*1 Charges of Discrimination in October might hold the action barred as the employ- knew of plaintiffs’ claims before the two- er would have more a basis to claim a year Thus, ran. we statute are satisfied repose than defendants here. weighing equitable Thus, that a considera- we conceive that an might individual tions in requires these cases stat- become aware rights of his under the ute of ADEA plaintiffs’ limitations be tolled and too soon or too benefit late complaints Indeed, our timely. be considered result. Accord- in our view this case ingly, judges falls erred in within a defend- narrow through corridor ants’ summary judgment. motion for may safely pass. point think We also important point We out what out we not do decide respect with opinion. particular limitations of our Our these result cases. The matters are based on the us plaintiffs’ coincidence of the before appeals circum- from (1) the granting stances that: district court did not defendants’ motions for summary judgment and, err in defendants’ denying original addition, motions from the dismiss; (2) district court’s charges denial of were defend- filed ants’ motions which, promptly with the dismiss EEOC as we after have indicated, were counsel; (3) retained treated as charges motions for sum- were filed judgment.6 mary We are only at a time holding when the 60-day provi- deferral original motions were 626(d) properly sions of 29 U.S.C. denied made it too late § and that the second motions should properly have to file their district been denied. Finally, in result, view of our complaints within years two after the we do plaintiffs’ not reach contentions alleged occurrence of the action; unlawful three-year statute of (4) ap- limitations is the defendants were aware plicable in these cases. charges years within two of the accrual of Thus, causes of action. we The orders for summary judgment will do not suggest that if plaintiffs had been be reversed and the matters will be re- potential aware of their beyond claims the manded to the trial court for pro- further period for filing timely charges, EEOC but ceedings consistent with opinion.7 early enough so days that 60 after filing the charges they could brought have
actions two-year within the peri- limitations od, we would have reached the same result.
To contrary, it is perceive difficult to equitable
what
considerations in those cir-
justify
cumstances could
tolling
a
as de-
ISLAND
COMPANY;
CREEK COAL
fendants’
post
failure to
the notices could
Garden Creek Pocahontas
not then be held to
required
have
that the
Company, Plaintiffs-Appellants,
brought
court action be
un-
an
v.
timely fashion.
SHORE,
INC.,
LAKE
We further note that we do not suggest
Defendant-Appellee.
that our result would
been
same
No. 86-1172.
Allen-Sherman-Hoff had not been aware
of plaintiffs’ claims
years
within two
after
United States Court of Appeals,
were notified
were to be
Fourth Circuit.
discharged. While in that circumstance the
Argued
Jan.
1987.
equities in
plaintiff
favor of
might
no
Decided Oct.
1987.
here,
less than
court,
those
aware
obligation ordinarily to apply a statute of
(see
limitations
School Dist. Allentown
Marshall,
(3d
6. appropriately Defendants raised this issue 7. It implied inferred that we have cross-appeal. without a See Lucas v. & W. any opinion as to the merits of this case. Gulf Inc., (3d Ind. Cir.1981). *2 Cullen, Oakey, Martin Jr.
