Plaintiffs Barbara Hildebrand and her husband Jack Robert Hildebrand brought suit on February 15, 1977 against Honeywell, Inc., Mrs. Hildebrand’s former employer, seeking damages for her wrongful termination on the basis of her age and sex. In their complaint they alleged diversity jurisdiction but failed to allege specifically that therе was jurisdiction under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626. Though the complaint did not so state, attached to it was a copy of plaintiff’s right to sue letter from the Equal Employment Opportunity Commission notifying Mrs. Hildebrand of her right to institute suit against Honeywell for the alleged discriminаtion. Honeywell filed its answer on March 8, 1977, asserting as one of its defenses that the action should be dismissed for failure to state a claim upon which relief could be granted. The case lay dormant until April 27, 1979 when the district court entered an order notifying the parties that the matter had been sеt for docket call and trial on June 11, 1979 and that no motions of any kind other than motions for continuance would be entertained unless filed at least 20 days before the date set for docket call.
On May 22, 1979 Honeywell filed a motion to dismiss the complaint or in the alternative for judgment on the рleadings on grounds that the district court lacked jurisdiction over the subject matter and that the allegations contained in the complaint failеd to state a claim upon which relief could be granted. 1 On May 31 defendant Honeywell moved for a continuance on the ground that one of its essential witnesses would be out of the country on the date set for trial. This motion was denied. Then on June 6 plaintiffs Hildebrands filed a motion for leavе of court to amend their complaint to allege specifically jurisdiction under the Civil Rights Act, 42 U.S.C. § 2000e et seq., and to include a statement in their complaint that attached as an exhibit was an EEOC right to sue letter. At the same time plaintiffs also filed a motion for continuance alleging that they had beеn in Europe for the two years during the pend-ency of the suit on a business assignment for Mr. Hildebrand’s employer and would continue to reside in England for another six months until the job assignment had been completed.
The district court entered an order on June 14,1979 denying plaintiffs’ motion for leave to file an аmended complaint because it was filed “on the very eve of trial and in contravention of this Court’s order that all motions be filed no later thаn 20 days prior to docket call.” The order also granted defendant Honeywell’s motion to dismiss plaintiffs’ complaint without assigning reasons therefоr. On June 18, 1979 final judgment was entered dismissing the suit.
Plaintiffs Hildebrands then filed a motion to amend the court’s order of dismissal, which motion was denied by the district court. In its denial order, the district court noted that although its ruling refusing plaintiffs leave to amend their complaint was “a drastic action,” the plaintiffs’ complaint was deficient “[b]y the admission of *181 Plaintiffs’ own attorney” and they had failed to prosecute their lawsuit until filing their motion to amend, which motion was not timely and was in contravention of the court’s order requiring all motions to be filed 20 days before docket call.
Plaintiffs appealed on the ground that the district court abused its discretion in dismissing their complaint without allowing them leave to amend. We find that the order and judgment of dismissal were erroneously еntered and therefore reverse.
While the district court’s order of June 14 dismissing plaintiffs’ complaint fails to state the court’s reasons for dismissal, its subsequent order denying plaintiffs’ motion to amend the order of dismissal indicates that the basis of dismissal was the Hildebrands’ failure to allege particularly the statutory basis of the court’s jurisdiction and their failure to prosecute the action timely. On either ground the court’s action was erroneous.
Regаrding the issue of the complaint’s deficiency in alleging proper jurisdiction, it is well settled that where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.
Southpark Square Ltd. v. City of Jackson,
If the basis of the district court’s dismissal of plaintiffs’ complaint was their failure to prosecute, we find that the court’s ruling was an abuse of discretion. While a сourt may sua sponte dismiss a case with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure,
Link v. Wabash Railroad,
Although рlaintiffs failed to take any action to prosecute their suit for a period of over two years, their motion for a continuance indicates that they were overseas during the entire period the case was pending. Thus they appear to have been penalized by the lack of diligence of their attorney, who failed to file a second pleading until June 6, 1979, at which time he filed a motion for leave to amеnd the complaint. Plaintiffs’ motion was prompted by defendant Honeywell’s motion to dismiss, which was not filed until May 22, 1979, the last day upon which the court stated it would entertain motions other than motions *182 to continue. Prior to Honeywell’s motion to dismiss, which the court granted, no pleading other than a motion tо substitute counsel had been filed by defendant since its answer to plaintiffs’ complaint on March 8, 1977. Under the circumstances, no clear record of wilful contempt or contumacious conduct by the Hildebrands has been demonstrated.
Moreover, Rule 15(a) of the Federal Rules of Civil Proсedure provides that leave to amend a complaint shall be freely given when justice so requires. Permission should be denied only if it appеars to a certainty that plaintiffs cannot state a claim showing they are entitled to relief or defendant will be unduly prejudiced.
Griggs v. Hinds Junior College,
REVERSED AND REMANDED.
Notes
. Honeywell’s pleading also alleged that certain matter be stricken from plaintiffs’ complaint on the ground that it was immaterial and impertinent.