Peterson v. BMI Refractories ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 97-6097
D. C. Docket No. 95-N-2260-S
JIMMIE L. PETERSON;
ALONZO REESE,
Plaintiffs-Appellants,
versus
BMI Refractories,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
(January 13, 1998)
Before HATCHETT, Chief Judge, FAY and FARRIS*, Senior Circuit
Judges.
FAY, Senior Circuit Judge:
___________________________________________________________________
*Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth
Circuit, sitting by designation.
Former employees Jimmie L. Peterson and Alonzo Reese brought
this action in state court against employer B.M.I. Refractories,
Inc.,(“BMI”), alleging race discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-
17, and 42 U.S.C. § 1981, and alleging state law claims of breach
of contract, assault, battery, and outrage. After the removal of
the action to the District Court for the Northern District of
Alabama, plaintiffs amended their complaint to delete the breach of
contract claim. BMI moved for summary judgment on all remaining
counts. The plaintiffs conceded that the Title VII claim was
untimely, but opposed the summary judgment on the remaining claims.
The district court granted summary judgment and held that
plaintiffs’ § 1981 claim and plaintiffs’ state law tort claims were
preempted by § 301 of the Labor Management Relations Act in that
the claims were governed by a compulsory grievance and arbitration
procedure of their collective bargaining agreement. We reverse
and hold that the collective bargaining agreement at issue neither
bars litigation of plaintiffs’ § 1981 claim nor preempts
plaintiffs’ state law claims of assault, battery, and outrage.
I. Background
A. The Historical Facts
In this appeal by plaintiffs of BMI’s successful motion for
summary judgment, we view the evidence in the light most favorable
to the non-moving party. Counts v. American Gen. Life & Accident
2
Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997). Plaintiffs Jimmie L.
Peterson and Alonzo Reese are black males who were employed by BMI
at its Birmingham, Alabama facility. Peterson worked as a laborer
for BMI from 1990 or 19911 until his discharge on June 17, 1993.
Reese was employed by BMI from 1987, 1988, or 19892 until his
discharge on June 17, 1993. During their employment at BMI, both
Reese and Peterson were members of the Laborers International Union
of North America, AFL-CIO (the “Union”). The Union and BMI were
parties to a collective bargaining agreement (“CBA”), and this CBA
contained a grievance and arbitration procedure.
While employed by BMI, neither Reese nor Peterson ever
received any sort of oral or written reprimand from their employer
due to their job performance and neither individual was ever
disciplined due to poor job performance. At BMI, plaintiffs were
supervised by and reported to foreman Larry Chambliss. Chambliss,
in turn, reported to Larry Giangrosso, who in turn reported to
construction superintendent Bert Rolley.
In 1992, Reese was promoted to the position of labor foreman,
a position requiring Reese to supervise other laborers and work
alongside them. As a result of his promotion to foreman, Reese
received a higher wage. Reese held this position for over a year.
1
Peterson states in his affidavit that he began working for
the defendant in 1990. In his deposition, Peterson states he was
hired by the defendant in 1991.
2
In his affidavit, Reese states that he worked for the
defendant from 1987 to 1993. However, his deposition testimony
indicates that Reese worked for the defendant for six to eight
weeks in 1987, and returned to work for the defendant in 1988 or
1989, and stayed there for “around five years.”
3
A white individual, Wayne Cookley, was also a foreman. Without
notice or explanation, one day3 Reese stopped receiving the wage of
a foreman and his pay was reduced to that of a laborer. Wayne
Cookley continued receiving a foreman’s wage. Reese filed charges
with the Equal Employment Opportunity Commission (“E.E.O.C.”) as a
result of this incident.
Reese alleges that as a result of his filing a charge with the
E.E.O.C., BMI took steps to retaliate against him. Reese was
required to work under the supervision of Wayne Cookley, formerly
Reese’s equal, and James Giangrosso. According to the affidavits
and deposition testimony of Reese and Peterson, Giangrosso was a
major source of racial hostility in their workplace.4
The racial hostility and discrimination at BMI was not limited
to verbal abuse. Black employees were not given the same
opportunities to advance as white employees were given, black
employees were not given as many working hours as white employees
were given, and black employees were forbidden from using the
company trucks off of the premises while white employees were
3
The record does not indicate the date the lower wage went
into effect.