Richard John McGuire, Priddy, Woods & (Mary M.H. Jr., Battle, Vaughan, John K. Ernest C. Messersmith, IV, Cherry Randolph, Boyd, Va., brief), Richmond, Vaughan, on plaintiffs-appellants. Urbanski, John L. Walk-
Michael Francis (Woods, Hazelgrove, Roa- er, Rogers & Jr. Woodward, noke, Va., Kirksey, Larry B. brief), Bristol, Va., Flannagan, on &Miles defendant-appellee. WILKINSON, RUSSELL Before HAYNSWORTH, Judges, and Circuit Judge. Circuit Senior RUSSELL, Judge. Circuit DONALD action, diversity plaintiffs, In this mines, de- sued the of coal operators fendant, mining machin- a manufacturer damages, property direct ery, to recover resulting from consequential machinery purchased breakdown They defendant. plaintiffs of the warranty their action on breach ground its answer to negligence. In on pled, complaint, the defendant plaintiffs' defenses, immunity from lia- among other damages under an bility for recovery. On express exclusion 23, 1986, April mary judgment about a month before trial on June 1986 in a care- scheduled, of the action the defendant fully developed opinion. summary judgment partial moved for a plaintiffs, the meantime the in Novem- the con- declaring valid and enforceable ber, 1985, had moved to amend their com- provision denying tract to recover plaint allege separate negligence claim damages in This the action. against the defendant for negli- after-sale the last sentence premised motion *3 was gence by failure to plaintiffs warn of a “Terms Paragraph 10 of the and Condi- defect the machinery by discovered the part of the tions” was a defendant’s which defendant after sale and to assert a claim “Quotation” plaintiffs on the basis of which punitive damages. for The defendant re- purchases machinery of had made their the sisted the motion “untimely and is con- subject of this
which is the action. This trary to the justice.” interests of The dis- paragraph paragraphs is one of ten includ- court, 29, trict in an January order dated ed in such “Terms and Conditions.” The 1986, plaintiffs’ denied motion to amend. paragraph full is as follows: After granted the district court the de- rights obligations The the Seller of fendant’s motion partial for a summary Buyer any placed under order judgment eliminating plaintiffs’ right to re- pursuant governed hereto shall be by consequential cover damages and the deni- the laws the Michigan. State This of of plaintiffs’ amend, al of motion to 636 quotation subject change to without F.Supp. the (30) only issue left for expires thirty notice and resolu- days from tion plaintiffs was the claim of its date unless otherwise for direct indicated or re- waiver, property damages. posture newed. No modification or addi- this of the any provisions parties tion to of the case the compromise the face entered into a or reverse side hereof binding disposing shall be settlement plaintiffs’ of claim for writing by unless made in Seller. In no property damages direct reserving but the any consequential event shall claim right of appeal grant special damages be made either by the district partial court of the summary added) party. (Emphasis judgment and the plaintiffs’ denial of mo- tion to amend complaint. The undisputed It is Paragraph that this was a appealed grant both part partial of the parties. contract of the It was summary judgment agreed by parties that, also the denial of its under Para- graph 10 motion Conditions,” rulings of the “Terms and to amend. These of the Michigan judge law of was controlling present in the district appeal. the issues on contract, that, construction of this grant un- partial We affirm the summary Michigan law, der parties to a contract judgment but reverse the denial of “may limit or consequential exclude dam- tiffs’ motion to amend. 1 ages.” The par- defendant’s motion for a summary tial judgment against the recov- I. ery herein consequential damages sought judicial We first address the objections determination that under paragraph quoted grant any right partial thus summary judgment damages precluded. recover such sustaining The defendant’s claim that Para- granted district court the motion graph for sum- 10 applicable of the “Terms and Con- 1. The district court found that "a federal court sen.” It also found that the transaction in exercising diversity jurisdiction apply engaged must which have been herein bore such state,” conflict of laws rules relationship of the forum Virginia. White to the State of The Corp., F.Supp. parties American Motors Sales dispute 550 do not this conclusion of the (W.D.Va.1982), aff’d., 1289 judge. 714 F.2d accordingly 135 We must look to the (1983), 8.1-105, Va.Code, and that Michigan under section construing Paragraph law of 10 herein, proper application establishes the recognizing provisions to be that contractual given parties’ provides own limiting recovery choice of forum of this contract of conse- parties that the quential damages choice of law controls in the is valid under the laws of Virginia "provided courts of Michigan. Mich.Comp.Laws that the transaction See Ann. 440.- § relationship bears a reasonable to the state cho- 2719. language unnecessary nugatory. re- bars ditions” are unable argument. case. We this follow cover re- parties controversy between argument is con given to be the construction lates to trary to that rule of universal contract law “In no Paragraph: sentence of such last that, contract, construing language in a shall claim event interpretation gives “an a reasonable party.” damages made either special parts to all of the contract will be preferred to one portions that leaves Michigan, courts the law Under meaningless....” contract United States a con but construe not write contracts do Controls, Inc., v. Johnson language of light in the tract (Fed.Cir.1983); Union Inv. Fi Co. v. language of the con Only if parties. Ind., Deposit delity & F.2d Co. for con ambiguous is there room tract is 1107, 1110 Cir.1977). In Union Invest courts, Michigan under the struction ment, court, citing support the Mi Mich.App. Brydges, 57 rule. DeVries v. Shea, chigan case of Vary v. Mich. *4 195, (1974). 