Dean Schomburg v. Dow Jones & Co Inc , 504 F. App'x 100 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2415
___________
DEAN WARREN SCHOMBURG,
Appellant
v.
DOW JONES & COMPANY, INC.; INDEPENDENT ASSOCIATION OF
PUBLISHERS OF EMPLOYEES, CWA LOCAL 1096, AFL-CIO, CLC
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 11-cv-03410)
District Judge: Honorable Anne E. Thompson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 7, 2012
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion Filed: November 14, 2012)
_________
OPINION
_________
PER CURIAM
Dean Warren Schomburg appeals from the District Court’s orders dismissing his
amended complaint against Dow Jones & Company, Inc. (“Dow Jones”) and denying
reconsideration of that ruling. We will vacate in part the order dismissing the amended
complaint and remand for further proceedings.
I.
Dow Jones employed Schomburg as a radio anchor for some fourteen years until
his employment terminated in 2008. On June 13, 2011, Schomburg filed suit pro se
against Dow Jones, apparently for racial discrimination, under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Schomburg used a form
complaint, which in paragraph eight states “The Equal Employment Opportunity
Commission [‘EEOC’] issued the attached Notice-Of-Right-To-Sue letter which was
received by you on ___, ___, ___.” In the accompanying blanks, Schomburg wrote
“March 8, 2011.”
Schomburg submitted his complaint along with an application for leave to proceed
in forma pauperis. The District Court denied that motion and dismissed the action
without prejudice for Schomburg’s failure to pay the filing fee. Schomburg later paid the
fee and filed an amended complaint in which he added his employees’ Union as a
defendant. He also asserted, in addition to his Title VII claim, claims for: (1) age
discrimination and involuntary retirement under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq.; (2) discharge in retaliation for union activities in
violation of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq.; and (3)
wrongful discharge in violation of a collective bargaining agreement under the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq. The amended complaint
did not contain any allegation concerning when Schomburg received his EEOC letter.
2
Dow Jones filed a Rule 12(b)(6) motion to dismiss the amended complaint. Dow
Jones sought dismissal of Schomburg’s Title VII and ADEA claims on the sole ground
that he had not filed suit within ninety days of March 8, 2011, the date on which he
initially alleged he had received his EEOC letter. See 42 U.S.C. § 2000e-5(f)(1) (Title
VII); 29 U.S.C. § 626(e) (ADEA). Dow Jones raised no other argument addressed to the
legal or factual sufficiency of those claims. In response, Schomburg filed a “Notice of
Motion for a Supplemental Pleading,” in which he asserted, inter alia, that the EEOC
letter was dated March 7, 2011, but that he had not actually received it until March 18,
2011. Schomburg provided no additional details in that regard, but it appears that his
new allegation of receipt would make his Title VII and ADEA claims timely. 1
By order entered March 27, 2012, the District Court construed Schomburg’s filing
as a motion for leave to amend his complaint, denied it as futile, and dismissed all claims
against Dow Jones. In relevant part, it dismissed Schomburg’s Title VII and ADEA
claims because he had not filed suit within ninety days after the date on which he initially
alleged he received his EEOC letter. The District Court acknowledged Schomburg’s
later assertion that he received the letter on a later date, but it held him to his initial
allegation on the ground that “a plaintiff is not permitted to take a contrary position to an
allegation in a complaint in order to avoid dismissal.” The Union filed a motion to
1
If Schomburg received the EEOC letter on March 8, 2011, as he initially alleged, then
his complaint was due to be filed by June 6, 2011. If Schomburg received it instead on
March 18, 2011, then his complaint was due to be filed by June 16, 2011. Schomburg’s
complaint is deemed filed for statute of limitations purposes on June 13, 2011, the date
on which he submitted it to the District Court along with his in forma pauperis
application. See McDowell v. Del. State Police, 88 F.3d 188, 191 (3d Cir. 1996).
3
dismiss the claims against it as well, and the District Court granted that motion on April
20, 2012.
After the District Court granted Dow Jones’s motion to dismiss, Schomburg filed
a timely motion for reconsideration of that ruling. Schomburg repeated his assertion that
he had not received the EEOC letter until March 18, 2011, and he claimed that he
mistakenly wrote March 8 because he is a first-time litigant and was nervous while filling
out the form complaint at the court house. He also attributed the delay in receiving the
letter to alleged delays in mail delivery in New Jersey caused by severe weather, and he
attached an executive order declaring a state of emergency beginning on March 9, 2011.