4
In his affidavit, Reese asserts that Giangrosso asked Reese
about the E.E.O.C. charge and told him he “went about it the wrong
way”; and that Giangrosso also commented on several occasions that
he “knew what [Reese’s] problem is, you’ve been here too long.”
Reese and Peterson, in their affidavits, state that Giangrosso made
racial taunts, often commenting to Reese when Reese was a labor
foreman that “you think you white, don’t you” and referring
repeatedly to Reese and Peterson and other black employees as
“nigger”, “boy”, and “you people”. In his affidavit, Giangrosso
denies the use of such language.
4
allowed to make use of such trucks.5
The racial hostility at BMI even reached the point of violence
and physical intimidation. Peterson and Reese describe an incident
where a black laborer, Willie Jordan, was kicked by Randy Mann, a
white brick mason, and plaintiffs testify that everyone in the
workplace knew of the attack and that BMI did nothing about it. On
another occasion, Mann grabbed Peterson in the presence of
Giangrosso and threatened to throw him off a fifty foot scaffold.
Giangrosso’s response, Peterson states in his affidavit, was to
laugh.
The incidents of racial hostility at BMI came to a head on
June 16, 1993, when Peterson and Reese were working the night shift
from 7 p.m. to 7 a.m.. Peterson was working with a white man from
Pittsburgh6 while trying to cut bricks. Peterson had seen the man
talking with Giangrosso earlier. The man from Pittsburgh and
Peterson exchanged words.7 After Reese and Peterson took their
lunch break, they returned to their work stations. Peterson and
Reese found that a pallet of gunnite bags had been overturned near
5
Larry Chambliss, a labor foreman at B.M.I., stated in his
affidavit that he was aware of the racially discriminatory
atmosphere in the workplace.
6
In his affidavit and in his deposition testimony, Peterson
indicates he did not know this man’s name. BMI disputes that this
man from Pittsburgh even existed.
7
Peterson asked the man to move his feet, which were in the
way. The man from Pittsburgh called Peterson a “nigger” and told
him that Peterson could not tell him what to do. Peterson told
the man not to call him nigger and the man replied “Oh you goddamn
nigger, you can’t tell me what to do. I’m an expert in this here.”
Again, Peterson asked the man to move his feet and the man got up
and left, saying “Goddamn you nigger boy.”
5
where they had been working. As Peterson bent over to pick up the
bags, Peterson was kicked in the behind by Giangrosso. 8 Peterson
did not report the kick to Rolley, the construction superintendent,
because Rolley was not at work that day.
Later that same shift, Reese and Peterson were heading to
clock out when they were approached by Giangrosso. Giangrosso was
driving his truck9 and another worker, Eddie Humphreys, was a
passenger in the vehicle. Giangrosso instructed Peterson to get in
the cab of the truck with him and instructed several workers,
including Reese, to climb in the back of the truck. In his
affidavit and in his deposition, Peterson states that Giangrosso
pulled a nine millimeter pistol out of the glove box of the truck,
pointed it in the general direction of Peterson, and said “You see
this here, well I just want you to see it, that’s all.”10 When the
truck stopped and Peterson and Reese got out, Giangrosso instructed
them to return to the work site at 3:00 p.m.
When Reese and Peterson returned to the site at 3:00 p.m.,
Chambliss gave them their final paychecks and said they were being
fired because Giangrosso told Rolley that the pair were no longer
8
Peterson claims in his affidavit that he was kicked, causing
his knees to buckle and causing him to fall to the ground.
Giangrosso testified in his deposition that he merely tapped
Peterson on the behind to get his attention. Chambliss, who
witnessed the incident, describes the contact as a “kick” in his
affidavit.
9
Giangrosso’s personal truck has a rebel flag on the front of
the vehicle where a license plate would go.
10
Giangrosso pointedly denies threatening Peterson with a
pistol. He does admit keeping a nine millimeter pistol in his
truck.
6
needed, and that they were fired because of the incidents that had
occurred the night before. The next day, Reese and Peterson went
to the Union office to see about filing a grievance to get their
jobs back. Joe Black, Secretary/Treasurer of the local chapter of
the Union, told them the Union would not get involved in the
matter.
B. THE COLLECTIVE BARGAINING AGREEMENT
The National Maintenance Agreement is the CBA between BMI and
the Union. Reese and Peterson, as employees of BMI and as members
of the Union, are employees covered by the terms and conditions of
this CBA. Of particular applicability to the issues before this
court are the provisions of Article III, (“Non-discrimination”),
and Article VI, (“Grievances”), of the CBA.