36, plain The N.W.2d 198 225 (1877), 398 stated the rule thus: “A con that, despite clarity the of its contend tiffs not be so reject tract will construed as to provision barring language, contractual surplusage as any they words can reas- damages in Para recovery consequential of aonably given meaning.” be The same subject to ambiguous 10 is and is graph recently phrased Michigan in idea was Following reason this line of construction. “Furthermore, in case these words: con Paragraph 10 ing, plaintiffs urge provisions reasonably tractual must be con must be the “Terms and Conditions” of nugatory strued so as make none and along paragraphs in with the other read promises illusory.” contained therein “Terms and Conditions” and (UAW) Union In International Roblin conformity what in with be construed 288, dustries, (W.D.Mich. F.Supp. 561 298 purpose of the to be the evident declare 1983). keeping In with this of con rule taken a whole. “Terms and Conditions” as struction, the in court Cordovan Associ view, is that all the purpose, This in their ates, Dayton 290 Company, Inc. v. Rubber solely to (6th Cir.1961), and relate put that, “Terms Conditions” 861 it F.2d delivery terms” “price susceptible and and is to differ “Where contract language Paragraph in simple, interpretations, adopt clear-cut court will ent terms, validity, is rea though give stated in is to be one which will it if it absolute sonable, which renders it “price in and rather than one application its restricted argument The illusory.” Specifically, contends delivery terms.” con stand this rule of contractual would 10 for Paragraph does not cover claims They take head. would struction And, negligence. warranty of or breach as can language which is as clear words Paragraph 2 of the they reason that it, ambiguous, find and then make it is Conditions,” ex which does “Terms language of completely emasculate that recovery proscribe of pressly any whatsoever. delivery damages “price for breach of in the contract and which must be terms” 2 are opinion, Paragraphs and 10 our fn construing language Para read in of inconsistent, can contradictory both or words graph demonstrates that may readily and should harmonized any Paragraph event” in 10 had refer under given a reasonable construction “[i]n arising out of meaning- of ence claims breach neither be rendered will said, terms” could not “prices delivery Paragraph have relates as we less. applied liability record, strictly damages for for throughout to claims negligence. for In manu- warranty resulting “delay delivery or from in or breach essence, argument facture,” Paragraph would whereas in- “conse- language to recover give no effect tended to bar whatsoever damages” recovery special under Paragraph proscribing quential those cir- consequential damages and other circumstances. whatever find might cumstances be. The phraseology of holding, there was no provision contractual Paragraph 10 seems to us to make this limiting liability for consequential damages interpretation not merely reasonable but part of case, and that case is no adopt We conclusive. this construction authority for a distinction between negli- Paragraph 10 the application and affirm gence and contract claims in a limitation of this paragraph construction by the liability claim under the law of Michigan, its order summa- as we read it. ry judgment. We, therefore, affirm the district court’s plaintiffs posited, even admitting ar- grant of summary judgment against guendo, Paragraph 10 might be held recovery of damages by to bar recovery damages consequential damages, on the record be- warranty breach of or contract claims it fore district court at the time. could not be construed to bar claims of negligence. reason, There no however,
why the parties cannot limit
II.
the recovery
of consequential
special
neg
have raised a second issue
ligence
claims well as warranty
claims which they contend requires
reversal.
and we have been cited to no Michigan
Some four or five months before trial was
authority
state
favor
a distinction
to begin,
scheduled
the plaintiffs moved for
between warranty claims and claims in
leave to amend their complaint by stating
negligence in
regard.
The Court in
separate
another
ground for recovery.
Fibres,
U.S.
Inc. v. Proctor
Schwartz,
&
this new ground,
alleged the
Inc.,
F.Supp. 449,
465 (E.D.Mich.1972),
*5
defendant discovered after the sale and
aff'd.,
(6th
279
punitive damage claim”
arbitrarily
sel due to
ment
in disregard
prin-
to the
“probable summary judgment motion
ciples
determining
established for
when the
punitive damage
Weighing
issue.”
all
amendment
“freely granted”
to be
and,
considerations,
the district court con-
permit proper review,
the district court
“justice
cluded that
served
[would
be]
spell
out the reasons for such denial
amending
the suit at this late date be-
perfectly
unless
clear on the face of the
delay
disposition
cause of undue
and many papers
responses
thereto that
prejudice
undue
to the defendant.” The
the amendment
is not
to be allowed.
plaintiffs appeal this denial of their motion Rhodes v.
