filed: July 18, 1977; As Amended August 10, 12, 1977.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Gibbons and Garth, Circuit Judges and Cohen,*fn* District Judge. Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, and Garth, Circuit Judges. Chief Judge Seitz concurs in the result. Adams, Circuit Judge, concurring. Gibbons, Circuit Judge, dissenting.
This appeal arises from consolidated employment discrimination actions which the plaintiff, Mrs. Carol J. Walton, initiated against her former employer, the Eaton Corporation. Mrs. Walton, a black female, alleged that Eaton had discriminated against her because of her race and sex and that it had therefore violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. After a non-jury trial, the district court made detailed findings of fact and entered judgment in favor of Eaton. Mrs. Walton appealed.
On appeal, Mrs. Walton argued that the judgment of the district court should be reversed for five reasons. She maintained that the district court erred 1. in refusing to permit a jury trial on her claims under 42 U.S.C. § 1981,*fn1 2. in determining that her discharge was not discriminatory or a reprisal, 3. in determining that she had not been discriminated against in pay, 4. in denying her motion for class action certification as untimely, and 5. in refusing to admit into evidence the findings of fact and the determination made by the Equal Employment Opportunity Commission.
This appeal was originally heard by a panel of this Court. Prior to the filing of a panel opinion, the Court voted to consider the appeal in banc.*fn1a We affirm the judgment of the district court. Of the five arguments advanced by Mrs. Walton, only the first - the propriety of the district court's refusal to permit a jury trial on her claims under 42 U.S.C. § *fn19811b - requires extended discussion.
We have concluded that the district court did not err in refusing to permit a jury trial on Mrs. Walton's claims under 42 U.S.C. § 1981.
Mrs. Walton initiated two separate employment discrimination actions against the defendant-appellee, Eaton Corporation. Both were filed in the District Court for the Eastern District of Pennsylvania.
Mrs. Walton initiated her first employment discrimination action against Eaton (Civil Action 73-322) on February 14, 1973. That suit was brought as a class action in which Mrs. Walton sought to represent all blacks and females who (a) were employed by Eaton at that time, (b) had sought employment with Eaton during the past eight years, or (c) would seek employment with Eaton in the future. Mrs. Walton asserted causes of action under 42 U.S.C. §§ 1981 and 1983, as well as under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She alleged that, because she was black and female, Eaton had discriminated against her in many respects. She claimed that she had been denied equal treatment with respect to pay, promotions, and opportunities to obtain educational benefits. She also alleged that she had been harassed on the job and that she was discriminatorily discharged. Finally, she claimed that Eaton had systematically discriminated on the basis of race and sex. She sought declaratory and injunctive relief, an award of back pay for herself and all other members of the classes she sought to represent, attorney's fees, punitive damages, costs, and "such other relief as the Court may deem proper." Her complaint in Civil Action 73-322 expressly waived trial by jury. Eaton filed a timely answer, which did not seek a jury trial, and Mrs. Walton did not demand a jury trial within ten days thereafter.*fn2
At some point in early 1974 it appears that a second set of attorneys began to represent Mrs. Walton. Apparently not satisfied with the complaint filed by her first attorneys, the new attorneys, rather than seeking to amend the first complaint, initiated a second employment discrimination action (Civil Action No. 74-373) against Eaton on February 14, 1974, exactly one year after the first complaint was filed. In almost all respects Mrs. Walton's second complaint was indistinguishable from her first. Like her first complaint, it asserted causes of action under 42 U.S.C. §§ 1981 and 1983 and Title VII. In addition, the second complaint, like the first, alleged that Mrs. Walton had been harassed, discharged, and denied equal treatment in pay, promotions, and educational opportunities because of her race and sex. However, Mrs. Walton's second complaint did differ from her first in three respects: it was not brought as a class action; it contained a general demand for a trial by jury; and this second complaint, unlike the first, alleged that Mrs. Walton had suffered "emotional and mental injury" as a result of the defendant's action. Consequently the second complaint apparently sought compensatory damages,*fn3 while the first complaint sought only punitive damages.