Article III, the only provision of the CBA arguably addressing
federal statutory rights, states:
1. The Union and the Employer agree to abide by
all Executive Orders and subsequent amendments
thereto, regarding the Civil Rights Act of 1964,
pertaining to non-discrimination in employment, in
every respect.
Article VI of the CBA outlines the grievance and arbitration
procedure which governs the resolution of work-related complaints
by employees. Paragraph 1 of Article VI of the CBA provides the
deadlines for filing grievances, the deadlines for pursuing appeals
of grievances, and allows for settlement of grievances at any step
of the grievance procedure. Paragraph 1 also explains each step of
7
the multi-step grievance procedure, with the final step being
binding arbitration by the American Arbitration Association.11 Once
a grievance reaches arbitration, “the arbitrator shall only have
jurisdiction and authority to interpret apply [sic] or determine
compliance with the provisions of this Agreement.”
C. The Procedural Facts
As this court noted in its recent decision Peterson v. BMI
Refractories, 124 F.3d 1386 (11th Cir. 1997), this case indeed has
a “tortured history.” Its procedural history is detailed at length
in that opinion; therefore, we add only what is necessary for the
resolution of this case. In light of the lengthy explanation of
the procedural history of this lawsuit in that opinion, we will
attempt to limit our explanation of the procedural history of this
suit to only the most necessary of facts. The original complaint
for this matter was filed in the Circuit Court of Jefferson County,
Alabama, on February 2, 1995. Plaintiffs Peterson and Reese
alleged race discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C.
§ 1981, and state law claims of breach of contract, assault,
battery, and outrage. The complaint was dismissed without
prejudice on June 9, 1995, for failure to serve the defendant, BMI.
The court clerk notified plaintiffs’ counsel on June 23, 1995 that
plaintiffs’ case had been dismissed and on June 28, 1995,
11
Arbitration by the American Arbitration Association only
becomes available under the terms of the CBA if the National
Maintenance Policy Committee, Inc., (step 4), fails to reach a
decision on the grievance.
8
plaintiffs filed a motion to reinstate the case. This motion was
granted by the state court on July 31, 1995. BMI was served on
August 3, 1995. BMI removed the action to the U.S. District Court
for the Northern District of Alabama on September 1, 1995. After
removal, plaintiffs dropped their breach of contract claim. BMI
moved for summary judgment on all counts. The magistrate judge
assigned to the case issued a report and recommendation that BMI’s
motion for summary judgment be granted on all counts.12
The district court entered an order granting BMI’s motion for
summary judgment and dismissing the action in all respects “WITHOUT
PREJUDICE to the right of any party to reopen the action following
completion of the grievance and arbitration proceedings, should
there remain any issues unresolved by arbitration” (emphasis in
original). The district court accepted and adopted the
recommendations of the magistrate judge with one exception -- the
district court found that the plaintiffs’ claims of assault and
battery were also preempted by the grievance and arbitration
procedure of the CBA. The plaintiffs filed a timely notice of
appeal on January 30, 1997.
12
The magistrate judge found the plaintiffs’ Title VII claims
were time-barred, and that the plaintiffs’ § 1981 claims were
preempted by the grievance and arbitration procedure of the CBA
that existed between the plaintiffs’ union and BMI. The magistrate
judge also found that BMI could not be held liable for the torts of
its supervisory employee because Giangrosso was not acting within
the line and scope of his authority and his actions were not in
furtherance of the business interests of BMI. On a separate motion
for summary judgment, the magistrate judge found the plaintiffs’
outrage claim was also preempted by the grievance and arbitration
procedure of the CBA.
9
II. Standard of Review
We review the district court’s grant or denial of a motion for
summary judgment de novo, applying the same standards as the
district court. Harris v. Bd. of Educ.of Atlanta, 105 F.3d 591 ,
595 (11th Cir. 1997). Summary judgment is appropriate if the
pleadings, depositions and affidavits show there is no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law. Counts, 111 F.3d at 108.
