Opposition Brief — Clarke v. Loma Linda Foods, Inc.
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FILED
: DEC 2 1999
No. 91-786
In the Supreme Court ofthe“ "“™
United States
October Term, 1991
ERNEST L. CLARKE,
Petitioner,
Vv.
LOMA LINDA FOODS, INC., LARRY BOGGESS.
TED O. COOK, NABIL RAZZOUK.,
ADAM SCHLERETH, and JAMES SMEENGE,
Respondents
Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
BRIEF IN OPPOSITION TO PETITION
TONI RAE BRUNO
Attorney of Record for Respondent
LOMA LINDA FOODS, INC
CHASE, ROTCHFORD, DRUKKER & BOGUSIT
A Law Corporation
700 South Flower Street
Fifth Floor
Los Angeles, California 90017
Telephone: (213) 626-8711
DAVID F. LINK
CHASE, ROTCHFORD, DRUKKER & BOGUSI
Attorney for Respondent
LOMA LINDA FOODS, IN(
Westside Le aw y Publishers Los Angeles, C alifornia (310) 207-0272
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QUESTIONS PRESENTED
May a plaintiff-employee who has failed to allege:
(1) the existence of an internal administrative
procedure to address a grievance with his employer
under an employment contract; (2) any attempt on
his part to comply with such a procedure; or (3) any
interference by the defendant-employer with such an
attempt raise, for the first time on petition for
certiorari to this Court, a claim that there has been
an impairment of his right to enforce his employment
contract under 42 U.S.C. § 1981?
Does the language of 42 U.S.C. § 1981, “make and
enforce contracts,” extend to prospective agreements
a sales employee may enter with customers on behalf
of his employer?
. May one who voluntarily abandons his employment
duties maintain an action pursuant to 42 U.S.C.
§ 1981 against his employer for racially motivated
discharge?
Does plaintiff's complaint in the Federal District
Court of California, Central District, state a cause
of action upon which relief can be granted under
42 U.S.C. § 1981 given the one-year statute of
limitations set forth in California Code of Civil
Procedure, section 340, subdivision (3)?
il
LIST OF PARTIES
Petitioner: Ernest L. Clarke, an individual, Plaintiff-
Appellant, Clarke v. Loma Linda Foods
Inc., et al., United States Court of Appeal
No. 90-55284, United States District Court
No. CV-88-1403-R B(Ex).
Respondents:
LOMA LINDA FOODS, INC., a corpo-
ration, Defendant-Appellee, Clarke v.
Loma Linda Foods Inc., et al., United
States Court of Appeal No. 90-55284,
United States District Court No. CV-
88-1403-RB(Ex).
LARRY BOGGESS, an individual,
Defendant-Appellee, Clarke v. Loma
Linda Foods Inc., et al., United States
Court of Appeal No. 90-55284, United
States District Court No. CV-88-1403-
RB(Ex).
TED O. COOK, an_ individual,
Defendant-Appellee, Clarke v. Loma
Linda Foods Inc., et al., United States
Court of Appeal No. 90-55284, United
States District Court No. CV-88-1403-
RB(Ex).
TED O. COOK, an_ individual,
Defendant-Appellee, Clarke v. Loma
Linda Foods, Inc., et al., United States
Court of Appeal No. 90-55284, United
States District Court No. CV-88-1403-
RB(Ex).
NABIL RAZZOUK, an _ ndividual,
Defendant-Appellee, Clark v. Loma
Linda Foods, Inc., et al., United States
ill
Court of Appeal No. 90-55284, United
States District Court No. CV-88-1403-
RB(Ex).
ADAM SCHLERETH, an individual,
Defendant-Appellee, Clark v. Loma
Linda Foods, Inc., et al., United States
Court of Appeal No. 90-55284, United
States Court No. CV88-1403-R B(Ex).
JAMES SMEENGE, an individual,
Defendant-Appellee, Clark v. Loma
Linda Foods, Inc., et al., United States
Court of Appeal No. 90-55284, United
States Court No. CV88-1403-RB(Ex).
Petitioner’s complaint alleges the individuals were
agents of the corporation, LOMA LINDA FOODS, INC.
The parent corporation to LOMA LINDA FOODS, INC.
is presently Nutricia Corporation. There are no
subsidiaries of LOMA LINDA FOODS, INC. which are
not wholly owned.
iV
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .................... ek pois oe i
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I od oes cde vavcdnduaccevadixenacnedscesesces l
PI ooo dvs pis dno chcn peanakethescvseccwaes: 2
CONSTITUTIONAL PROVISIONS AND
SI tos os eccaian da ncutivaxcevaascensenees 2
oe co wie avesectieicsacaeees 2
STATERE OF THE CASE. ....... 0. .cccccccccscceccccssess 3
ee Pee ees oases neon ks cv sitscecdvscssacs 4
REASONS FOR DENYING THE WRIT .................. 5
I.
PETITIONER HAS FAILED TO ESTABLISH ANY
GROUND REQUIRED BY THIS COURT FOR
ISSUANCE OF A WRIT OF CERTIORARI........ 5
I.
CLARKE’S COMPLAINT FAILS TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED IN THAT IT CONTAINS NO
ALLEGATIONS LOMA LINDA INTERFERED
WITH HIS RIGHT TO USE LEGAL PROCESS
TO ENFORCE HIS EMPLOYMENT
NEE Owl ox cab anta sc ccieavccnenactanucsundesevnceees 8
IIT.
42 U.S.C. § 1981 DOES NOT EXTEND TO THE
RIGHT OF AN EMPLOYEE TO MAKE SALES
CONTRACTS WITH CUSTOMERS OF HIS
IIE iiss civunsasccacaskoess peraeaaerans 10
IV.
CLARKE’S COMPLAINT FAILS TO ALLEGE
FACTS TO SUPPORT A CLAIM OF
RACIALLY MOTIVATED DISCHARGE......... 10
V.
CLARKE’S CLAIMS BASED UPON 42 U.S.C.
§ 1981 ARE BARRED BY THE APPLICABLE
STATUTE OF LIMITATIONS
VI.
CONCLUSION
Vi
TABLE OF AUTHORITIES CITED
Cases Page(s)
Bratton v. Bethlehem Steel Corp.
GOD F2e GS GAD Fe oiciccccccceccccsccvccesses 12
Darnell v. Campbell County Fiscal Court
731 F.Supp. 1309 (E.D.Ky. 1990).................. 11
Gauvin v. Trombatore
682 F.Supp. 1067 (N.D. Cal. 1988).................. )
Goodman v. Lukens Steel Co.
483 U.S. 656 107 S.Ct. 2617,
ee Re lo) nee ec 6, 12
Hicks v. Brown Group, Inc.
rrr Len 1]
Kauffman v. Moss
420 F.2d 1270 (CA3), cert. denied, 400
U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d
OO a ences asin is aedaxdineseenabieucteicnrera aes ®
Koch v. Yunich
‘SOD Fe I Ae Faia on cnc dsckccecccncctncacescess 8
LaVay Corp. v. Dominion Federal Sav.
& Loan Ass’n
830 F.2d 522 (CA4 1987), cert. den.,
484 U.S. 1065, 108 S.Ct. 1027,
OB EG ee a vic ekc che cade sivccncvevass 11
National Labor Relations Board v.
Pittsburgh S.S. Co.
340 U.S. 498 71 S.Ct. 453 (1951) ......000..0..... 5,7
Nelson v. International Paint Co.
TEGO FBG Ga ee ie va vaneencsscccncccsecctvcss 1!
Patterson v. McLean Credit Union
491 U.S. 164, 109 S.Ct. 2363,
105 L.Ed.2d 132 (1989) ............... £34 7:4 0)
Powell v. Jarvis
660 F236 Shi CCAS Wile aster )
Vil
Powell v. Workmen’s Compensation Board
of The State of New York
Cee se fe | es 8
Trader v. Fiat Distributors, Inc.