On July 3, 1974, the district court, on its own motion, consolidated the two actions. On November 19, 1974, nine months after the second complaint was filed and one year and nine months after the first complaint was filed, Mrs. Walton moved to have her first employment discrimination action (Civil Action 73-322) certified as a class action. The district court denied this motion on December 17, 1974.
At the outset, it is clear that Mrs. Walton had no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant. United States v. Haytian Republic, 154 U.S. 118, 123-24, 38 L. Ed. 930, 14 S. Ct. 992 (1894); Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849, 851 (1st Cir. 1947) (Clark, J., sitting by designation); 1A J. Moore, Federal Practice P 0.219 at 2601 (2d ed. 1974); P. Bator, P. Mishkin, D. Shapiro, H. Wechsler, Hart & Wechsler's The Federal Courts in the Federal System 1232-33 (2d ed. 1973).
When the district court became aware that the two actions begun by Mrs. Walton were virtually identical, it could have dismissed her second complaint without prejudice or it could have stayed proceedings in the second action until judgment was entered in the first. Id. As Judge Charles E. Clark wrote:
'The pendency of a prior pending action in the same federal court is grounds for abatement of the second action. '.. There is no reason why a court should be bothered or a litigant harassed with duplicating lawsuits on the same docket. . . . (Citations omitted.)
Sutcliffe Storage & Warehouse Co. v. United States, supra at 851. Obviously, if the district court had dismissed the second complaint or stayed the second action, Mrs. Walton would have had no right to a jury trial.*fn4 However, instead of following either of those procedures, the district court on its own motion consolidated the two actions.
The district court's decision to consolidate Mrs. Walton's two actions was obviously unobjectionable. When a court learns that two possibly duplicative actions are pending on its docket, consolidation may well be the most administratively efficient procedure. If the second complaint proves to contain some new matters, consolidation - unlike dismissal of the second complaint without prejudice or staying the second action - will avoid two trials on closely related matters. If, on the other hand, the second complaint proves to contain nothing new, consolidation of the two actions will cause no harm provided that the district court carefully insures that the plaintiff does not use the tactic of filing two substantially identical complaints to expand the procedural rights he would have otherwise enjoyed. In particular, the court must insure that the plaintiff does not use the incorrect procedure of filing duplicative complaints for the purpose of circumventing the rules pertaining to the amendment of complaints, Fed. R. Civ. Proc. 15, and demand for trial by jury, Fed. R. Civ. Proc. 38.
In the instant case, we are convinced that, in considering whether Mrs. Walton waived her right to trial by jury, the filing of the second complaint and its consolidation with the first must be regarded as an amendment of the first complaint. If Mrs. Walton's second set of attorneys was dissatisfied with the first complaint filed by her previous counsel, the proper procedure for them to have followed would have been to have sought leave of court to amend the first complaint.*fn5 The adoption of an incorrect procedure as employed in this case should not result in a greater right to trial by jury than would have been available had the correct course of amending the first complaint been followed. In light of the sequence of events described above, it is evident that Mrs. Walton's second complaint must be regarded as no more than an amendment to her first complaint. As such, it is clearly apparent that she waived her right to trial by jury on her claims under 42 U.S.C. § 1981.