III. Discussion
BMI first contends that this court does not have jurisdiction
to hear this appeal. BMI argues that the district court order
dismissing plaintiffs’ claims without prejudice was not a final
order, since the district court left open the option of pursuing
the claims through arbitration. Second, BMI argues that even if
jurisdiction is found to exist, the district court acted
appropriately in finding that the plaintiffs’ § 1981 race
discrimination claim was preempted by the grievance and arbitration
procedure of the CBA. Third, BMI similarly contends that
plaintiffs’ state law claims of assault, battery and outrage depend
upon an interpretation of the CBA and are thus preempted by § 301
of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185.
Finally, BMI asserts numerous alternate grounds for upholding the
district court’s order.
Plaintiffs Peterson and Reese respond to BMI’s contentions as
follows. First, they argue the district court’s order was in all
respects a final order and as such was immediately appealable to
10
this court. Second, plaintiffs assert that this court’s July 21,
1997 decision in Brisentine v. Stone & Webster Eng’g Corp., 117
F.3d 519 (11th Cir. 1997), compels a reversal of the district
court’s dismissal of plaintiffs’ § 1981 race discrimination claim
for failure to pursue the grievance and arbitration procedure of
the CBA. Third, plaintiffs argue that plaintiffs state law claims
of assault, battery and outrage do not require an interpretation of
the CBA, and as such these claims are not preempted by the CBA.
Finally, plaintiffs dispute that BMI’s alternative grounds for
affirmance of the district court’s order compel an affirmance by
this court.
A. Jurisdiction
BMI contends that this court does not have jurisdiction to
hear this appeal because the district court has not entered a final
order in this case. Upon BMI’s motion for summary judgment, the
district court entered an order granting BMI’s motion for summary
judgment and dismissing the action in all respects “WITHOUT
PREJUDICE to the right of any party to reopen the action following
completion of the grievance and arbitration proceedings, should
there remain any issues unresolved by arbitration.” (emphasis in
original). BMI argues the language of the district court order
makes clear that this order is not a final order, but merely a
transfer order referring the case to arbitration. We disagree.
As plaintiffs have pointed out, in Kobleur v. Group
Hospitalization and Med. Serv., Inc., 954 F.2d 705, 708 (11th Cir.
1992), we unequivocally held that a “district court’s dismissal of
11
a case without prejudice for failure to exhaust administrative
remedies is a final order, giving an appellate court jurisdiction
under 28 U.S.C. § 1291.” As in Kobleur, the practical effect of
the district court’s order here is to deny the plaintiffs judicial
relief until they have exhausted their administrative remedies.
The district court’s order is even more “final” here and
plaintiffs’ argument is all the more compelling in that plaintiffs
would be denied access to the grievance and arbitration procedure
since the CBA requires that grievances be filed within ten days of
the occurrence. Therefore, the district court entered a final
order giving this court jurisdiction to hear the appeal under 28
U.S.C. § 1291.
B. § 301 Preemption of Plaintiffs’ § 1981 Claim
In Brisentine, decided earlier this year, this court
established a three part test to determine whether a mandatory
grievance and arbitration procedure in an employment contract bars
litigation of a federal statutory claim. Plaintiffs contend that
this test, articulated after the district court’s order dismissing
plaintiffs’ claims, requires a reversal of the district court’s
order dismissing the § 1981 claim. We agree.
42 U.S.C. § 1981 guarantees to all persons within the
jurisdiction of the United States “a panoply of individual rights
the primary one being the right to contract to earn a living.”
Vietnamese Fishermen’s Ass’n v. Knights of Ku Klux Klan, 518 F.Supp
993, 1008 (S.D. Tex. 1981). It is undisputed that to advance a
§ 1981 claim is to advance a federal statutory claim. Under the
12
law of this circuit, a mandatory arbitration clause does not bar
litigation of a federal statutory claim unless certain
requirements are met. The threshold requirement is that “the
employee must have agreed individually to the contract containing
the arbitration clause -- the union having agreed for the employee
during collective bargaining does not count.” Brisentine, 117 F.3d
at 526. Since all elements of the Brisentine test must be
satisfied in order for an arbitration clause to preempt a federal
statutory claim, we need not pursue our inquiry any further.13 The
record makes evident that the contract at issue containing the
arbitration clause was a CBA agreed upon by the Union but not by
the individual employees. For that reason, we must reverse the
district court’s dismissal of plaintiffs’ § 1981 claim.