476 F.Supp. 1194 (D. Del. 1979).........00..0....... 9
Williams v. Eggleston
170 U.S. 304, 3.09 18 S.Ct. 617,
Oe eI ooo opdv connec vaeuvevcnevuccesenss 10
Wilson v. Garcia
471 U.S. 261 105 S.Ct. 1938,
ey Ie IN oc v ccc cscs scoseccccvecesecteves 12
Yates v. Avco Corp.
er ce Pe Foon i ccc cusdvvccdeseeaass 11
Statutes
California Code of Civil Procedure,
Section 340, subdivision (3)................... 2, 3, 12
Civil Rights Act of 1991
ee Noe oe aay 6
Federal Rules of Civil Procedure
a aR lg ee Ae Sie nee eer ae OAR eet 3
Supreme Court Rules
Tg in Si Sa a a eee See ee oes DOT DH 5
42 U.S.C. § 2000e, et seq.
Title VII of the Civil Rights Act of 1964......... a
Other
12A American Jurisprudence 2d Contracts
ee I I oc prcn rade css sdavdessoocyes 10
No. 91-786
In the Supreme Court of the
United States
October Term, 1991
ERNEST L. CLARKE,
Petitioner,
V.
LOMA LINDA FOODS, INC., LARRY BOGGESS,
TED O. COOK, NABIL RAZZOUK,
ADAM SCHLERETH, and JAMES SMEENGE,
Respondents.
BRIEF IN OPPOSITION TO PETITION
Respondent LOMA LINDA FOODS, INC. (“LOMA
LINDA”) hereby submits its brief in opposition to the
petition for writ of certiorari filed by ERNEST L.
CLARKE seeking review of the Ninth Circuit Court of
Appeals decision rendered in this matter May 28, 1991.
OPINIONS BELOW
The opinion of the Court of Appeals for the Ninth
Circuit issued May 28, 1991 is an unreported memo-
randum decision. By footnote, the opinion provides it
is not appropriate for publication. At 933 F.2d 1013
the case name and number are merely listed among those
a
|
not suitable for publication as a part of the table of
Decisions Without Published Opinions.
The opinion of the district court is contained in the
Appendix to this brief at pages 25 through 43 thereof.
JURISDICTION
LOMA LINDA FOODS, INC. takes no issue with the
Statement of jurisdiction set forth in the petition.
CONSTITUTIONAL PROVISIONS AND STATUTES
In addition to the statutory provisions set forth in
the petition, the following statute of California is
involved, California Code of Civil Procedure, section
340, subdivision (3), the statute of limitations for
personal injury actions:
“Within one year:
(3) An action for libel, slander, assault, battery,
false imprisonment, seduction of a person
below the age of legal consent, or for injury
to or for the death of one caused by the
wrongful act or neglect of another. . .”
INTRODUCTION
Review of the petition for certiorari demonstrates
CLARKE presents no issue of federal law not settled
by this Court and reveals the Ninth Circuit opinion
neither conflicts with decisions of this Court nor creates
a conflict in decisions between the circuits. In fact, the
petition itself makes no claim to the contrary. CLARKE
merely seeks one more level of judicial review of the
facts which precipitated his decision not to continue his
employment. Consequently, the petition fails to meet
the criteria necessary for review by petition for writ of
certiorari set forth in the rules of this Court as well
as the decisional law and merits no consideration.
STATEMENT OF THE CASE
CLARKE'’s initial complaint filed June 2, 1987, in the
United States District Court for the Northern District
of Illinois, Eastern Division, was transferred to the
Central District of California February 25, 1988.
(Respondent’s Appendix [“Resp. App.”] B-3.) Following
motions to dismiss, CLARKE filed his second amended
complaint with leave of court on September 11, 1989.
In addition to LOMA LINDA, that complaint named
Larry Boggess, Ted O. Cook, Nabil Razzouk, Adam
Schlereth and James A. Smeenge, individually. It also
alleged the individual defendants acted as agents of
LOMA LINDA. The complaint sought damages based
on asserted violations of 42 U.S.C. § 1981 only. (Resp.
App. A-I through 21.)
On January 8, 1990 pursuant to the motion of LOMA
LINDA, joined by the individual defendants, the district
court dismissed CLARKE’s action for failure to state
a claim upon which relief could be granted in accord
with Federal Rules of Civil Procedure Rule 12(b)(6).
(Resp. App. B-16.) The court found that the action was
barred by the one-year statute of limitations, California
Code of Civil Procedure, section 340, subdivision (3),
and that under Patterson v. McLean Credit Union, 491
U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)
CLARKE could not state a claim upon which relief could
be granted.
CLARKE appealed the district court’s decision to the
Ninth Circuit. By its unpublished opinion of May 28,
1991, the Ninth Circuit affirmed the district court order
of dismissal without addressing the statute of limitations
issue. (App. 2-18.)
‘STATEMENT OF FACTS
The complaint alleges CLARKE, a black Jamaican-
American, was employed by LOMA LINDA as a sales
representative beginning September, 1982 in the
company’s Great Lakes territory which encompassed
Illinois, Indiana, Michigan, Minnesota, Ohio and
Wisconsin. (Resp. App. A-4.) In March of 1985, LOMA
LINDA began to carry out acorporate restructuring plan,
under which personnel relocations would be necessary,
but contemplated no employee layoffs as a result of the
plan. (District Court Docket no. 66, p.6) Later in March
LOMA LINDA informed CLARKE the Great Lakes
territory would be closed and he, along with other staff,
would need to be reassigned to other areas of the country.
(Resp-App._A-6) On April 18, 1985, CLARKE was
informed his new territory would be centered in New
York. (Resp. App. A-6.)
CLARKE refused to report to his newly assigned sales
territory. He was advised he would be required to be
in his reassigned territory June 3, 1985 in order to
continue his employment. CLARKE decided not to make
the move. (Resp. App. A-2) Based on CLARKE’s decision
not to accept reassignment, his employment did not
continue beyond June 3, 1985. (Resp. App. A-2, 11)
CLARKE was an employee of LOMA LINDA throughout
the time period alleged in the complaint. (Resp. App.
A-4) His reassignment was solely geographical and
involved no new job responsibilities. (Resp. App. A-
6) The complaint asserts no conduct on the part of LOMA
LINDA after June 4, 1985. (Resp. App. A-6 through
11)
REASONS FOR DENYING THE WRIT
PETITIONER HAS FAILED TO ESTABLISH
ANY GROUND REQUIRED BY THIS COURT
FOR ISSUANCE OF A _ WRIT OF
CERTIORARI.
The rule is clear that “[a] petition for a writ of certiorari
wi!l be granted only when there are special and important
reasons therefor.” (Sup. Ct. R. 10.1) Rule 10.1 sets forth
the factors this Court considers in evaluating a petition
for writ of certiorari. Among those factors are whether
a circuit court of appeals of the United States has:
rendered a decision in conflict with the decision of
another circuit court on the same matter (Sup. Ct. R.
10.1(a)); decided an important question of federal law
which has not been, but should be, settled by this Court
(Sup. Ct. R. 10.1(c)); or decided a federal question in
a way that conflicts with applicable decisions of this
Court (Sup. Ct. R. 10.1(c)). This Court has forcefully
expressed it will grant certiorari only “in cases involving
principles the settlement of which is of importance to
the public, as distinguished from that of the parties,
and in cases where there is a real and embarrassing
conflict of opinion and authority between the Circuit
Courts of Appeals.” National Labor Relations Board
v. Pittsburgh S.S. Co., 340 U.S. 498, 502, 71 S.Ct. 453
(1951). Yet, in this case involving an unpublished
opinion, CLARKE’s petition has demonstrated no
ground for issuance of a writ of certiorari.
CLARKE'’s first stated reason for grant is styled “[the
Ninth Circuit] Failed To Give Due Emphasis To The
Fact That The Primary Focus Of The Patterson Case
Is The ‘Contract’ Aspect of 42 U.S.C. § 1981. . .” (Pet.,
p. 5.) However, substantive review of the briefing which
follows that heading reveals no discussion of any manner
in which the Ninth Circuit opinion conflicts with this
Court’s decision in Patterson v. McLean Credit Union,
491 U.S. at 180 or any other opinion of this Court.
On appeal to the Ninth Circuit, CLARKE argued
Patterson had been wrongly decided, despite the fact
that, as recognized by the Court of Appeals, it remained
binding authority which that court could not alter. (App.
15, n.2) There is no question that the Ninth Circuit
properly applied the Patterson case as decided by this
Court to the facts of this case.' While CLARKE proceeds
to assert “there is some genuine inconsistency and
confusion in the lower courts, especially at the trial court
level, on the application of Patterson,” (Pet. p. 7), he
makes no reference to any circuit court cases which are
in conflict.
