and those in which the court goes through the form of giving precedence to Rule 21 but then acts on its own initiative to permit the amendment,⁵ give indirect support to our views.

The result that we reach is not precluded by the fact that prior to the amendment adding the unions as defendants no federal cause of action had been stated.International Ladies' Garment Workers' Union v. Donnelly Garment Co.,121 F.2d 561(C.A.8, 1941);Finn v. American Fire & Casualty Co.,207 F.2d 113(C.A.5, 1953), cert. denied,347 U.S. 912, 74 S.Ct. 476, 98 L.Ed. 1069(1954);cf.Hackner v. Guaranty Trust Co. of New York,117 F.2d 95(C.A.2), cert. denied,313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520(1941);3 Moore, Federal Practice, § 15.082 at 878, § 15.09 at 945.

III.ALL DEFENDANTS AND§ 1985(3).

(a).Griffin v. Breckenridge.

The Supreme Court in Griffin v. Breckenridge,403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338(1971), discussed at length the meaning of § 1985(3)⁶ and the constitutional power on which that Congressional enactment is based.Griffin involved a § 1985(3) action by black citizens of Mississippi who alleged that defendants, white citizens of Mississippi, had conspired to stop and to physically assault plaintiffs as they traveled on a public highway.The Court initially addressed a question of statutory construction: does § 1985(3) reach conspiracies by private individuals as opposed to conspiracies where the defendants are clothed in state action?⁷Basing its answer on the literal language of the statute, the interpretation given related civil rights statutes in recent years, the complementary roles of the various civil rights statutes, and the legislative history of § 1985(3), the Court concluded that "all indicators ... point unwaveringly to § 1985(3)'s coverage of private conspiracies."403 U.S. at 101, 91 S.Ct. at 1798, 29 L.Ed.2d at 348.

Justice Stewart, writing for the Court, cautioned, however, that not all private conspiracies to interfere with the rights of another fall within § 1985(3).The Congressional purpose was to include only those conspiracies arising from an "invidiously discriminatory motivation":

The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.

403 U.S. at 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348.The Court then specifically noted that, since allegations of racial discrimination were involved, it was unnecessary to determine whether conspiracies motivated by a discriminatory animus other than racial bias fall within § 1985(3).403 U.S. at 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348 n. 9.

With this interpretation of § 1985(3) established, four elements necessary for plaintiffs to state a cause of action under § 1985(3) were set forth:

(1)the defendants did "conspire or go in disguise on the highway

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