Joe T. GONZALES, Plaintiff-Appellant, v. SECRETARY OF THE AIR FORCE and the Department of the Air Force, Defendants-Appellees.
No. 86-1609
United States Court of Appeals, Fifth Circuit.
Aug. 18, 1987.
824 F.2d 392
As the district court held, it is clearly established in Mississippi case law that a parent is immune to a tort suit by his unemancipated minor child. This doctrine was first announced by the Mississippi Supreme Court in Hewellette v. George.1 Although that decision was rendered nearly a century ago, the court later followed it in Durham v. Durham,2 holding that parental immunity barred an action filed by an unemancipated minor against her natural father pursuant to the Mississippi Wrongful Death Statute for the negligently caused death of her natural mother. The court reached a similar decision in 1971 in McNeal v. Administrator of the Estate of McNeal,3 affirming the dismissal of the complaint filed by a child who was injured in an automobile accident, allegedly as a result of her father‘s negligence.
The plaintiff‘s reliance on Deposit Guaranty Bank & Trust Co. v. Nelson4 is misplaced, for that case involved a suit by a stepdaughter against her stepfather for the wrongful death of her mother. The court held that spousal immunity ceases to exist when it is destroyed by the intentional killing of the spouse. The issue here is not spousal immunity, but parental immunity.
Many decisions to the contrary have been rendered in other states. A majority of states have now abrogated the absolute immunity of the parent to tort suits by its child, either by case law or by statute.5 The other states have been urged to follow their path.6 As the judicial equivalent of a Mississippi inferior court, we are not free to create new doctrine, however persuaded we might be that state law is antiquated, unless we have some indication that the state courts would themselves do so if confronted by the same situation.7 Nothing to this effect has been shown here.
For these reasons, we AFFIRM the judgment of the district court.
John E. Tobin, Dorsey & Whitney, Edward J. Pluimer, Patricia C. Hayashi, New York City, George A. Gonzales, Abilene, Tex., Richard T. Seymour, Wm. L. Robinson, Lawyers’ Committee for Civil Rights, Washington, D.C., for plaintiff-appellant.
Before BROWN, REAVLEY and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this employment discrimination action, the appellant, Joe T. Gonzales, argues that the district court erred in dismissing his complaint for his failure to sue the proper party within the required thirty-day statutory filing period. Based on the Supreme Court‘s decision in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), the district court held that Gonzales‘s amendment to his complaint naming the Secretary of the Air Force (“the Secretary“) as a defendant, the only proper party sued or served, did not relate back under
I
In December 1980, the Department of the Air Force (“the Department“) did not select Gonzales for a warehouse-foreman position at Goodfellow Air Force Base in Texas. Claiming discrimination on the basis of race and national origin, Gonzales filed a timely formal administrative claim on January 7, 1981. During the next four years, he diligently pursued his administrative remedies in accord with Department instructions and procedures. After exhausting his administrative remedies, Gonzales filed suit in the district court pursuant to Title VII of the Civil Rights Act of 1964, as amended,
On April 30, 1986, the Department moved to dismiss Gonzales‘s complaint, arguing that Gonzales had not complied with
After the district court granted leave to amend the complaint, the Supreme Court rendered its decision in Schiavone, 106 S.Ct. 2379. The district court granted the defendants’ motion to reconsider its previous order, and, based on Schiavone, granted the defendants’ motion to dismiss Gonzales‘s complaint. Gonzales v. Secretary of the Air Force, 638 F.Supp. 1323 (N.D.Tex.1986). The court held that because Gonzales did not serve the Department within the required thirty-day statutory period, there was no proper notice to the Department that could be imputed to the Secretary. Because no notice was given before the time limitation had expired, Gonzales could not amend his complaint to sue the proper party, and his complaint was dismissed. Id. at 1325. Gonzales appealed.
II
The district court correctly held that this case is controlled by Schiavone. In Schiavone, the plaintiffs timely sued Fortune Magazine for libel within New Jersey‘s one-year statute of limitations. “Fortune,” however, was only a trademark and the name of an internal division of Time, Incorporated (“Time“). The plaintiffs then attempted to serve process on Time‘s registered agent in New Jersey. The agent refused service because Time was not a named defendant in the suit. After the
The Supreme Court affirmed and set forth four factors upon which “relation back” of an amended pleading under Rule 15(c) depends:
(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.
Id. at 2384. The Court clearly stated that all four factors must be satisfied before relation back will apply. Id.
Like the plaintiffs in Schiavone, Gonzales has satisfied the first factor; the problem in this case lies with his satisfaction of the remaining factors. Reviewing the record, we have determined that the following dates are critical in the disposition of this case: (1) Gonzales received notice of the final agency decision on March 15, 1985, and he filed suit against the Department on April 12, 1985, within the thirty-day statutory time period; (2) on April 30, 1985, Gonzales served process on the Department, which was after the thirty-day time period had expired; (3) Gonzales served the United States Attorney on July 24, 1985; (4) the court permitted Gonzales to amend his complaint, adding the Secretary as a defendant, on May 21, 1986; and (5) Gonzales served the amended complaint on the Secretary on June 2, 1986.