Petitioner’s second “reason for grant” asserts that by
virtue of the Ninth Circuit opinion and Patterson,
employers are granted immunity from suit when they
impair the right of an employee to make sales contracts.
'CLARKE does not address the impact of the Civil Rights Act
of 1991 (Pub. L. 102-166) on the issues in this case. While the
act will have the effect of overruling some aspects of the Patterson
decision, that circumstance does not diminish the validity of the
result reached in this case in light of the issues addressed in sections
II, III and IV of this brief. Furthermore, as discussed more fui.
in section V of this brief, the dismissal of CLARKE’s action is
mandated based solely on the applicable statute of limitations.
Under this Court’s decisica in Goodman v. Lukens Steel, 483 U.S.
656, 661-62, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), California’s
one year statute of limitations was appropriately applied.
Consequently, arguments based on the effect of the Civil Rights
Act of 1991 on Patterson, or the effect of that act upon any other
substantive liability theory under 42 U.S.C. § 1981 are moot.
(Pet., p. 9.) However, the present case involves no such
“immunity” from suit. The only claims pled in the
complaint were based on 42 U.S.C. § 1981. Thus, the
opinion in no way abridges other potential claims for
relief whether state or federal. As Patterson explicitly
recited, claims such as those in that case, like those in
the present case, are more appropriately asserted as
employment discrimination claims under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,
than under § 1981 which is more limited. Patterson v.
McLean Credit Union, 491 U.S. at 180. In addition,
this circumstance demonstrates the consistency of the
Ninth Circuit opinion with the decisional law of this
Court and the other circuit courts rather than evidences
any reason for grant. Moreover, as discussed more fully
in section III of this brief, the ability of an employee
to make sales contracts is not the kind of right protected
by § 1981.
CLARKE'’s third and final purported reason for grant
is entirely factual. Such a contention provides no basis
for this Court to review the decision of the Ninth Circuit.
This Court will not review mere conflicts in the evidence.
National Labor Relations Board v. Pittsburgh S.S. Co.,
340 U.S. at 503. As a part of his factual reason for
grant, CLARKE mentions four district court rulings
which he avers were incorrect, but makes not a single
argument as to why any of them was wrongly decided
and cites no authority whatsoever. (Pet., p. 10-12)
Il.
CLARKE’S COMPLAINT FAILS TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED IN THAT IT CONTAINS NO
ALLEGATIONS LOMA LINDA INTERFERED
WITH HIS RIGHT TO USE LEGAL PROCESS
TO ENFORCE HIS EMPLOYMENT
CONTRACT.
Patterson made it clear that the right to enforce a
contract protected by 42 U.S.C. § 1981 is one’s right
to use legal process to enforce that contract. Patterson
v. McLean Credit Union, 491 U.S. at 177. Examination
of the complaint, however, demonstrates that it nowhere
alleges any grievance procedure adopted by LOMA
LINDA, any attempt by CLARKE to redress his
grievances with LOMA LINDA through any such process,
or any attempt by CLARKE to redress that grievance
by any other legal process. The complaint is further
fatally defective in that it contains no allegations as to
any manner in which LOMA LINDA interfered with or
frustrated CLARKE in an attempt to avail himself of
a company grievance process or other form of legal
process. At the very least, a violation of § 1981 for
interference with the right to enforce a contract must
allege that there was some interference with the plaintiff's
access to legal process. Jd. The complaint is entirely
silent on these issues.
Complaints which rely on federal civil rights statutes
are plainly insufficient unless they contain specific
allegations of fact indicating a deprivation of civil rights,
rather than state simple conclusions. Koch v. Yunich,
533 F.2d 80, 85 (CA2 1976); Powell v. Jarvis, 460 F.2d
551, 558 (CA2 1972); Kauffman v. Moss, 420 F.2d 1270,
1275 (CA3), cert. denied, 400 U.S. 846, 91 S.Ct. 93,
27 L.Ed.2d. 84 (1970); Powell v. Workmen’s Compen-
sation Board of The State of New York, 327 F.2d 131,
137 (CA2 1964); Trader v. Fiat Distributors, Inc., 476
F.Supp. 1194, 1197-98 (D. Del. 1979); Gauvin vy.
Trombatore, 682 F.Supp. 1067, 1071 (N.D. Cal. 1988).
The actual allegations contained in the complaint recite
plaintiff “complained” to “superiors” of one of the
individual defendants, but “received no remedy or relief”;
plaintiff “attempted to negotiate with defendants .. .
but his efforts were ignored or rebuffed;” “defendants
refused to engage in good faith discussions of the terms
and conditions associated” with other positions;
defendants “gave plaintiff inaccurate and incomplete
information regarding relocation assistance policies and
practices;” and defendants made “no further response”
to plaintiff's citation to his difficulty in finding suitable,
affordable housing. (Resp. App. A-5, 6-9, 11) Such
assertions cannot be rationally construed to allege an
employer’s interference with an employee’s access to legal
process.
CLARKE, in blatant conflict with the actual allegations
contained in his complaint, states in his petition he was
“frustrated” in his “attempts to access the internal
grievance process.” Even if such an allegation were truly
contained in the complaint, it would be insufficient to
state the necessary element of a§ 1981 claim, interference
with access to legal process. A plaintiff must allege
specific facts to state a federal civil rights claim; mere
conclusory allegations are insufficient. /d.
10
42 U.S.C. § 1981 DOES NOT EXTEND TO THE
RIGHT OF AN EMPLOYEE TO MAKE SALES
CONTRACTS WITH CUSTOMERS OF HIS
EMPLOYER.
CLARKE’s novel suggestion, without citation to
authority in law, or support in reason, that 42 U.S.C.
§ 1981 protects his right to make sales contracts on behalf
of his employer (Pet., p. 9.) was properly rejected by
the Ninth Circuit as without merit. As the Ninth Circuit
opinion expressly held, the claimed “right” of an
employee to make sales contracts is clearly not the kind
of right embodied in § 1981. (App. 15.) It is axiomatic
that, regardless of race, one may only enforce contracts
to which he is a party. Williams v. Eggleston, 170 U.S.
304, 3.09 18 S.Ct. 617, 42 L.Ed. 1047 (1898); 12A
Am.Jur.2d Contracts § 425 (2nd ed. 1991). CLARKE
himself makes no claim he was a contracting party with
those to whom he sold LOMA LINDA food products.
IV.
CLARKE’S COMPLAINT FAILS TO ALLEGE
FACTS TO SUPPORT A CLAIM OF
RACIALLY MOTIVATED DISCHARGE.
The allegations of CLARKE’s complaint acknowledge
he chose not to report on June 3, 1985 to the sales
territory newly assigned to him as a result of LOMA
LINDA’s business necessity to reorganize all of its sales
territories. (App. 12) Thus, no discharge occurred in
this case. In fact, Petitioner’s brief on appeal.to the Ninth
Circuit, conceded his “employment with Loma Linda
came to an end in June of 1985 as a result of conduct
on the part of defendants that made it impractical for
1]
him to continue.” (“Brief of Appellant,” p. 17.) Such
a claim cannot reasonably be construed to be a discharge
because of race. Instead it demonstrates the actual nature
of the facts here: CLARKE no longer works for LOMA
LINDA through his own choice.
An employee’s decision that a transfer is not
economically advantageous or is perceived by him to
be impractical does not amount to a discharge, direct
or constructive. A constructive discharge must be based
on objective criteria that would create intolerable
conditions a reasonable person could not be expected
to bear. Yates v. Avco Corp., 819 F.2d 630, 636-37 (CA6
1987); Darnell v. Campbell County Fiscal Court, 731
F.Supp. 1309, 1312-13 (E.D.Ky. 1990). Therefore,
despite CLARKE’s contention that racially motivated
discharge is compensable under 42 U.S.C. § 1981
subsequent to Patterson in reliance on Hicks v. Brown
Group, Inc., 402 F.2d 630 (CA8 1990), the pleadings
of the instant case provide no basis to address that issue.
V.
CLARKE’S CLAIMS BASED UPON 42 U.S.C.
§ 1981 ARE BARRED BY THE APPLICABLE
STATUTE OF LIMITATIONS.
