On Appeal from the United States District Court for the Western District of Pennsylvania Pittsburgh, D.C. Civil Action No. 86-1248.
Higginbotham, Hutchinson and Scirica, Circuit Judges. Hutchinson, Circuit Judge, dissenting.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Evelyn Dandrea appeals from the district court's decision denying her request to amend her complaint under Fed. R. Civ. P. 15(a) and granting appellee's motion to dismiss under Fed. R. Civ. P. 12(b)(2) (lack of personal jurisdiction), 12(b)(4) (insufficiency of process) and 12(b)(5) (insufficiency of service). Appellee Malsbary Manufacturing Company ("Malsbary"), now called Koppenhafer Corporation, is Dandrea's former employer. Dandrea claims that Malsbary terminated her employment in willful violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (1982 & Supp. II 1984 & Supp. III 1985) and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219 (1982 & Supp. III 1985). Dandrea sued Malsbary under its former, not its current, name. The district court held that any amendment of the complaint changing the name of the defendant would not relate back under Fed. R. Civ. P. 15(c) to the date of Dandrea's original complaint. The district court based this holding on its conclusion that Malsbary did not receive notice of the action within the period provided by law for its commencement. We conclude that because the proposed amendment to Dandrea's complaint would not change a party to this action, Dandrea's amendment relates back under Rule 15(c) to the institution of this action. Accordingly, we will reverse the district court's decision dismissing Dandrea's action and denying leave to amend her complaint, and remand this matter for further proceedings.
The underlying facts, insofar as they relate to the dismissal motion, are not contested by the parties. Evelyn Dandrea was sixty-one when Malsbary discharged her on June 17, 1983. She worked for the company for more than nineteen years in various clerical positions. Dandrea, contending that Malsbary retained one or more younger employees in her stead, filed an age discrimination charge with the Equal Opportunity Employment Commission ("EEOC") on December 19, 1983, naming Malsbary as the prospective defendant. Malsbary filed a response denying Dandrea's charge. The EEOC, after issuing a probable cause finding, entered into conciliation negotiations with Malsbary. On April 25, 1986, the EEOC stated by letter that its efforts at conciliation had been unsuccessful, that further conciliation would not be attempted, and that the EEOC would not institute a lawsuit.
On October 4, 1985, seven months before the EEOC's letter, Malsbary, a wholly owned subsidiary of Carlisle Corporation, changed its name to Koppenhafer Corporation. Malsbary's application to change its name was granted by the State of Delaware on October 4, 1985, and an amended certificate of authority was issued by the Commonwealth of Pennsylvania on October 7, 1985, authorizing Malsbary to do business in Pennsylvania under the name of Koppenhafer Corporation. Also on October 4, 1985, Malsbary sold its assets to Mintex International Corporation ("Mintex"). Mintex has continued to operate the Uniontown, Pennsylvania facility where Dandrea worked. It uses the name "Malsbary" in business dealings. There exists no corporation or legal entity currently known as "Malsbary Manufacturing Company."
On June 12, 1986, five days prior to the end of the three-year limitations period.*fn1 Dandrea filed a complaint in the district court alleging violations of both the ADEA and FLSA. The complaint named Malsbary Manufacturing Company as the defendant. That same day, Dandrea's attorney sent a copy of the summons and complaint by regular mail to the Lincoln, Nebraska attorney who represented Malsbary in the EEOC proceedings. On June 18, 1986, the day after the ADEA's three-year statute of limitations had run, the Nebraska attorney returned the documents with a letter stating that his firm no longer represented Malsbary Manufacturing Company.*fn2 On July 30, 1986, Dandrea's counsel served Malsbary by certified mail. Counsel for Malsbary accepted service by signing the notice and acknowledgment of receipt of the summons and complaint on August 15, 1986, which Dandrea filed in timely fashion with the district court on August 28, 1986. Service thus occurred within the Fed. R. Civ. P. 4(j) 120 day limit for service of a defendant in a federal action. See generally Green v. Humphrey Elevator, 816 F.2d 877 (3d Cir. 1987).
On September 3, 1986, Malsbary filed its motion urging dismissal under Fed. R. Civ. P. 12(b)(2), 12(b)(4), and 12(b)(5). It argued that there is no corporation known as Malsbary Manufacturing Company, that the district court could not have personal jurisdiction over a non-existent defendant, and that there could not be sufficient service of process with respect to a non-existent defendant. Dandrea replied that the corporation known as Malsbary Manufacturing Company had not ceased to exist but continued to do business, having changed its name to Koppenhafer Corporation. She also sought to amend her complaint to include Malsbary's new name.*fn3
The district court found that the corporation named as the defendant did not exist, having changed its name from Malsbary Manufacturing Company to Koppenhafer Corporation, and concluded that it therefore had no jurisdiction over the defendant. The district court also ruled that it could not permit Dandrea to file an amended complaint including the corporation's new name. Such an amendment, the district court held, would be barred by the three-year statute of limitations for age discrimination actions, and would not, under Rule 15(c) and the Supreme Court's decision in Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379, 91 L. Ed. 2d 18 (1986), relate back to the date of Dandrea's original pleading because the defendant corporation did not receive notice of the institution of Dandrea's action until after the statute of limitations had run.
On appeal, Dandrea argues that the district court erred in its conclusion that Malsbary had ceased to exist, rather than merely having changed its name. She maintains that an amendment adding the defendant's new name would not change a party within the meaning of Rule 15(c), and that Schiavone is inapposite. Dandrea also argues that Malsbary is estopped from objecting to the amendment because Malsbary actively misled her by failing to notify her that it was changing its name. Malsbary argues in response that any amendment to Dandrea's complaint is precluded both by Rule 15(c) on its face and by Schiavone. Estoppel is inappropriate, Malsbary contends, because it was not obligated to inform Dandrea of its decision to change its name. We will address these arguments in turn. Our standard of review of the district court's decision to grant Malsbary's dismissal motion is plenary. With regard to its decision to deny Dandrea leave to amend her complaint under Rule 15(a), based on its conclusion that the amendment would not relate back under Rule 15(c), our standard of review is whether the district court abused its discretion.
Rule 15(c) ("Relation Back of Amendments") ...