C. § 301 Preemption and Plaintiffs’ State Law Claims
Plaintiffs also contend the district court erred in finding
that their state law claims of assault, battery, and outrage were
preempted by § 301(a) of the LMRA, which provides:
Suits for violation of contracts between an employer and
a labor organization representing employees in an
industry affecting commerce . . . may be brought in any
district court of the United States having jurisdiction
of the parties, without respect to the amount in
controversy or without regard to the citizenship of the
parties.
13
We reject the defendant’s contention that § 1981 claims are
somehow different from other federal statutory claims asserting
individual rights that fall under the protective scope of
Brisentine. Given that Title VII claims are covered by the
Brisentine test, it would be incongruous for us to treat § 1981
claims differently since in the past we have held that the elements
of a disparate treatment claim of employment discrimination under
§ 1981 and Title VII are identical. See Lincoln v. Bd. of Regents,
697 F.2d 928, 935 n.6 (11th Cir. 1983).
13
29 U.S.C. § 185(a).14 With regard to state tort claims, § 301
preemption requires this court to focus on whether the state tort
claim “confers nonnegotiable state-law rights on employers or
employees independent of any right established by contract, or,
instead, whether evaluation of the tort claim is inextricably
intertwined with consideration of the terms of the labor contract.”
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). It is
important to note that “not every dispute concerning employment, or
tangentially involving a provision of a collective-bargaining
agreement, is preempted by § 301 or other provisions of the federal
labor law.” Id. at 211.
In determining whether plaintiffs’ state law tort claims
require interpretation of the terms of the CBA, we must look to the
elements of each challenged state law claim. Lightning v. Roadway
Express, Inc., 60 F.3d 1551, 1557 (11th Cir. 1995).
1. Plaintiffs Assault and Battery Claims
Under Alabama law, an assault consists of “an intentional,
unlawful, offer to touch the person of another in a rude or angry
manner under such circumstances as to create in the mind of the
party alleging the assault a well-founded fear of an imminent
battery, coupled with the apparent present ability to effectuate
the attempt, if not prevented.” Allen v. Walker, 569 So.2d 350,
351 (Ala. 1990) (citations omitted). A battery has been defined by
the Alabama Supreme Court as follows: “A successful assault
14
For a more complete history regarding the development of the
§ 301 preemption doctrine, see Lightning v. Roadway Exp.,Inc., 60
F.3d 1551, 1556-1557 (11th Cir. 1995).
14
becomes a battery. A battery consists in an injury actually done
to the person of another in an angry or revengeful or rude or
insolent manner . . . to lay hands on another in a hostile manner
is a battery, although no damage follows.” Surrency v. Harbison,
489 So.2d 1097, 1104 (1986)(emphasis in original)(citations
omitted).
BMI contends that to determine whether BMI is liable for the
assault and battery committed by BMI supervisor Giangrosso15, a
court would necessarily have to interpret the CBA in order to
adjudicate the elements of each claim. This argument lacks merit.
Resolution of plaintiffs’ assault and battery claims involves a
purely factual inquiry that does not turn on the meaning of any
provision of the collective bargaining agreement. See Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 (1988).
Plaintiffs’ right to be free from assault and battery rests firmly
on a nonnegotiable state right and does not turn on any
interpretation of BMI’s collective bargaining agreement. See
Hayden v. Reickerd, 957 F.2d 1506, 1509 (9th Cir. 1992).
Accordingly, we reverse the district court’s order with regard to
plaintiffs’ assault and battery claims.
2. Plaintiffs’ Outrage Claim
Under Alabama law, to present a jury question on the tort of
outrage, or intentional infliction of emotional distress, “the
15
Plaintiffs’ assault claim arises from the incident in which
Giangrosso threatened Peterson with a nine millimeter pistol while
Peterson was a passenger in Giangrosso’s truck on June 17, 1993.
The battery claim is based on Giangrosso’s kicking of Peterson on
June 16, 1993.
15
plaintiff must present sufficient evidence that the defendant’s
conduct (1) was intentional or reckless; (2) was extreme and
outrageous; and (3) caused emotional distress so severe that no
reasonable person could be expected to endure it.” Thomas v. BSE
Indus. Contractors, Inc., 624 So.2d 1041, 1043 (Ala. 1993). BMI
contends that a construction of the CBA is essential to the
resolution of this claim, and as such, this claim is preempted.
BMI argues that the determination as to whether the employers’
actions were sufficiently outrageous to satisfy the second element
of this tort is dependent upon the employment context, and here
the employment context is largely dependent on the CBA. Given the
outrageous nature of the incidents at issue, BMI’s argument is
untenable.