The record thus shows that the means Gonzales used for notifying the defendants of his federal action was service of process on the Department, the United States Attorney, and the Secretary. As the above dates indicate, however, each party received this notice after expiration of the prescribed thirty-day limitations period of
The question before us, therefore, is whether the amendment adding the Secretary, the only proper defendant in this case, can relate back under Rule 15(c) to the original filing of the complaint so as to make the complaint against the Secretary timely. According to Schiavone, we must determine (1) whether the Secretary had sufficient notice of Gonzales‘s federal lawsuit such that no prejudice will result to the Secretary in maintaining his defense; and (2) whether the Secretary knew or should have known that the action brought against the Department would have been brought against him but for Gonzales‘s mistake concerning the named defendant in his complaint. Schiavone further instructs us that these two considerations must have been satisfied within the thirty-day limitations period of
The indisputable facts show that Gonzales gave notice to the Secretary of this Title VII action by serving process on the Secretary on June 2, 1986, more than one year after the thirty-day limitations period had expired. No colorable argument can be made that this belated notice satisfies the second and fourth factors of the Schiavone test. Furthermore, Gonzales‘s notice to the Department and the United States Attorney by service of process was also received after the prescribed limitations period. Having failed to notify the Department and the United States Attorney within the thirty-day period, Gonzales cannot argue, under Schiavone‘s third factor, that knowledge of his federal lawsuit is imputed to the Secretary. Because Gonzales failed to notify any party of this action within the statutory period, the Secretary could not have known that an action would have been brought against him but for Gonzales‘s mistake in naming
Gonzales argues, however, that the Secretary had “both formal and informal notice of Mr. Gonzales‘s action through the Air Force‘s active involvement at every stage of the administrative process.” Brief for Appellant at 22. According to Gonzales, because the Department and the Secretary had detailed knowledge of the more than four years of administrative litigation, the defendants were on notice that Gonzales would continue to seek relief in federal court. Although there is no dispute that Gonzales and the Department were involved in lengthy administrative battles for a number of years, the mere fact that administrative proceedings occurred cannot be construed as any kind of notice, whether “formal” or “informal,”3 of a subsequent federal lawsuit.
Finally, we note that the procedural posture of this case is not dissimilar to that of Schiavone. The plaintiffs in Schiavone filed suit in a timely manner, as did Gonzales, but did not serve any party until after the one-year statute of limitations had expired. The Court stated:
[N]otice to Time and the necessary knowledge did not come into being within the period provided by law for commencing the action against Time, as is so clearly required by Rule 15(c). That occurred only after the expiration of the applicable 1-year period. This is fatal, then, to petitioners’ litigation.
Schiavone, 106 S.Ct. at 2385. Similarly, Gonzales did not serve any party within the thirty-day statutory time period. Just as the Schiavone plaintiffs’ failure to provide notice to Time within the limitations period barred relation back of the amended complaint under Rule 15(c), Gonzales‘s failure to notify the Secretary properly also makes the relation back provision of Rule 15(c) inapplicable.4
III
In conclusion, Gonzales‘s failure to notify the Secretary “within the period provided by law for commencing the action against him” as required by Rule 15(c) precludes relation back of his amended complaint, naming the Secretary as defendant, to the date of the original pleading. The district court‘s dismissal of Gonzales‘s complaint is therefore
AFFIRMED.
JOHN R. BROWN, Circuit Judge, dissenting.
The majority‘s characterization of
After a four-year administrative bout with the Air Force, during which Gonzales and his attorney crossed each procedural hurdle successfully, Gonzales finally exhausted all appeals through the EEOC.
Gonzales came to the end of his administrative rope on March 15, 1985. According to the statute, he had “thirty days of receipt of notice of final action ... [to] file a civil action....”
The majority opinion reads the word “file” in the statute to mean “file and serve,” and that this implied service “requirement” must also be done within the thirty-day period. Simply stated, this is not what the statute says. The word “file” means just that—file.3 A suit is filed when the complaint, that is, the legal paper, is presented to and in the actual or constructive possession of the clerk of the court. Compare Leggett v. Strickland, 640 F.2d 774 (5th Cir.1981), with Jones v. Forest Oil Co., 663 F.2d 556 (5th Cir.1981) (applying Louisiana law, “suit is filed when it is timely placed in the hands of the clerk of a court of competent jurisdiction for filing“).