The District Court denied that motion on May 7, 2012, and Schomburg appeals pro se. 2
II.
Schomburg’s sole arguments on appeal are addressed to the District Court’s ruling
that his Title VII and ADEA claim are untimely because he did not file suit within ninety
days of March 8, 2011, the date on which he initially alleged he received the EEOC
letter. In particular, he argues that his initial allegation was mistaken and that the District
Court should have allowed him to amend his complaint to allege that he received the
2
Schomburg did not mention the District Court’s order dismissing his claims against the
Union in his notice of appeal, and he has raised no arguments addressed to those claims
in his briefs. Schomburg also has raised no argument as to the District Court’s dismissal
of his NLRA or LMRA claims against Dow Jones. We thus deem any challenge to those
rulings waived. We have jurisdiction under 28 U.S.C. § 1291. Schomburg’s timely
appeal from the denial of reconsideration brings up for review the District Court’s
underlying order dismissing his complaint and denying leave to amend. See Long v.
Atlantic City Police Dep’t, 670 F.3d 436, 446 n.20 (3d Cir. 2012). We exercise plenary
review over the District Court’s dismissal of Schomburg’s complaint and review the
4
letter instead on March 18, 2011. We agree.
District courts “should freely give leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a)(2). As this language suggests, “[a] liberal policy toward allowing
amendment to correct errors in the pleadings clearly is desirable and furthers one of the
basic objectives of the federal rules—the determination of cases on their merits.” 6
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1474 (3d ed.
2008). Thus, leave to amend ordinarily should be denied only when amendment would
be inequitable or futile. See Great W. Mining & Mineral Co., 615 F.3d at 174. “This
approach ensures that a particular claim will be decided on the merits rather than on
technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990).
The District Court acknowledged this general policy but reasoned that, “[a]lthough
leave to amend should be freely given in most instances, a plaintiff is not permitted to
take a contrary position to an allegation contained in a complaint to avoid dismissal.” In
doing so, the District Court relied on two of our decisions for the proposition that
Schomburg’s initial allegation is a binding judicial admission. See Sovereign Bank v.
BJ’s Wholesale Club, Inc., 533 F.3d 162, 181 (3d Cir. 2008); Parilla v. IAP Worldwide
Servs. VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004). Neither of those decisions, however,
involved the question of whether a plaintiff could amend a complaint to cure a purported
factual mistake. 3 And even if Schomburg’s initial allegation constituted a judicial
denial of both leave to amend and reconsideration for abuse of discretion. See Great W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010).
3
In Sovereign Bank, an appellant attempted to take a legal position on appeal that was
contradicted by an allegation in its complaint, and we held that the allegation was a
5
admission, it does not follow that he may not amend it.
To the contrary, many courts, including ours, have recognized that judicial
admissions may be withdrawn by amendment. See, e.g., 188 LLC v. Trinity Indus., Inc.,
300 F.3d 730, 736 (7th Cir. 2002) (rejecting argument that an initial allegation was
conclusive despite a later amendment taking a contrary factual position because “[w]hen
a party has amended a pleading, allegations and statements in earlier pleadings are not
considered judicial admissions”); American Title Ins. Co. v. Lacelaw Corp., 861 F.2d
224, 226 (9th Cir. 1988) (“Factual assertions in pleadings . . ., unless amended, are
considered judicial admissions conclusively binding on the party who made them.”)
(emphasis added); Giannone v. U.S. Steel Corp., 238 F.2d 544, 547 (3d Cir. 1956)
(recognizing that “withdrawn or superseded pleadings” do not constitute judicial
admissions). Disallowing amendment merely because an existing allegation constitutes a
judicial admission is contrary to the liberal amendment policy embodied in Rule 15(a)(2).
Nor was denial of leave to amend warranted merely because Schomburg sought to
“take a contrary position . . . to avoid dismissal.” Plaintiffs routinely amend complaints
in order to correct factual inadequacies in response to a motion to dismiss. See 6 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1474 (3d ed. 2008)
(“Perhaps the most common use of Rule 15(a) is by a party seeking to amend in order to
cure a defective pleading.”). That is so even when the proposed amendment flatly
binding judicial admission for that purpose. See Sovereign Bank, 533 F.3d at 181. In
Parilla, we denied the appellee’s motion to dismiss an appeal for lack of standing
because, inter alia, factual concessions in her own complaint revealed the basis for
appellants’ standing. See Parilla, 368 F.3d at 275.
