Montgomery v. U.S. Postal Service, 88-2605

• Decision Date: 17 March 1989
• Docket Number: No. 88-2605,88-2605
• Citation: 867 F.2d 900
• Parties: 49 Empl. Prac. Dec. P 38,822, 14 Fed.R.Serv.3d 288 Eulas MONTGOMERY, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 900

867 F.2d 900

49 Empl. Prac. Dec. P 38,822, 14 Fed.R.Serv.3d 288

Eulas MONTGOMERY, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 88-2605

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 17, 1989.

David G. Peake, Houston, Tex., for plaintiff-appellant.

Sarah R. Tunnell, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., Lori Dym, Office of Labor Law, U.S. Postal Service, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Eulas Montgomery (Montgomery) challenges the district court's dismissal of his Title VII claim alleging that the United States Postal Service (Postal Service) unlawfully terminated his employment for racial reasons. The district court found that Montgomery failed to satisfy the notice requirements of Fed.R.Civ.P. 15(c), which would allow his proffered amended complaint naming the proper party defendant--the Postmaster General--to relate back to the date of his original complaint filed within the statutory limitations period. We find that a fact question remains on whether the proper party defendant received actual notice within the limitations period, and therefore whether Montgomery's amended complaint would relate back under Rule 15(c). Accordingly, we reverse the district court's summary dismissal of the Title VII claim.

Facts and Proceedings Below

Montgomery was discharged from his employment with the Postal Service on September 9, 1985. He sought administrative review of his dismissal from the Merit System Protection Board (MSPB), claiming that his termination was racially motivated. The MSPB upheld the Postal Service's action in an order issued November 17, 1987, which became final on December 22, 1987.

Montgomery filed this action on December 18, 1987, asserting several claims including a violation of Title VII, 42 U.S.C. Secs. 2000e et seq. He named the Postal Service as the only defendant. Appellee has admitted that the original complaint was timely filed, at least if it had named the proper party defendant.

On December 22, 1987, Montgomery claims to have mailed a copy of the summons and complaint to the Attorney General, the local Postmaster, and the United States Attorney for the Southern District of Texas. The U.S. Attorney acknowledged receipt of the summons and complaint in a December 28, 1987, letter addressed to Montgomery's counsel rejecting service and stating that personal service was required. The Attorney General has not acknowledged receipt of the complaint. The U.S. Attorney was thereafter personally served on February 16, 1988, and moved unopposed on April 18 for a five-day enlargement of time to respond to Montgomery's complaint.

On April 22, the government filed a Motion to Dismiss or Alternatively for Summary Judgment, asserting improper service of process, that Montgomery named the wrong defendant, and that an amendment naming the proper party defendant--the Postmaster General--could not relate back under Rule 15(c) because the proper party defendant did not receive notice within the thirty-day limitations period provided by 42 U.S.C. Secs. 2000e-16(c). On June 8, 1988, the district court granted summary judgment dismissing all Montgomery's claims and stating that the Title VII claim could not be cured by amendment of the complaint naming the proper defendant because such amendment could never satisfy the notice requirements of Rule 15(c). Two days later Montgomery moved to amend his complaint to name the Postmaster General of the Postal Service--the proper party defendant. That party has never been served because Montgomery has not been granted leave to amend his complaint.

Discussion

The Postmaster General is the only proper defendant in a Title VII action against the Postal Service. Lamb v. United States Postal Service, 852 F.2d 845, 846 (5th Cir.1988). Consequently, Montgomery sued the wrong defendant in his original complaint.

Under 42 U.S.C. Sec. 2000e-16(c), Montgomery was required to bring suit within thirty days of the final MSPB order. All concerned recognize that he filed his original complaint in time, but did not move to amend until after the limitations period had expired. Montgomery's claim is therefore time-barred unless his amended complaint properly naming the Postmaster General as defendant relates back to the time of the original filing.

The relation back of an amended complaint substituting a different defendant is governed by Rule 15(c). Under that rule such an amendment does not relate back unless it satisfies all the elements of the following four-part test:

"(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period." Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986).

In order for an amended complaint to relate back, the proper party must have received notice within the limitations period for filing the action and not merely within the time for service of process as provided under Fed.R.Civ.P. 4. Id. 106 S.Ct. at 2385; Harris v. United States Department of Transportation, 843 F.2d 219, 221 (5th Cir.1988). By its terms, Rule 15(c) states that notice to the U.S. Attorney within the limitations period is sufficient to preserve an action against a United States agency or officer. ¹ Honeycutt v. Long, 861 F.2d 1346, 1352 (5th Cir.1988). The parties do not dispute, and the district court did not question, that for these purposes the Postmaster General is an officer of the United States. Thus, notice to the U.S. Attorney is notice to the Postmaster General.

The question on appeal, and which this Circuit has not yet directly decided, ² is what type of notice satisfies Rule 15(c). Montgomery claims that the U.S. Attorney had notice of the lawsuit within the thirty-day limitations period because he acknowledged, in writing, receipt of the summons and complaint. Assuming that mailing does not constitute proper service on the U.S. Attorney, nevertheless it is notice and not service that Rule 15(c) requires. Schiavone, 106 S.Ct. at 2385 ("The linchpin is notice, and notice within the limitations period."); Edwards v. United States, 755 F.2d 1155, 1158 (5th Cir.1985) (stating in dictum that because Rule 15(c) allows delivery or mailing to the U.S. Attorney, "even if more remains to be done to complete service of process under Rule 4(d)(4), the requirements of Rule 15(c) have been satisfied...."). Notice may be formal or informal. Honeycutt, 861 F.2d at 1350 (in dictum); Fed.R.Civ.P. 15 advisory committee's note on 1966 amendment. Thus, the issue is whether the U.S. Attorney had sufficient notice under Rule 15(c) when he refused service but acknowledged receipt of the summons and complaint.

As a threshold matter, the Postal Service asserts that it must prevail on this summary judgment motion because once it pointed out a deficiency preventing relation back, Montgomery failed to offer any summary judgment evidence to show that the Postal Service had received Rule 15(c) notice. In support of this argument the government notes that Montgomery did not attach the letter of acknowledgement to its opposition to the summary judgment motion. However, in his May 11, 1988, memorandum in opposition to the motion for summary judgment, Montgomery asserted that he mailed the complaint to the U.S. Attorney, the Attorney General, and the local postmaster on December 22, 1987, and that "[t]he United States Attorney acknowledged, in writing, receipt of the complaint." This was never disputed.

A party seeking summary judgment carries the burden of informing the district court of the basis of his motion and identifying those portions of the pleadings or recorded discovery that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once so informed, the district court must enter summary judgment against a nonmoving party who fails to offer some proof assuring the court that he may prevail at trial on a challenged issue that is an essential element of his case. Id. 106 S.Ct. at 2552-53.

We find that the government did not meet its initial burden of pointing out the absence of a genuine issue of material fact. The Postal Service stated that it received no service within the statutory, thirty-day time period, but has made no showing or allegation that it did not timely receive actual notice. The factual issue in this case is notice, not service. The government nowhere below disputed, nor does it dispute on appeal, Montgomery's allegations regarding the letter from the U.S. Attorney.

If in fact the U.S. Attorney acknowledged receipt of the summons and complaint within the limitations period as Montgomery claims, all of the factors in the Schiavone test have been satisfied. The claim clearly...