Where venue of an action is transferred between
districts, the law of the state in which the transferree
district sits is applied with regard to statute of limitations
issues. LaVay Corp. v. Dominion Federal Sav. & Loan
Ass'n, 830 F.2d 522, 526 (CA4 1987), cert. den., 484
U.S. 1065, 108 S.Ct. 1027, 98 L.Ed.2d. 991 (1988); Nelson
v. International Paint Co., 716 F.2d 640, 643 (CA9 1983).
This prevents plaintiffs from filing suits in inappropriate
forums in order to gain the advantage of that forum’s
law. Lavay, 830 F.2d at 526.
a
12
The district court correctly concluded California’s one-
year statute of limitations set out in Code of Civil
Procedure, section 340, subdivision (3) was applicable
under this Court’s decision in Goodman v. Lukens Steel
Co., 483 U.S. 656, 661-62, 107 S.Ct. 2617, 96 L.Ed.2d
572 (1987). Goodman held the statute of limitations to
be applied to cases filed under 42 U.S.C. § 1981 is the
same as that to be applied to 42 U.S.C. § 1983 actions.
Id. at 660. Applying the rule of Wilson v. Garcia, 471
U.S. 261, 266-68, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985),
this Court held in Goodman that where there is more
than one potentially applicable statute of limitations,
the civil rights statutes require federal courts to apply
the state personal injury statute of limitations. Goodman,
482 U.S. at 661. This is the same rule the Ninth Circuit
has applied since 1980. Bratton v. Bethlehem Steel Corp.,
649 F.2d 658, 663 (CA9 1980). Given that the last
wrongful acts alleged against LOMA LINDA occurred
prior to June 4, 1985 and the complaint was not filed
until June 2, 1987, CLARKE’s claims under § 1981 were
time-barred approximately a year before the action was
brought.
13
Vi.
CONCLUSION
For the above reasons, the petition for writ of
certiorari should be denied.
Respectfully submitted,
TONI RAE BRUNO
Attorney of Record for Respondent
LOMA LINDA FOODS, INC.
CHASE, ROTCHFORD, DRUKKER & BOGUST
700 SOUTH FLOWER STREET
FIFTH FLOOR
LOS ANGELES, CALIFORNIA 90017
TELEPHONE: (213) 626-8711
DAVID F. LINK
CHASE, ROTCHFORD, DRUKKER & BOGUST
Attorneys for Respondent
LOMA LINDA FOODS, INC.
LPPENDICES
Edward E. Robinson
ROBINSON, DeMILLS & ASSOCIATES, P.C.
5117 South Cornell Avenue
Chicago, IL 60615
(312) 288-6938
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ERNEST L. CLARKE, )
Plaintiff, ) No. CV 88-1403 RB(Ex)
VS. ) SECOND AMENDED
LOMA LINDA FOODS. ) COMPLAINT; DEMAND
INC.. et al.. ) FOR JURY TRIAI
)
)
Defendants.
FIRST CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
Plaintiff complains and alleges as follows:
NATURE OF THE CASE
|. This is an action brought by a sales representative,
Ernest L. Clarke, against his former employer, Loma
linda Foods, Inc., and against Larry Boggess, Ted O.
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Cook, Nabil Razzouk, Adam Schlereth, and James A.
Smeenge, both individually and in their capacity as
agents of said former employer. Plaintiff alleges that
said defendants intentionally discriminated against him
on the basis of his race (black), that he was compelled
to sell only to black customers pursuant to company
policy, and that he was later fired when he found it
economically too burdensome to comply with said policy
of defendant Loma Linda Foods, Inc. This racialiy
motivated conduct was referred to as wrongful
termination in plaintiff's Section 1981 claim in his First
Amended Complaint filed more than a year before the
United States rendered their decision in Patterson v.
McLean Credit Union, U.S. —__, 109 S.Ct. 2363
(decided June 15, 1989). Patterson held that Section 1981
is applicable only to racially motivated conduct that
impairs the making and enforcing of contracts. With
a slight change in focus, but no material change in the
underlying facts, this Second Amended Complaint
reveals that the Patterson decision has no material
impact on plaintiffs cause of action. The facts underlying
plaintiff's claim of wrongful termination as well as his
pendant claims of breach of contract, intentional
interference with contract, and intentional infliction of
emotional distress, show racially motivated conduct on
the part of the defendants which impaired plaintiff's right
to make and enforce contracts in violation of Section
1981.
Furthermore, the facts alleged by plaintiff herein,
many of which are already admitted to by defendants,
constitute a separately distinguishable basis for plaintiff's
cause of action under Section 1981, post- Patterson. The
plaintiff in Patterson was an office worker. Plaintiff in
the instant case was a sales representative and, as such,
it was the very nature of his business to make contracts
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for the sale of infant formula and other products
manufactured or distributed by defendant Loma Linda
Foods, Inc. This means that racially motivated conduct
of any kind that impaired his ability to make and enforce
sales contracts on the same basis as a white citizen is
actionable under Section 1981. Such conduct includes
constructive termination, breach of contract, intentional
interference with contract, intentional infliction of
emotional distress, and any other such conduct.
Plaintiff seeks money damages for lost wages and
benefits, liquidated, compensatory and punitive
damages, and injunctive and declaratory relief, including
an order requiring defendant Loma Linda Foods, Inc.,
to modify its practices and policies which result in
unlawful discrimination based on race.
JURISDICTION
2. Jurisdiction over this action is based upon Title
28, USC Section 1331 (federal question), and Title 42
USC Section 1981. Section 1981 states:
“All persons within the jurisdiction of the
United States shall have the same right in every
State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all laws and
proceedings for the security of persons and
property as is enjoyed by white citizens, and
shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every
kind, and to no.other.”
PLAINTIFF
3. Plaintiff was one of two sales representatives in
the Great Lakes sales territory of defendant Loma Linda
Foods, Inc., at the time his employment was terminated
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on June 3, 1985. He had worked for defendant since
September of 1982. He was one of only two black sales
representatives out of the approximately 100 such
positions maintained by Loma Linda Foods, Inc.,
nationwide.
DEFENDANTS
4. Defendant Loma Linda Foods, Inc., is a business
corporation incorporated in the State of California, with
its principal place of business also in California. It was
at all relevant times a wholly-owned subsidiary of the
Seventh-day Adventist Church, a Maryland non profit
corporation, and shared a large body of policies and
practices with this its parent church organization. During
the time period covering the events cited in this
complaint, the individual defendants were all employees
of Loma Linda Foods, Inc., with various corporate,
administrative and managerial titles and responsibilities.
5. On or about September |, 1982, plaintiff was
employed by defendant Loma Linda Foods as a sales
representative for its Great Lakes Territory, which
territory included the states of Illinois, Indiana,
Michigan, Minnesota, Ohio, and Wisconsin.
6. All pre-employment interviews decisions and
commitments to hire plaintiff were conducted in Illinois,
including an interview with the president of defendant
Loma Linda Foods.
7. Plaintiff's initial sales area was the northwestern
suburbs of Chicago, a middle to upper class white
community.
8. On a date certain that plaintiff does not now recall
defendant Ted O. Cook met in Chicago with plaintiff
and the other Chicago area sales representative (a white
male) and, after an extensive review of sales activities
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and records, decided to immediately reassign plaintiff
to the south side of Chicago, a predominantly black
community, for the reason, as expressly stated by
defendant Cook, that blacks should only sell to blacks.
9. Plaintiff was immediately reassigned to the south
side of Chicago despite his strenuous objections to the
transfer, citing the blatantly racist basis for the transfer,
and his outstanding sales record in his non-black
territory. These racially motivated acts of defendant
imposed new contract terms and conditions on plaintiff
and thus impaired plaintiff’s right to make and enforce
his employment contract with defendants in violatior
of Section 1981.
10. Plaintiff complained to defendant Cook’s superiors
but received no remedy or relief.
1]. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
12. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
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and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race; all together with the costs of this action,
statutory attorneys’ fees pursuant to 42 USC, Section
1988; and such other relief both legal and equitable,
as the Court deems just.
SECOND CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
1-7 The allegations of paragraphs | through 7 of the
hereinabove First Claim for Relief are realleged and
incorporated herein by reference.
8. On or about March 25, 1985, defendant Loma Linda
Foods announced its plan to close down its Great Lakes
Territory and reassign staff (this would include plaintiff)
to other areas of the country, leaving the specific details
to the regional managers.