It is well established that if the original pleadings in an action effectively waive trial by jury under Fed. R. Civ. Proc. 38(b) and (d), the right to trial by jury of all matters contained in those pleadings cannot be revived by amending the original pleadings. Hostrop v. Board of Junior College District No. 515, 523 F.2d 569, 581 (7th Cir. 1975); Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045, 1049 (9th Cir. 1974); Lanza v. Drexel & Co., 479 F.2d 1277, 1310 (2d Cir. 1973); Olund v. Swarthout, 459 F.2d 999, 1000 (6th Cir. 1974); Williams v. Farmers & Merchants Ins. Co., 457 F.2d 37, 38 (8th Cir. 1972); Connecticut General Life Insurance Co. v. Breslin, 332 F.2d 928, 931 (5th Cir. 1964); American Fidelity & Casualty Co. v. All American Bus Lines, Inc., 190 F.2d 234, 237-38 (10th Cir. 1951); Fontaine v. Tasty Baking Co., 20 Fed. R. Serv. 2d 490 (E.D. Pa. 1975); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2320 at 94-95 (1971); 5 J. Moore, Federal Practice P 38.39 at 321-22 (2d ed. 1976). Cf. Pennsylvania ex rel. Feiling v. Sincavage, 439 F.2d 1133 (3d Cir. 1971) (amendment to complaint adding new plaintiff did not revive previously waived right to jury trial). Jury trial may be demanded for any "new issues" raised by the amended pleadings, "but the amendment does not revive a right, previously waived, to demand jury trial on the issues already framed by the original pleadings." 9 C. Wright & A. Miller, Federal Practice and Procedure § 2320 at 94-95 (1971).
In this case, Mrs. Walton unquestionably waived her right to trial by jury on all issues framed by her original complaint.*fn6 The only addition to the second complaint which could even arguably constitute a "new issue" was the allegation that Mrs. Walton had suffered mental and emotional injury.*fn7 We are convinced, however, that that allegation cannot be accurately characterized as a "new issue" in the sense relevant here.
As we read the established case law, it holds that amended pleadings which concern "the same general issues" as the previous pleadings do not raise "new issues" under Fed. R. Civ. Proc. 38(b), even if they differ from the earlier pleadings in some particulars. Hostrop v. Board of Junior College District No. 515, 523 F.2d 569, supra, at 580-81; Trixler Brokerage Co. v. Ralston Purina Co., supra, at 1049-50; Lanza v. Drexel & Co., supra, at 1309-11; Connecticut General Life Insurance Co. v. Breslin, supra, at 931 (5th Cir. 1964); Alcoa S. S. Co. v. Ryan, 211 F.2d 576, 578 (2d Cir. 1954); Moore v. United States, 196 F.2d 906, 908 (5th Cir. 1952); Roth v. Hyer, 142 F.2d 227, 228 (5th Cir. 1944); American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 45 FRD 38, 39-40 (S.D. N.Y. 1968); Sleeman v. Chesapeake & Ohio Railroad Co., 263 F. Supp. 117, 118-19 (W.D. Mich. 1967); Southern Equipment Co. v. Christensen, 40 FRD 126, 127 (S.D.N.Y. 1966); Railex Corp. v. Joseph Guss & Sons, Inc., 40 FRD 119, 123-24 (D. D.C. 1966), aff'd 127 U.S. App. D.C. 230, 382 F.2d 179 (D.C. Cir. 1967) (issue apparently not raised on appeal); Leighton v. New York, Susquehanna and Western RR Co., 36 FRD 248 (S.D. N.Y. 1964); New Hampshire Fire Insurance Co. v. Perkins, 28 FRD 588, 590-91 (D. Del. 1961); E.H. Tate Co. v. Jiffy Enterprises, 16 FRD 571 (E.D. Pa. 1954); Annot. 18 ALR Fed. 754, §§ 6-7 (1974).