6
contradicts the initial allegation, as in this case. See, e.g., 188 LLC, 300 F.3d at 734-36
(noting that District Court permitted the plaintiff to amend complaint to assert a
contradictory factual position in response to a Rule 12(b)(6) motion and holding that
earlier allegation was no longer a binding judicial admission in light of that amendment);
cf. Gray v. Phillips Petroleum Co., 858 F.2d 610, 612 (10th Cir. 1989) (noting that
ADEA plaintiff amended complaint as of course in response to motion to dismiss to
“change[] the date of the alleged discriminatory action” for statute of limitations purposes
in order to “ma[k]e the filing of the discrimination charge timely under the pleadings”). 4
This is not to say that a party’s assertion of contrary factual positions in the
pleadings is without consequence. Under certain circumstances, an earlier pleading may
be offered as evidence rebutting a contrary assertion in a later pleading. See 188 LLC,
300 F.3d at 736; Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir. 1996); Andrews v.
Metro N. Commuter R.R. Co., 882 F.2d 705, 707 (2d Cir. 1989). We express no opinion
on whether Schomburg’s initial complaint will be admissible for any purpose, but we
note that the inconsistency between his two allegations at most creates an issue of fact.
See Huey, 82 F.3d at 333. It is not a reason to deny leave to amend.
Instead of relying on these technicalities, the District Court should have evaluated
4
Dow Jones relies on unpublished District Court authority for the proposition that
Schomburg “is bound by the admissions made in his original complaint and cannot
simply erase these details by omitting them from his amended complaint.” Davis v.
Williamson, No. 4:08-cv-2009, 2009 WL 136815, at *4 n.4 (M.D. Pa. Jan. 20, 2009).
The plaintiff in that case, however, expressly stood on his amended complaint and did not
seek leave to further amend, like Schomburg, in order to affirmatively correct an alleged
mistake in his prior pleading. See id. at *3.
7
Schomburg’s request for leave to amend under the liberal Rule 15(a)(2) standard, which
generally permits amendments unless they are inequitable or futile. We cannot say that
Schomburg’s proposed amendment would be inequitable or futile here. Schomburg
asserts that he received the EEOC notice on March 18, 2011, but inadvertently wrote the
date as March 8 because, as a first-time litigant, he was nervous while filling out the form
complaint at the courthouse. Schomburg further asserts that extreme weather explains
why he did not receive the EEOC notice until eleven days after the EEOC issued it on
March 7, and he offered some support. 5 Dow Jones argues that these assertion are
insufficiently supported as an evidentiary matter to rebut the presumption that
complainants receive EEOC letters within three days after mailing. See Seitzinger v.
Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). The very cases on which
Dow Jones relies, however, reveal that these arguments are premature. See, e.g., Payan
v. Aramark Mgmt. Servs. Ltd. P’Ship, 495 F.3d 1119, 1126-27 (9th Cir. 2007)
(addressing date of receipt of EEOC letter on summary judgment); Seitzinger, 165 F.3d
at 239 (same). Schomburg’s assertions are not so improbable that they need not be taken
as true for present purposes, and neither the District Court nor Dow Jones have suggested
otherwise. See Great W. Mining & Mineral Co., 615 F.3d at 175 (“The standard for
assessing futility is the same standard of legal sufficiency as applies under Rule
12(b)(6).”) (quotation marks and alterations omitted). Nor do we see any indication that
5
Schomburg frames this issue as one of “equitable tolling,” but his assertions do not
implicate that doctrine. Schomburg’s assertions relate to the date on which he received
the EEOC letter that started the ninety-day clock, not to any potentially excusable delay
in filing suit thereafter.
8
permitting Schomburg to amend his complaint would be inequitable. To the contrary,
Schomburg promptly moved to correct his initial allegation after Dow Jones first raised
the issue in its motion to dismiss. We express no opinion on the truth of Schomburg’s
assertions or the merits of his underlying claims. We conclude, however, that the District
Court should have allowed him to amend his complaint to allege a date that might make
those claims timely and thus might permit a resolution on the merits.
For these reasons, we will vacate the District Court’s order of March 27, 2012, to
the extent that it denied Schomburg’s motion to amend his Title VII and ADEA claims
against Dow Jones and remand for the District Court to permit him to amend his
complaint as to those claims only.
9