9. On or about April 18, 1985, defendant Adam
Schlereth, then district manager of the Northeastern
Region of defendant Loma Linda Foods, Inc., called
plaintiff from Connecticut to say that he had consulted
with defendant James Smeenge, his predecessor in the
northeast, and they had decided that plaintiff would be
transferred to a predominantly black community in New
York City. This was confirmed by plaintiff in a telephone
conversation with defendant James Smeenge at his new
location in Florida. Plaintiff was told that this was due
to a company policy of blacks selling only to blacks.
Plaintiff attempted to negotiate with defendants the
changed terms and conditions associated with the
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position in New York City, citing in particular the high
cost of housing, but these efforts were ignored or
rebuffed. These racially motivated acts of defendants
impaired plaintiff's right to make and enforce employ-
ment contracts with defendants in violation of Section
1981.
10. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
11. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race; all together with the costs of this action,
Statutory attorneys’ fees pursuant to 42 USC, Section
1988; and such other relief, both legal and equitable,
as the Court deems just.
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THIRD CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 US“, Section 1981)
1-8. The allegations of paragraphs | through 8 of the
hereinabove Second Claim for Relief are realleged and
incorporated herein by reference.
9. On or about April 18, 1985, defendant Adam
Schlereth, then district manager of the Northeastern
Region of defendant Loma Linda Foods, Inc., called
plaintiff from Connecticut to say that he had consulted
with defendant James Smeenge, his predecessor in the
northeast and they had decided that plaintiff would be
transferred to a predominantly black community in New
York City, clearly suggesting that it would be better
for a black person to try to develop sales opportunities
for the company in the targeted community. Plaintiff
expressed to defendants his interest in two other open
positions, including a position in San Diego, California,
but defendants refused to engage in good faith
4 discussions of the terms and conditions associated with
either position. Defendants’ racially motivated refusal
to consider plaintiff's requests to be considered for the
two other open positions impaired plaintiff's right to
make and enforce employment contracts with defendants
in violation of Section 1981.
10. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
emplovment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
11. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
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intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Tnousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race, all together with the costs of this action,
statutory attorneys’ fees pursuant to 42 USC, Section
1988; and other relief, both legal and equitable, as the
Court deems just.
FOURTH CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
|-8. The allegations of paragraphs | through 8 of the
hereinabove Second Claim for Relief are realleged and
incorporated herein by reference.
9. On or about May I, 1985, and again on or about
May 13, 1985, defendants Nabil Razzouk, Adam
Schlereth and Ted O. Cook intentionally and for racial
reasons, gave plaintiff inaccurate and incomplete
information regarding relocation assistance policies and
practices of defendant Loma Linda Foods, Inc. Said
racially motivated acts of said defendants impaired
plaintiff's right to make and enforce contracts of
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employment with defendants in violation of Section
1981.
10. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
11. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
’ said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race, all together with the costs of this action,
Statutory attorneys’ fees pursuant to 42 USC, Section
1988; and other relief, both legal and equitable, as the
Court deems just.
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FIFTH CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
1-8. Tue allegations of paragraphs | through 8 of the
hereinabove Second Claim for Relief are realleged and
incorporated herein by reference.
9. On or about May 21, 1985, defendant Nabil
Razzouk, pursuant to the policy and practice of requiring
blacks to only sell to blacks, issued an ultimatum to
plaintiff to be physically present at his new position in
New York City by June 3, 1985, or his employment
would be terminated.
10. Plaintiff responded citing, among other things,
his difficulty in finding suitable, affordable housing in
New York City. There was no further response from
defendant Loma Linda Foods, Inc., except as to thi
details of plaintiff's termination such as payment for
accumulated unpaid vacation hours.
11. Defendant’s constructive termination of plaintiff
was racially motivated and impaired plaintiff's right to
make and enforce contracts of employment with
defendants in violation of Section 1981.
12. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
13. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
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and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race, all together with the costs of this action,
Statutory attorneys’ fees pursuant to 42 USC, Section
1988; and other relief, both legal and equitable, as the
Court deems just.
SIXTH CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
1-8. The allegations of paragraphs | through 8 of the
hereinabove First Claim for Relief are realleged and
incorporated herein by reference.
9. Plaintiff was immediatel, reassigned to the south
side of Chicago despite his strenuous objections to the
transfer, citing the blatantly racist basis for the transfer,
and his outstanding sales record in his non-black
territory. These racially motivated acts of defendant
impaired plaintiff's right to make and enforce sales
contracts in his work as a sales representative for
defendant Loma Linda Foods, Inc., in violation of
Section 1981.
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10. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
11. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race, all together with the costs of this action,
statutory attorneys’ fees pursuant to 42 USC, Section
1988; and other relief, both legal and equitable, as the
Court deems just.
SEVENTH CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
1-7 The allegations of paragraphs | through 7 of the
hereinabove First Claim for Relief are realleged and
incorporated herein by reference.
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8. On or about March 25, 1985, defendant Loma Linda
Foods announced its plan to close down its Great Lakes
Territory and reassign staff (this would include plaintiff)
to other areas of the country, leaving the specific details
to the regional managers.
9. On or about April 18, 1985, defendant Adam
Schlereth, then district manager of the Northeastern
Region of defendant Loma Linda Foods, Inc., called
plaintiff from Connecticut to say that he had consulted
with defendant James Smeenge, his predecessor in the
northeast and they had decided that plaintiff would be
transferred to predominantly black community in New
York City. This was confirmed by plaintiff in a telephone
conversation with defendant James Smeenge at his new
location in Florida. Plaintiff was told that this was due
to a company policy of blacks selling only to blacks.
Plaintiff attempted to negotiate with defendants the
changed terms and conditions associated with the
position in New York City, citing in particular the high
cost of housing, but these efforts were ignored or
rebuffed. These racially motivated acts of defendants
impaired plaintiff’s right to make and enforce employ-
ment contracts with defendants in violation of Section
1981.
10. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
11. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
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and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race; all together with the costs of this action,
statutory attorneys’ fees pursuant to 42 USC, Section
1988; and such other relief, both legal and equitable,
as the Court deems just.
EIGHTH CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
1-8 The allegations of paragraphs | through 8 of the
hereinabove Second Claim for Relief are realleged and
incorporated herein by reference.
9. On or about April 18, 1985, defendant Adam
Schlereth, then district manager of the Northeastern
Region of defendant Loma Linda Foods, Inc., called
plaintiff from Connecticut to say that he had consulted
with defendant James Smeenge, his predecessor in the
northeast and they had decided that plaintiff would be
transferred to predominantly black community in New
York City, clearly suggesting that it would be better
for a black person to try to develop sales opportunities
for the company in the targeted community. Plaintiff
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expressed to defendants his interest in two other open
positions, including a position in San Diego, California,
but defendants refused to engage in good faith
discussions of the terms and conditions associated with
either position. These racially motivated acts of
defendant impaired plaintiff's right to make and enforce
sales contracts in his work as a sales representative for
defendant Loma Linda Foods, Inc., in violation of
Section 1981.
10. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
11. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful ©
intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race; all together with the costs of this action,
Statutory attorneys’ fees pursuant to 42 USC, Section
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1988; and such other relief, both legal and equitable,
as the Court deems just.
NINTH CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
1-8 The allegations of paragraphs | through 8 of the
hereinabove Second Claim for Relief are realleged and
incorporated herein by reference.
9. On or about May |, 1985, and again on or about
May 13, 1985, defendants Nabil Razzouk, Adam
Schlereth and Ted O. Cook intentionally and for racial
reasons gave plaintiff inaccurate and incomplete
information regarding relocation assistance policies and
practices of defendant Loma Linda Foods, Inc. These
racially motivated acts of defendant impaired plaintiff’s
right to make and enforce sales contracts in his work
as a sales representative for defendant Loma Linda
Foods, Inc., in violation of Section 1981.
10. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
11. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
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WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race, all together with the costs of this action,
statutory attorneys’ fees pursuant to 42 USC, Section
1988; and other relief, both legal and equitable, as the
Court deems just.
TENTH CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
1-8 The allegations of paragraphs | through 8 of the
hereinabove Second Claim for Relief are realleged and
incorporated herein by reference.
9. By letter dated May 21, 1985, defendant Nabil
Razzouk, pursuant to the policy and practice of requiring
blacks to only sell to blacks, issued an ultimatum to
plaintiff to be physically present at his new assignment
in New York City by June 3, 1985, or his employment
would be terminated.