The most illuminating case on this point is Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973). In that case, the owners of all the stock of the Victor Billiard Company conveyed those shares to the BarChris Construction Company in exchange for BarChris stock. Prior to the transfer, BarChris officers supplied an annual report, a prospectus, and other financial reports concerning BarChris to the owners of the Victor stock. When BarChris filed a petition in bankruptcy less than one year after the exchange, the former owners of the Victor stock commenced an action for compensatory damages against former officers and directors of BarChris under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 CFR § 240.10b-5. One of the defendant-officers, Kircher, waived his right to trial by jury on claims framed by this complaint. Two years after their original complaint was filed, the plaintiffs amended their original complaint by adding an allegation that the prospectus which had been supplied to them was false on the date of issue. In response to this amendment, Kircher made a timely demand for trial by jury. A year and one-half later, the plaintiffs again amended their complaint. The new amendments 1. alleged that the defendant's conduct had violated Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), 2. alleged that the defendants' conduct had been willful, and 3. requested punitive damages. In response, Kircher again made a timely demand for trial by jury. Nevertheless, the district court denied Kircher's application for a jury trial, and the Second Circuit affirmed. The Court wrote:
The amendments did not raise new issues within the meaning of Rule 38 such as would entitle Kircher to demand a jury trial as of right. The case involved, and the original complaint raised, one basic issue : Whether plaintiffs were fraudulently induced to exchange their Victor stock. Kircher's failure to demand a jury trial waived his right as to all issues relating to this general area of dispute. The amendment added no new issues: the same conduct and the same allegedly false documents constituted the basis for any claim under Rule 10b-5, Section 17(a), or common law fraud. The willfulness and falsity as of a particular date merely clarified " the same general issues " raised in the original complaint. Moore v. United States, 196 F.2d 906, 908 (5th Cir. 1952). Kircher had been put on notice of the underlying facts and basic legal theory - fraud - upon which plaintiffs sought relief, and the character of the suit was in no way changed by the amendments.
(Emphasis added.) Id. at 1310.
It seems clear that the reasoning in Lanza, which we find persuasive, defeats Mrs. Walton's claim that she was entitled to a jury trial in this case. Under Lanza, the allegation that Mrs. Walton had suffered "emotional and mental" injury would not constitute a "new issue." In the language of Lanza, the addition of that allegation did not change the "basic issue" or the "general area of dispute," i.e., whether Eaton discriminated against Mrs. Walton while she was in the company's employ. The second complaint here concerned the "same conduct" on the part of Eaton as the first complaint, i.e., that Eaton discriminatorily discharged Mrs. Walton; that Eaton employees harassed her on the job; and that Eaton discriminated against her with respect to pay, promotions, and opportunities to obtain educational benefits. Moreover, the addition in this case of the allegation that Mrs. Walton suffered "mental and emotional injury" is analogous to the amendment in Lanza which alleged for the first time that the defendants had acted willfully. Both "amendments" pleaded facts which had not been alleged in the previous complaints, but neither raised a "new issue," since they did not change the "basic issue" in the case or the "general area of dispute."
In sum, under the sound reasoning of Lanza and the other authorities treating with this point, it is obvious that no "new issue" was added by Mrs. Walton's second complaint*fn7a and that therefore her first complaint with its express jury waiver did not entitle her dispute with Eaton to be resolved by a jury.*fn7b
We do not believe that any of the other arguments advanced by Mrs. Walton are meritorious. In determining that Mrs. Walton's discharge was neither discriminatory nor a reprisal, the district court applied the correct standard of law*fn8 and its findings of facts were not "clearly erroneous."*fn9 The same is true of the district court's determination that Mrs. Walton had not been discriminated against in pay.*fn10
We are convinced that the district court did not abuse its discretion in denying Mrs. Walton's motion for a class action determination, since that motion was not made until 21 months after her first complaint was filed.*fn11 Finally, we believe that the district court did not abuse its discretion by refusing to admit the EEOC's findings of fact and its determination on the merits of Mrs. Walton's charges.*fn12 Gillin v. Federal Paper Board Co., Inc., 479 F.2d 97, 99 (2d Cir. 1973); Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972).
For the reasons expressed above, the judgment of the district court will be affirmed.
The judgment of the district court will be affirmed.
ADAMS, Circuit Judge, concurring:
I concur in the judgment of the Court for the reasons set forth in Parts IC and II of Judge Garth's opinion.
Essentially, I agree with the proposition, implicit in the dissent, that we must be circumspect when dealing with the constitutional right to a jury trial. Nonetheless, even if we were to accept the dissent's analysis of the "same issue" question, we ultimately would have to face the hard fact that the district court made findings that Eaton did not engage in discriminatory activity-findings which would preclude a conclusion that section 1981 was violated. Since the predicate for an award of damages for emotional and ...