Dean Schomburg v. Dow Jones & Co Inc, 504 F. App'x 100

Schomburg worked for Dow Jones as a radio anchor for about fourteen years until 2008.
He filed a pro se Title VII complaint on June 13, 2011, alleging discrimination and later added several related claims.
The EEOC notice allegedly dated March 8, 2011 was attached to the form complaint; Schomburg later claimed he received it on March 18, 2011.
The district court denied in forma pauperis status, dismissed the action for failure to pay the filing fee, then later dismissed the amended complaint against Dow Jones for timeliness.
The district court treated the March 8 receipt date as controlling, refusing leave to amend, and dismissed the Title VII and ADEA claims; the Union and NLRA/LMRA claims were also dismissed.
Schomburg sought reconsideration and then appealed pro se, challenging the timeliness ruling and seeking leave to amend to reflect March 18 receipt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether amendment to assert March 18 receipt cures timeliness	Schomburg should be allowed to amend to reflect March 18 receipt.	Receipt date in complaint should control; amendment would be futile	Leave to amend should be allowed; amendment timely raises meritorious issues
Whether initial March 8 date constitutes a binding admission	Initial date can be withdrawn via amendment under Rule 15(a)(2).	Initial allegation is binding and cannot be contradicted to circumvent dismissal	Judicial admissions may be withdrawn by amendment; liberal amendment policy applies
Whether district court abused its discretion by denying leave to amend	District court should apply liberal Rule 15(a)(2) standards and allow amendment.	Amendment would be inequitable or futile due to timeliness concerns	District court should have permitted amendment to date that could render claims timely

Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162 (3d Cir. 2008) (initial allegations may be withdrawn; not binding if amended)
Parilla v. IAP Worldwide Servs. VI, Inc., 368 F.3d 269 (3d Cir. 2004) (standing and factual concessions may relate to pleadings)
188 LLC v. Trinity Indus., Inc., 300 F.3d 730 (7th Cir. 2002) (pleadings' contradictions may be amended; earlier pleadings not binding admissions)
American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988) (withdrawn or superseded pleadings not binding admissions)
Giannone v. U.S. Steel Corp., 238 F.2d 544 (3d Cir. 1956) (recognizing that withdrawn pleadings do not constitute judicial admissions)
Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010) (liberal amendment policy under Rule 15(a)(2))
Dole v. Arco Chem. Co., 921 F.2d 484 (3d Cir. 1990) (liberal amendment to decide cases on their merits)
Huey v. Honeywell, Inc., 82 F.3d 327 (9th Cir. 1996) (earlier pleadings may be used as evidence; amendments may create issues of fact)
Payan v. Aramark Mgmt. Servs. Ltd. P’Ship, 495 F.3d 1119 (9th Cir. 2007) (receipt date considerations in EEOC timeliness context)
Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236 (3d Cir. 1999) (premature considerations on receipt and timeliness)
Pay an v. Aramark Mgmt. Servs. Ltd. P’Ship, 495 F.3d 1119 (9th Cir. 2007) (date of receipt issues in EEOC context)