Ruffin v. ITT Continental Baking Co., DC85-133-NB-O.

• Decision Date: 16 June 1986
• Docket Number: No. DC85-133-NB-O.,DC85-133-NB-O.
• Citation: 636 F. Supp. 857
• Parties: E.L. RUFFIN, Plaintiff, v. ITT CONTINENTAL BAKING COMPANY, Luther Harris, Jr., and Monroe Pharis, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

636 F. Supp. 857

E.L. RUFFIN, Plaintiff, v. ITT CONTINENTAL BAKING COMPANY, Luther Harris, Jr., and Monroe Pharis, Defendants.

No. DC85-133-NB-O.

United States District Court, N.D. Mississippi, Delta Division.

June 16, 1986.

Azki Shah, Clarksdale, Miss., for plaintiff.

Jay W. Kiesewetter, Michael C. Speros, Memphis, Tenn., for defendants.

MEMORANDUM OPINION

BIGGERS, District Judge.

The present cause comes before the court on the defendants' motion for summary judgment and for attorney fees and costs. Upon consideration of the memoranda and the pleadings, and being fully advised in the premises, the court is now in a position to rule on the motion.

On May 26, 1985 the plaintiff filed the complaint in this action seeking relief from alleged religious discrimination in employment under 42 U.S.C. § 2000e, et seq. (Title VII), 42 U.S.C. §§ 1983 and 1985, and under the First and Thirteenth Amendments to the United States Constitution. The plaintiff also asserts pendent state claims for alleged breach of contract, wrongful discharge, and intentional infliction of emotional distress.

The defendants have now moved for summary judgment as to all claims on the basis that the same claims have been previously presented to the court in a prior action, Ruffin v. ITT, DC84-16-NB-O, involving the same parties and that the disposition of the previous claims by summary judgment (counts two through six) granted in favor of the defendants by order dated April 19, 1985, and by consent order (counts one and seven) by order dated October 3, 1984, operates as res judicata.

The court finds that defendants' argument regarding res judicata is not well taken as to counts two through six, although for reasons discussed below these counts will be dismissed on other grounds. When considering the question of whether the doctrine of res judicata bars reconsideration of claims previously disposed of by way of summary dismissal, it is important to determine whether the dismissal went to the merits of the claims. If dismissal was predicated upon a review of the relative merits of a claim, then, as a general proposition, the plaintiff will be precluded by the doctrine of res judicata from relitigating the claim. Where however, as in the instant case, summary dismissal is not rendered after an assessment of the relative merits of a claim but rather is predicated upon, for example, a procedural omission, then res judicata is not applicable and will not prevent reconsideration. Such is especially true in cases where a court determines that dismissal is to be "without prejudice." See Liberty Mutual Ins. Co. v. Vanderbush Sheet Metal Co., 512 F.Supp. 1159, 1163 (E.D.Mich.1981). Because plaintiff's claims (counts two through six in present complaint) were previously dismissed "without prejudice" due to plaintiff's failure to respond to defendants' motion for summary judgment, the court finds that the present claims are not barred by res judicata. However, the court finds that the doctrine of res judicata does bar relitigation of counts one and seven of the present complaint since the plaintiff had agreed, pursuant to the consent order dated October 3, 1984, to dismiss with prejudice the claims alleging violation of the first and thirteenth amendments. Accordingly, the defendants' motion for summary judgment on counts one and seven will be granted.

The defendants also contend that summary judgment should be granted as to the claims alleging Title VII violations (counts two and three) because the present suit was not filed within ninety days of plaintiff's receipt of the Notice of Right to Sue letter, as required by the statute of limitations provisions of 42 U.S.C. § 2000e-5(f). Because it is undisputed that the plaintiff received his Notice of Right to Sue more than a year before the filing of the present complaint, it is clear that counts two and three are now time-barred and also will be dismissed.

The remaining counts set forth claims premised on Mississippi law and have been added to the present complaint by virtue of the doctrine of pendent jurisdiction. Because the court has determined that the federal claims should be dismissed, the court finds as a consequence that the pendent state claims should be dismissed as well.

The defendants have also moved for costs and attorney's fees pursuant to section 706(k) of Title VII which provides for an award of costs including attorney's fees to the prevailing party in a Title VII action. The defendants may recover costs "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). Moreover, whether an award of costs is to be granted is a matter lying within...