10. Plaintiff responded citing, among other things,
his difficulty in finding suitable, affordable housing in
New York City. There was no further response from
defendant Loma Linda Foods, Inc., except as to the
details of plaintiff's termination such as payment for
accumulated unpaid vacation hours.
11. Defendant’s constructive termination of plaintiff
was racially motivated and impaired plaintiff’s right to
capsaicin paisa
A-19
make and enforce sales contracts in his work as a sales
representative for defendant Loma Linda Foods, Inc.,
in violation of Section 1981.
12. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
13. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
intention of injuring plaintiff and with an improper and
evil motive amounting to malice. Plaintiff has suffered
and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race, all together with the costs of this action,
statutory attorneys’ fees pursuant to 42 USC, Section
1988; and other relief, both legal and equitable, as the
Court deems just.
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ELEVENTH CLAIM FOR RELIEF
(Racially Motivated Impairment of Contract
42 USC, Section 1981)
1-8 The allegations of paragraphs | through 8 of the
hereinabove Second Claim for Relief are realleged and
incorporated herein by reference.
9. On June 4, 1985, defendant James Smeenge, in
the company of a fellow employee of defendant Loma
. Linda Foods, Inc., appeared without notice or warning
at plaintiff's home in Bolingbrook, Illinois, and in the
presence of plaintiffs wife, children, house guests and
neighbors, demanded in a loud and boisterous voice
clearly intended to cause embarrassment and distress,
that plaintiff give him the keys to plaintiff's company
owned car. Defendant James Smeenge then without
plaintiff's permission proceeded to load plaintiff's
product samples from plaintiff's garage into the car
before driving it away, all to plaintiff's great shock and
embarrassment. Upon information and belief, this
treatment of plaintiff was largely based upon race, and
it impaired plaintiff's right to make and enforce sales
contracts in his work as a sales representative for
defendant Loma Linda Foods, Inc., in violation of
Section 1981.
10. As a proximate result of defendants’ discrimination
against plaintiff, plaintiff has sustained and continues
to sustain substantial losses in earnings and other
employment benefits. Plaintiff is thus entitled to recover
compensatory damages from defendants in an amount
according to proof.
11. Defendants did the acts alleged herein maliciously,
fraudulently and oppressively and with the wrongful
intention of injuring plaintiff and with an improper and
A-21
evil motive amounting to malice. Plaintiff has suffered
and continues to suffer humiliation and mental anguish,
all to his damage, and is thus entitled to recover punitive
damages from defendants in an amount according to
proof.
WHEREFORE, plaintiff requests judgment against
said defendants jointly and severally for compensatory
damages in the amount of Six Hundred Twenty
Thousand Dollars ($620,000.00) or according to proof,
and for exemplary and punitive damages in the amount
of Nine Hundred Thousand Dollars ($900,000.00) or
according to proof; for an order requiring defendant
Loma Linda Foods, Inc., to modify its practices and
policies which result in unlawful discrimination based
on race, all together with the costs of this action,
Statutory attorneys’ fees pursuant to 42 USC, Section
1988; and other relief, both legal and equitable, as the
Court deems just.
JURY DEMAND
Plaintiff hereby demands jury trial of all claims herein
Stated.
DATED: September 11, 1989
ROBINSON, DeMILLS &
ASSOCIATES, P.C.
By:
Edward E. Robinson
Attorneys for Plaintiff
B-|
8
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JAN «8 1990 |
CLERK, U.S. DISTRICT COURT
CALIFORNIA
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ERNEST L. CLARKE,
Plaintiff,
No. CV 88-1403 RB(Ex)
LOMA LINDA FOODS, MEMORANDUM OF
INC.; LARRY BOGGESS; DECISION AND
)
)
Vv )
)
)
TED O. COOK: ORDER GRANTING
)
)
)
)
\
NABIL RAZZOUK; ADAM \ DEFENDANT'S
SCHLERETH; and MOTION
JAMES SMEENGE, TO DISMISS
Defendants.
Defendant Loma Linda moves, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, to
dismiss plaintiff's Second Amended Complaint claiming
violations of 42 U.S.C. §1981. The individual defendants
join in Loma Linda’s motion. For the reasons explained
RESP. APPENDIX B
"BEST AVAILABLE COPY
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below, the Court grants the motion as to all the claims,
and the action is ordered dismissed without leave to
amend.
Allegations and Procedural Background
This is an action for racial discrimination brought
under 42 U.S.C. §1981. Plaintiff is Ernest L. Clarke
(“Clarke”). Defendants are Loma Linda Foods, Inc.
(“Loma Linda”); Larry Boggess (“Boggess”); Ted O.
Cook (“Cook”); Nabil Razzouk (“Razzouk”); Adam
Schlereth (‘“Schlereth”); and James Smeenge
(“Smeenge”) (collectively “defendants”.
The Second Amended Complaint, asserting eleven
claims for relief under §1981, alleges in substance that
Clarke, a sales employee of Loma Linda, was reassigned
by his employer, apparently in 1983, to an all-black sales
territory in Chicago’s southside, and that thereafter, in
early 1985, he requested to be assigned to a sales territory
in San Diego, but was re-assigned instead to a
predominately black sales territory in the New York City-
Connecticut area. He refused to take the assignment
and was terminated on June 4, 1985. Clarke alleges that
all of these acts — the transfers, the refusal to transfer
and his termination — were racially motivated. Further,
he alleges that, by virtue of these acts, the defendants
impaired his “right to make and enforce his employment
contract” (Claims | to 5) and his “right to make and
enforce sales contracts in his work as a sales represen-
tative of Loma Linda” (Claims 6 to 11).
Clarke filed his initial complaint on June 2, 1987,
in the United States District Court for the Northern
District of Illinois, and it was assigned to U.S. District
Judge Shadur. On December 21, 1987, Clarke filed a
first amended complaint. Defendants filed an answer
that did not raise the affirmative defense of the statute
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of limitations, and then moved to transfer the action.
In February 1988, Judge Shadur ordered the case
transferred to this District pursuant to 28 U.S.C.
§1406(a), adding that “[t]o avoid any potential
limitations question, transfer rather than dismissal is
called for, and this action is indeed ordered transferred
to the United States District Court for the Central
District of California.” Memorandum of Decision and
Order at 5 (February 25, 1988) (footnote omitted).
On July 28, 1989, Loma Linda filed a summary
judgment motion based largely on Patterson v. McLean,
109 S.Ct. 2363 (1989). This Court treated that motion
as a motion to dismiss under Rule 12(b)(6) and dismissed
the First Amended Complaint for failure to state a claim.
Clarke was given twenty days to amend.
On September 11, 1989, Clarke filed his Second
Amended Complaint, serving it by mail on opposing
counsel on September 12, 1989. On October 4, 1989,
Loma Linda filed this motion to dismiss. On October
10, 1989, the rest of the defendants filed a joinder in
Loma Linda’s motion.
Contentions
Defendants contend that all eleven §1981 claims are
barred by the one-year statute of limitations, and that
all claims allege post-employment acts not actionable
under §1981 in light of Patterson v. McLean.
Clarke raises numerous points in opposition:
(a) defendants’ motion is not timely because it was
not filed within twenty days of Clarke’s serving the
Second Amended Complaint;
(b) concerning the statute of limitations: (i) defendants
did not plead the statute of limitations in their answer
to the first amended complaint and cannot do so now;
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(ii) Judge Shadur’s transfer order decided the limitations
issue against defendants; (iii) the statute of limitations
was tolled while the individual defendants were out of
the state; (iv) the Pre-Trial Conference Order did not
raise the issue, and it cannot be raised now; (v)
California’s three-year statute, not the one-year statute,
applies; (vi) even if the one-year statute applies, Clarke
may have other claims, making dismissal without leave
inappropriate;
(c) his allegations concerning Loma Linda’s re-
location policies, see 4th Claim, ¥ 9, state a §1981 claim;
(d) his claims are essentially racially motivated
termination claims, which §1981 covers;
(e) the U.S. Supreme Court’s granting certiorari in
a §1981 case suggests §1981 covers wrongful discharge:
and
(f) his claims are essentially claims for refusal to hire,
to which §1981 applies.