Hospital District,
Amarillo
654
to amend.
1148,
(5th Cir.1981).
F.2d
1153
Davis,
Foman
Following
371
already
We have
stated the reasons
178,
227,
U.S.
9
S.Ct.
L.Ed.2d
assigned by the district court for the denial
(1962),
repeatedly
we have
held that
of the motion to amend in this case. The
15(a)
leave to
under
amend
Fed.R.Civ.P.
assigned
first reason
long penden
was the
“
freely given
justice
‘shall be
when
so
cy
years)
suit
during which
(3V2
”
requires’
underlying
and that
“[i]f
discovery had been had and the issues had
upon
facts or circumstances
relied
by a
thereby
been
defined.
It is true that
plaintiff may
proper subject
relief,
be a
delay has
long
been
but there was a rea
ought
he
to be afforded an opportunity to
justification
sonable
delay
part
on the
merits,”
his
test
claim on the
and that “[i]n
plaintiffs.
It was
in July, 1985
apparent
of any
absence
or declared
they acquired
assert
reason —such
delay,
as undue
bad faith or
knowledge of the facts on which this new
dilatory motive ...
the leave ...
should”
count rests. The district
accepted
“
”
‘freely given.’
Smith v. Town of
allegation.
truthfulness of this
While
Clarkton, N.C.,
682 F.2d
plaintiffs delayed
for three months af
Co.,
Cir.1982);
Johnson v. Oroweat Foods
ter this knowledge to file their motion to
(4th Cir.1986), And,
while
amend,
delay
did not appear inordi
given
the trial court is
deny
discretion to
nate or
excessive
view of the fact that
amendment,
that discretion is
limited
brought
facts as first
at
interpretation given
15(a)
in Fo
Rule
*6
tention were
depositions
drawn from the
man,
by
general
“and
policy
the
embodied
defendant’s
July,
witness first
taken in
in the Federal
favoring
Rules
resolution of
plaintiffs
1985. The
were entitled to a
Thus,
cases on their
exercising
merits.”
in
investigate through
reasonable time to
oth
its discretion in the matter
the Court
er
they
sources the information
had se
should focus “on prejudice
futility
or
or
deposition
cured from the
of defendant’s
legitimate
bad faith as the only
concerns in
Certainly,
witnesses.
there was no show
amend,
denying
only
leave to
since
ing
purposeful
dilatoriness or bad faith
truly
protection
relate to
judicial
the
by
plaintiffs
the
in
delay
filing
the short
in
system
litigants.”
or other
Piper
Davis v.
their motion to
they
amend after
became
Corp., Cir.
Aircraft
apprised
possible
claim. Nor can the
1980). It has
specifically
been
in line
held
defendant have suffered
prej
material
language
this
delay
with
that mere
in mov
udice
delay.
as a result of this short
ing to amend is “not sufficient reason to
amend,”
argue,
The defendant
deny
does
and the dis-
only
leave to
it
is
when
accepted
trict court seems to
delay
accompanied
have
the ar-
by prejudice,
“[t]he
[i]s
faith,
gument, that the addition
Johnson v. Orow
futility.”