An analysis of an employee’s outrage or intentional infliction
of emotional distress claim may very well require a court to
construct and interpret an employment contract or CBA in order to
properly ascertain the terms and conditions of that employee’s
employment. See Lightning, 60 F.3d at 1557. There are times,
however, when “the extreme and outrageous character of certain
sorts of employer conduct may be evident without reference to the
terms of a collective bargaining agreement.” Id. (citations
omitted). The employer conduct here rises to such a level.
The facts here are markedly similar to facts before this court
in Lightning, where the plaintiff was pursuing an intentional
infliction of emotional distress claim against his employer under
Georgia law. After outlining the physical and verbal abuse heaped
16
on the plaintiff by his employer, this court concluded that the
plaintiff’s claim “revolves around conduct by his employer that is
not even arguably sanctioned by the labor contract.” Id.(citations omitted). The same can be said for this case, where the
abuse by BMI supervisor Giangrosso consisted of racial taunts, an
assault with a pistol, and an incident where Giangrosso kicked
Peterson from behind with force sufficient to bring Peterson to his
knees. Abuse of this sort cannot arguably be sanctioned by the
terms of the CBA at issue, and as such a resolution of this tort
claim does not implicate the provisions of the CBA. See id.Accordingly, we reverse the order of the district court with
respect to plaintiffs’ state law claim for outrage.
D. BMI’s Alternative Grounds in Support of Dismissal
BMI raises seven alternative grounds in support of the
district court’s order granting summary judgment to BMI. Of these
seven grounds, we find that only the issue of the timeliness of
plaintiffs’ claims merits discussion. While plaintiffs concede
that their Title VII claims were untimely, BMI asserts that all of
plaintiffs claims were untimely. BMI points out that all of the
claims raised by plaintiffs are subject to a two year statute of
limitations,16 and that the acts complained of by plaintiffs
occurred on or before June 17, 1993. BMI does not dispute that the
plaintiffs filed a timely state court action on February 2, 1995,
16
See Ala. Code § 6-2-38(l) (1993) (personal injury actions
not specifically enumerated have a limitations period of two
years); see also Goodman v. Lukens Steel Co. , 482 U.S. 656, 661
(1987) (§ 1981 is governed by state personal injury statute of
limitations).
17
well within the two year statute of limitations. Instead BMI
argues that since the state court dismissed plaintiffs claims on
June 9, 1995, and plaintiffs did not move to reinstate their claims
until June 28, 1995, the plaintiff’s claims were not filed within
the two year statute of limitations. BMI characterizes the
reinstatement of plaintiffs’ case as being tantamount to the filing
of a new lawsuit, and cites Stinson v. Kaiser Gypsum Co., 972 F.2d
59 (3d Cir. 1992), for the proposition that such an action would be
time barred.17 While we do not disagree with the rule articulated
in Stinson, we find fault with BMI’s characterization of the
reinstatement of plaintiffs’ claim in state court as a “new”
action.
After plaintiffs had their state court case dismissed for
failure to serve the defendant, plaintiffs moved to have the case
reinstated. The reinstatement of the original suit was not the
commencement of the action, rather, the action was commenced with
the timely filing of the state court suit. The dismissal by the
state court was involuntary and without notice18, and the plaintiffs
promptly moved to reopen the suit. As such, the reinstatement by
the state court was not the initiation of a new action, but rather
the reopening of the original case. See Ford v. Sharp, 758 F.2d
17"If a timely filed action is dismissed after the limitations
period measured from the accrual of the claim, has run, a new
action on the same claim is time barred unless a limitations
savings statute provides otherwise.” Stinson, 972 F.2d at 62.
Alabama has no such savings statute.
18
Plaintiffs did receive notice of the dismissal on June 23,
1995, but BMI asserts the statute of limitations ran on June 17,
1995.
18
1018, 1024 (5th Cir. 1985). We hold, under these facts, that the
reinstatement of plaintiffs’ suit was not the initiation of a new
action and that plaintiffs’ § 1981 and state law tort claims were
timely filed.
IV. Conclusion
For the foregoing reasons, we VACATE the order granting
summary judgment and dismissing the state law claims and REMAND the
case for further proceedings consistent with this opinion.
REVERSED and REMANDED.
19