In reply, defendants insist that (1) their motion is
timely; (2) the statute of limitations argument is viable,
because they have not yet responded to the Second
Amended Complaint; (3) Judge Shadur never addressed
the issue whether the action is barred by the statute
of limitations; (4) the one-year statute applies, and
Clarke’s cases are distinguishable; (5) Patterson clearly
bars plaintiff's §1981 claims; and (6) §1981 does not
apply to racially motivated terminations.
Analysis
1. 12(b)6) standard
“The conditions that must be met before a motion
may be granted under Fed. R. Civ. P. 12(b)(6) are quite
strict. [A] complaint should not be dismissed for failure
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to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’ Conley v.
Gibson, 335 U.S. 41, 45-46 (1957). In applying this
standard, [the court] must treat all of the plaintiff's
allegations as true.” Church of Scientology of California
v. Flynn, 744 F.2d 694, 695-96 (9th Cir. 1984) (some
citations omitted); see also Hishon v. King & Spalding,
467 U.S. 69, 73 (1984). Thus, “[o]n a motion to dismiss,
material [factual] allegations of the complaint are taken
as admitted and the complaint is to be liberally construed
in favor of the plaintiff.” Keniston v. Roberts, 717 F.2d
1295, 1300 (9th Cir. 1983).
“Ordinarily, leave to amend should be freely given
in the absence of prejudice to the opposing party.” /d.
(citations and quotations omitted); Fed. R. Civ. P. 15(a).
However, leave to amend may be denied where there
has been a repeated failure to cure deficiencies by
amendments or where it is apparent that further
amendment would be an exercise in futility. /d. (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)).
2. Timeliness of This Motion
Loma Linda’s motion to dismiss is timely. Clarke's
service of the Second Amended Complaint by mail
extended the twenty-day period by which Loma Linda
had to respond by three days. See Fed. R. Civ. P. 6.
In addition, Clarke did not apply for the clerk’s entry
of any defendant’s default. Absent such an application,
the other defendants could and did file a technically
late response. FE.g., Schwarzer, Tashima & Wagstaffe,
Federal Civil Procedure Before Trial, par. 6:3 (1989).
By joinder in the Loma Linda’s motion, the other
defendants have responded.
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3. Timeliness of the Statute of Limitations Issue
Defendants timely raised the statute of limitations
issue. The First Amended Complaint, to which
defendants filed an answer, has been dismissed. The
operative pleading is now the Second Amended
Complaint, which supersedes the prior complaints and
renders them of no legal effect. E.g., Fritz v. Standard
Security Life Ins. Co., 676 F.2d 1356, 1358 (11th Cir.
1982); 6 Wright & Miller, Federal Practice and
Procedure §1476 at 389 (1971 & Supp. 1989)..An initial
responsive pleading is superseded by the response to
an amended complaint. Wright & Miller, §1476 at 391
& n.26. This motion, then, is defendants’ first response
to the operative pleading.
In any event, because defendants could have added
the statute of limitations defense by motion at a later
Stage in the litigation, it is appropriately raised now.
Accord Sylla v. Massey- Ferguson Inc., 595 F.Supp. 590,
591-92 (E.D. Mich. 1984) (granting summary judgment
motion on statute of limitations issue, even though
defendant did not raise it in the answer).
For these same reasons, the Court is not persuaded
by Clarke’s arugument that the Pre-Trial Conference
Order (which was filed before the Second Amended
Complaint) bars assertion of a limitations defense.
4. Judge Shadur’s Treatment of the Statute of
Limitations
Judge Shadur did not decide whether the statute of
limitations bars this action. He transferred, rather than
dismissed, this action “to avoid potential limitations
question.” Judge Shadur alluded to the possibility that,
if the case had been dismissed rather than transferred,
the statute of limitations could have run before Clarke
"aia aaa a
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could re-file it. See Burnett v. New York Central C. R.
Co., 380 U.S. 424, 430 & n.7 (1964). To avoid that
problem, he transferred the case.
5. Which Statute of Limitations (One-year or
Three-year) Applies
The Court concludes that California’s one-year statute
of limitations applies to an action under 42 U.S.C. §1981.
Preliminarily there is the issue of which jurisdiction’s
law — Illinois or California — applies. The law of the
transferee jurisdiction, not the transferor jurisdiction,
applies to a case transferred under §1406(a), e.g., Nelson
v. International Paint Co., 716b F.2d 640, 643 (9th Cir.
1983), cert. denied, 108 S.Ct. 1027 (1988); see generally
| J.W. Moore, Moore’s Federal Practice par 0.145[.4
- .5] (2d ed. 1989), including the transferee jurisdiction’s
statute of limitations. E.g., LaVay Corp. v. Dominion
Federal Savings & Loan Ass’n, 830 F.2d 522, 526-27
(4th Cir. 1987), cert. denied, 108 S.Ct. 1027 (1988);
Haglund v. Dow Chemical Co., 35 Fed. R. Serv. 2d
(Callaghan) 107, 114-15 (E.D. Cal. 1982). This is so even
if the complaint was filed within the transferor
jurisdiction’s statute of limitations; the transferee
jurisdiction’s shorter statute of limitations still bars the
claim. LaVay, 830 F.2d at 526-27; T-Birds, Inc. v.
Thoroughbred Helicopter, 540. F.Supp. 548, 550-51
(E.D. Ky. 1982) (applying transferee’s shorter statute
of limitations to bar claim; granting summary judgment).
Next, there is the issue of what statute of limitations
applies in this case. Clarke posits that when he initially
filed his complaint (June 2, 1987) California’s three-year
Statute applied, see Cal. Civ. Proc. Code §338((a); he
concludes it still applies. Section 338(a) provides that
“[a]n action upon a liability created by statute, other
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than a penalty or forfeiture,” must be brought within
three years.
Defendants counter that the one year statute, Cal.
Civ. Proc. Code §340(3), applies. Section 340(3) provides
that the following actions must be brought within one
year:
An action for libel, slander, assault, battery,
false imprisonment, seduction of a person
below the age of legal consent, or for injury
to or for the death of one caused by another
by the wrongful act or neglect of another....
Defendants are correct: the one-year statute applies
to an action under 42 U.S.C. §1981 filed in California.
Because neither §1981 nor §1983 provide a statute
of limitations, courts must “borrow” the most approp-
riate state statute. Goodman yv. Lukens Steel Co., 107
S.Ct. 2617, 2620 (1987) (§1981); Wilson v. Garcia, 105
S.Ct. 1938, 1942 (1985) (§1983). When a state has more
than one statute of limitation, the personal injury statute
applies. Wilson, 105 S.Ct. at 1947-49; see also Owen
v. Okure, 109 S.Ct. 573, 576-82 (1989).
Since the Supreme Court’s decision in Goodman
(decided June 19, 1987), it has been clear that the same
statute of limitations which applies to §1983 actions also
applies to §1981 actions. This proposition had been
established in this Circuit much earlier. Bratton v.
Bethelehim Steel Corp., 649 F.2d 658,663 (9th Cir. 1980).
Since the Supreme Court’s decision in Wilson vy.
Garcia, (decided April 17 1985), it has been clear that
California’s one-year personai injury limitation period
applies to §1983 actions. Del Percio v. Thornsley, 877
F.2d 785, 786 (9th Cir. 1989); Merritt v. County of Los
Angeles, 875 F.2d 765, 767 fn.1 (9th Cir. 1989). Given
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the Ninth Circuit’s rationale in Bratton, it was reasonable
to conclude that after April 17, 1985, the one-year
limitation period applied to both §1983 and §1981
actions filed in California. Any doubts on this score,
of course, were removed by the Supreme Court in
Goodman.
The last wrongful act alleged in the Second Amended
Complaint occurred on June 4, 1985. As previously
noted, this action was filed June 2, 1987. Thus, the action
is time-barred.
The Ninth Circuit addressed the retroactivity of
Wilson in Usher v. City of Los Angeles, 828 F.2d 556
(9th Cir. 1987), and held:
in states such as California, where the effect
of Wilson v. Garcia is to shorten the limitation
period for 42 U.S.C. § 1983 actions, the
limitation period for causes of action arising
prior to Wilson shall be either (1) the pre-
Wilson period, commencing at the time the
cause of action accrues, or (2) the post- Wilson
period, commencing with the Wilson decision,
whichever expires first.