bad
or
of the new count
Co.,
eat Foods
require
supra,
dent action mary judgment for the defendant. likely be confronted with the defense I do not think that the last sentence in on their failure to judicata, of res based clearly applicable Paragraph 10 is so to a fact, claim in this case. In raise such breach of warranty claim place as to precisely assert that this is what beyond by construction the factfinder. happened. of their has After the denial case, motion to amend in this provisions contractual before us independent filed an action on the disal- are the “Terms and printed Conditions” by plea lowed claim and were confronted a upon price quotation the seller’s form. judicata by the defendant. Whether res Those terms and entirely conditions deal is, course, upheld the defense will be price with matters of delivery. There sustained, problematic; plea but is is no potential mention of warranties or denying the action of the district negligence. every liabilities for Since other the motion to amend herein would in effect paragraphs sentence the ten is con- preclude having from ever a price delivery, cerned with I think it hearing satisfy- on this claim. That is not may reasonably argued be the last ing justice. the ends of Paragraph sentence of 10 is also exclusive- ly things. concerned with such If the sen- summary, we think this is one of those may applicable tence also be read as rare cases which a refusal the district warranty negligence claims, breach judge grant an represents amendment reasonably debatable and is an abuse of discretion. per- We are not factfinder, be determined a suaded that the defendant will unfairly partial summary court on a motion for prejudiced by the amendment nor will court judgment. administration unduly delayed. On the hand, other to sustain the refusal could My reading Paragraph 2 and the last well mean that would be de- Paragraph sentence of entirely 10 is har- nied opportunity hearing on the fully operable monious. Each is in its own claim, merits their they brought which area. before the court with prompt- reasonable Paragraph ness after the discovery provides sup- facts that the seller shall porting claim, their facts not be liable for delay delivery which had been re- known to the sulting defendant for beyond from a cause considerable its reasonable length of time. control. There is no reference to conse- quential damages; the seller is not to be therefore, appeal, conclusion on this Our liable for kind if there is ruling is that the district court’s on the delay for which it is not reasonably respon- affirmed, its denial of first issue is but sible. file an plaintiffs’ motion for leave to Paragraph I read the last sentence complaint amended is reversed. hand, dealing delay on the other with a delivery respon- the seller is AFFIRMED IN PART and REVERSED sible or with an unreasonable failure IN PART. accept delivery. In circum- buyer to those stances, defaulting party is liable *8 direct but not HAYNSWORTH, Senior Circuit damages. concurring part Judge, and dissenting part: The crucial sentence at the end of Para- graph provides party that neither shall Judge opinion inso-
I Russell’s concur assert a claim for consequential damages the denial of far as it deals with against the other. complaint. I the context of deliv- tiff’s motion to amend eries, way approach Timothy a reasonable ROSSMAN, Allen Administrator damages, of the Estate prohibition Rossman, of Paula K. deceased; Rossman, conceivably make Jodi might for the seller S. Plaintiff- Appellant, unreasonably buyer if it against a claim delivery specially accept refused to man- and machinery, pay or to for it. The ufactured language singularly inappropriate, seems Kelly Richards, Plaintiff, however, parties if the focus v. upon potential negligent claims failure to warn of defects or for of warran- breach CONSOLIDATED INSURANCE COMPA ty. NY, corporation; an Indiana the Pro Casualty tective Company, Insurance given The construction this sentence in corporation; Missouri State Farm Mu majority opinion may be a permissible tual Company, Automobile Insurance I one. only permissible believe it is not the corporation; an Illinois Prudential one. Its should be for determina- Property Casualty and Insurance Com tion pany, Jersey corporation, factfinder and not the court New De fendant-Appellee. on a judgment. motion for summary
Timothy ROSSMAN, Allen Administrator Rossman, the Estate of Paula K. deceased; Rossman; Kelly Jodi S. Rich ards, Plaintiff-Appellee, v.
CONSOLIDATED INSURANCE COM PANY, an corporation, Indiana Defendant-Appellant, and Casualty Protective Insurance Com Timothy ROSSMAN, Allen Administrator pany, corporation; a Missouri State of the Estate of Rossman, Paula K. Farm Mutual Automobile Insurance deceased; Rossman, Jodi S. Plaintiff- Company, corporation; an Illinois Pru Appellee, Property dential Casualty Insur Company, Jersey ance corpora Newa tion, Defendant. Kelly Richards, Plaintiff, Timothy ROSSMAN, Allen Administrator
v. of the Estate Rossman, of Paula K. deceased; Rossman; Jodi Kelly S. Rich STATE FARM MUTUAL AUTOMOBILE ards, Plaintiff-Appellee, COMPANY, INSURANCE an Illinois corporation, Defendant-Appellant, PRUDENTIAL PROPERTY AND CASU ALTY COMPANY, INSURANCE a New Consolidated Insurance Company, an Jersey corporation, Defendant-Appel corporation; Indiana the Protective lant, Casualty Insurance Company, a Mis corporation; souri Property Prudential Casualty Insurance Company, a Consolidated Insurance Company, an New Jersey corporation, Defendant. corporation; Indiana the Protective