This court has held that filing a lawsuit within the period prescribed by statute is sufficient without the further requirement of service of process. See Caldwell v. Martin Marietta Corp., 632 F.2d 1184, 1188 (5th Cir.1980). It is beyond argument that Gonzales complied with
My strongest disagreement with the majority‘s opinion is their reliance on Schiavone and Rule 15(c) while utterly ignoring
In Schiavone, the plaintiff filed his complaint on May 9, 1982. The limitation period expired on May 19, 1982. Not until May 20, 1982, did plaintiff‘s counsel attempt to serve the defendants, and a proper complaint was not served until July 21, 1982. Therefore, “neither Fortune nor Time received notice of the filing until after the period of limitations had run. Thus, there was no proper notice to Fortune [the improper party] that could be imputed to Time [the proper party].” Schiavone, 477 U.S. at ---, 106 S.Ct. at 2384, 91 L.Ed.2d at 27. In the instant case, however, by correctly reading Rule 15(c) in conjunction with
The distinction is simple. In Schiavone, the Supreme Court relied on the New Jersey statute that required commencement of a law suit within the limitations period. Since no one was served within the prescribed limitations period, the suit was not “commenced.” Consequently, there was no party to relate back to. This is in sharp contrast to Gonzales’ suit: the federal statute requires only that a suit be filed within a thirty-day period.
Thus, since the suit was filed within the thirty-day period, we next look to see if service was proper. Under
First, Gonzales served the Department of the Air Force 18 days after filing his suit, well within the 120 day requirement. At oral argument, counsel for the Air Force conceded that at the moment the Air Force received notice of the suit, the Secretary received notice of the suit. The majority opinion implies—if it does not necessarily hold—that the Secretary did not receive notice until Gonzales amended his complaint naming the Secretary personally over a year later on June 2, 1986.
I am not so audacious, United States v. Holmes, 822 F.2d 481 (5th Cir.1987) (Brown, J., dissenting), to challenge Schiavone‘s holding that we are bound to use the four factors for “relation back” of an amended pleading under Rule 15(c). Rather, I find these factors are a help to Gonzales, not a hindrance.
(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 notice that it will not be prejudiced in maintaining its defense; (3) the 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, 477 U.S. at ---, 106 S.Ct. at 2384, 91 L.Ed.2d at 27.
Both parties agree the first requirement is met. As for the second, the “Secretary” received notice 18 days after the suit was filed, well within the 120 days allowed by Rule 4(j).
It is important to remember that even if the Secretary had been the named party, he, personally, probably never would have received notice of Gonzales’ routine Title VII claim. The Secretary, when sued solely in his official capacity, and the Air Force are functionally identical for purposes of this suit and this appeal. As far as Gon-
Whether the Air Force or some functionary in the office of the Secretary is served, the same people at the Department of the Air Force will process the summons, the same Air Force representative will appear in court, and the same entity will shoulder the burden of loss if Gonzales prevails. While historically, legal fictions have been utilized to meet the needs of justice, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), legal fictions should never be used to frustrate everyday realities. This fiction should not unjustly penalize a loyal government employee whose only mistake in prosecuting his good faith claim was that he, or his lawyer, failed to understand that even though his adversary throughout four years of EEOC administrative hearings had been “the Department,” suddenly, with no explanation, his opponent was transformed into “the Secretary.”
The Air Force representatives who received the first complaint naming “The Air Force” were, in all likelihood, the same people who received the amended complaint naming “The Secretary of the Air Force.” I cannot believe that the law tolerates such an absurdity that the Secretary was “prejudiced” by this mistake.
As to the third requirement, the knowledge of the mistakenly named defendant, it is easily met. No identity of interest and shared knowledge can be posited that is any closer than that between the Secretary and his Department. One commentator has advanced a helpful rule in these cases: “When plaintiff names an incorrect party, the courts probably will apply something akin to a reasonable [person] test to determine whether the party ‘should have known’ he was the one intended to be sued.”6 Under such a rule, Gonzales’ mistake should clearly not be fatal.
The fourth requirement wraps up the above-mentioned three as a neat package, since the other standards were met within the time period set out in
Gonzales also served the United States Attorney 100 days after the suit. That takes on a great importance when considered in light of
Without reading Rule 15(c) to operate after the expiration of the applicable statute of limitations, it would become a dead letter. “The principal purpose of Rule 15(c) is to enable a plaintiff to correct a pleading error after the statute of limitations has run if the correction will not prejudice [the real adversary] in any way.” Schiavone, 477 U.S. at ---, 106 S.Ct. at 2389, 91 L.Ed.2d at 33 (Stevens, J., dissenting). That purpose is defeated—and the statute becomes largely superfluous—if it is construed to require the correction to be made before the statute has run.
Looking at Rule 15(c) in this light, the majority clearly erred in requiring that this suit be filed and served within the thirty-day period for “relation back” of the amended complaint, and in ignoring the appropriateness of Rule 4(j) in this case. I
JOHN R. BROWN
CIRCUIT JUDGE