Usher, 828 F.2d at 561 (emphasis added).
Applying Usher to the last wrongful act alleged, the
plaintiff's claims were time-barred after June 4, 1986.
Plaintiff urges that the Court apply an Usher
retroactivity analysis to the Goodman case, i.e., permit
a pre-Goodman plaintiff to file an action either within
three years or within one year of Goodman, whichever
comes first. Under this approach, plaintiff claims are
not time-barred.
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The flaw in plaintiffs argument is that there is a
fundamental difference between the situation faced by
the Ninth Circuit in Usher and that presented in the
case sub judice. Wilson overturned clear Ninth Circuit
precedent. Goodman did not. As explained above, the
existence of a three-year statute of limitations for §1981
actions filed after Wilson was in serious doubt,
particularly because the Ninth Circuit had previously
equated §1981 with §1983 for statute of limitations
purposes. Bratton, supra, 649 F.2d at 663. At the very
least, whether the limitations period for a §1981 action
filed in California was one year or three years was very
much up in the air after Wilson, because the Ninth Circuit
had “not ruled on the question.” Jones v. Bechtel, 788
F.2d 571,574 (9th Cir. 1986).
6. Tolling of the Statute of Limitations
Clarke, however, argues that §340(3) was tolled —
an issue defendants do not address.
The possiblility of statutory tolling precludes dismissal
against the individual defendants based on the statute
of limitations; but the tolling statute does not apply to
Loma Linda.
The relevant California tolling statute provides
If, when a cause of action accrues against a
person, he is out of the state, the action may
be commenced within the term herein limited,
after his return to the state, and if, after the
cause of action accrues, he departs from the
State, the time of his absence is not part of
the time limited for the commencement of the
action.
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Cal. Civ. Proc. Code §351 (West’s 1982). This tolling
statute applies to civil rights claims. Maurer vy.
Individually and As Members of Los Angeles County,
691 F.2d 434, 436-37 (9th Cir. 1982) (§1983 claims).
The Second Amended Complaint does not allege
whether or when the individual defendants were out of
state after the claims accrued; in fact, it does not allege
in which states they reside. Because it does not “appear[]
beyond doubt that the plaintiff can prove no set of facts
in support of his claims entitling him to relief,” Conley,
355 U.S. at 45-46, dismissal on statute of limitations
grounds is inappropriate as to the individual defendants.
Section 351, however, does not apply to corporations.
Epstein v. Frank, 125 Cal.App.3d 111, 119 n.4 (1981);
Loope v. Greyhound Lines, Inc., 114 Cal.App.2d 611,
614 (1952). Hence, the claims against Loma Linda were
not tolled by the statute.
Accordingly, the claims against Loma Linda only are
dismissed on the ground that they are barred by
California’s one-year statute of limitations.
7. Patterson v. McLean
The Court now turns to the issue whether the Second
Amended Complaint states a claim in light of Patterson
v. McLean, 109 S.Ct. 2363 (1989), and concludes it does
not. Patterson teaches that Title VII, not §1981, covers
an employer’s post-employment racial discrimination
against its employees — with, however, one limited
exception: claims for failure to promote because of race
where the effect of the promotion would be to enter
into a “new contract,” i.e., a “new and distinct”
relationship with the employer. As the Supreme Court
explained:
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the question whether a promotion claim is
actionable under §1981 depends on whether the
nature of the change in position was such that
it involved the opportunity to enter into a new
contract with the employer. If so, then the
employer’s refusal to enter the new contract
is actionable under §1981. . . . Only where the
promotion rises to the level of an opportunity
for a new and distinct relation between the
employee and the employer is such a claim
actionable under §1981.
Patterson, 109 S.Ct. at 2377.
None of the eleven claims allege that plaintiff was
denied a promotion, much less that he was denied an
opportunity to enter into a distinctly new contractual
relationship with his employer. Indeed, the conduct
complained of in claims 1-5, although no doubt
actionable under Title VII of the Civil Rights Act, is
the type of post-employment conduct held in Patterson
to fall outside of §1981.
The fifth claim alleges that plaintiff was told to move
to New York or be fired. Plaintiff alleges constructive
termination. Yet §1981 does not reach discriminatory
discharge of an employee. See, Overby v. Chevron USA,
Inc., 884 F.2d 470, 473 (9th Cir. 1989). In Overby, the
Ninth Circuit, interpreting Patterson, held that §1981
does not cover retaliatory discharge. By analogy, §1981
cannot be said to cover discriminatory discharge,
constructive or otherwise.
In claims 6-11, plaintiff alleges that his termination
impaired his ability, as a sales employee, “to make and
enforce sales contracts. .. .” This is indeed plaintiff’s
most imaginative effort to avoid the sweep of Patterson.
Regrettably, this effort falls short.
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Holding that Patterson permits such an end run would
lead to anomalous results. It would mean that only
employees engaged in sales would have protection under
§1981 for discriminatory discharge by their employers;
whereas no other type of employee would.
On the face of the Second Amended Complaint, it
is clear that plaintiff was an employee of defendant Loma
Linda. The pleading is replete with references to his
“employment” by plaintiff. See e.g., Second Amended
Complaint, p. I, 1. 23 (“This is an action .. . against
his former employer”); p. 4, 1. 5 (“his employment was
terminated”); p.4, 1. 20-21 (“. . . plaintiff was employed
by defendants . . .”) (emphasis added). It is evident that
plaintiff entered into sales contracts as an agent for his
principal, Loma Linda.
The Court is mindful of the Supreme Court’s
admonition in Patterson to refrain from “twist[ing] the
interpretation” of §1981 to cover conduct otherwise
subject to remedies provided under Title VII. To read
§1981’s language — “the same right ... to make...
contracts. . . as is enjoyed by white citizens” — to include
a right of sales employees to make contracts for others
would be precisely the type of stretching and straining
the Supreme Court enjoined the lower courts to eschew.
The Court concludes that permitting only sales
employees to bring actions under §1981 for discrimi-
natory termination would “circumvent the detailed
remedial scheme” of Title VII. Patterson, 109 S.Ct at
2375.
8. Retroactivity of Patterson
At oral argument, plaintiffs counsel for the first time
urged that this Court refrain from giving Patterson
retroactive application. Plaintiff failed to raise this issue
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in his brief, and the Court need not consider it. Local
Rule 7.9. Nonetheless, even had this issue been timely
raised and briefed, the Court would be constrained to
give Patterson retroactive effect.
The general rule is that civil cases are decided “in
accordance with the law existing at the time of decision.”
Goodman vy. Lukens Steel, 482 U.S. 656, 662 (1987);
see also Robinson v. Neil, 409 U.S. 505 (1973).
Accordingly, decisions of the Supreme Court are usually
applied retroactively in civil cases. However, as the
Supreme Court explained in Chevron Oil v. Huson, 404
U.S. 97 (1971), there is an exception to this general rule.
A decision should be given only prospective application
if three criteria are satisfied:
(1) the holding must establish a new principle of law,
either by overruling clear past precedent on which
litigants have relied, or by deciding an issue of first
impression whose resolution was not clearly
foreshadowed;
(2) the merits and demerits of each case must be
weighed by looking to the history of the rule in dispute,
its purpose and effect, and whether retroactive
operations will further or retard the rule’s operation;
and
(3) retroactive application must create the risk of
producing substantially inequitable results. Chevron v.
Huson, 404 U.S. at 106-07.
Plaintiff does not satisfy either of the first two factors.
In this regard, it does not appear that Patterson overruled
any clear precedent. The decision itself does not purport
to overrule past precedent; the decision merely
“reaffirm[s] that §1981 prohibits racial discrimination
in the making and enforcement of private contacts.”
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Patterson, 109 S.Ct. at 2370. The Ninth Circuit has
described Patterson as “confirm[ing]” and “clarif[ying]”
§1981’s scope. Overby, 884 F.2d at 472. Hence, the first
Chevron v. Huson criteron is not met. Accord, Prather
v. Dayton Power & Light Co., 1989 U.S. Dist. LEXIS
10756 at *2-3 (Sept. 7, 1989 S.D. Ohio).
Moreover, plaintiff fails to satisfy the second criterion.
Patterson teaches that §1981 does not cover the conduct
of which Clarke complains. The Supreme Court refused
to read §1981 “broadly where the result is to circumvent
the detailed remedial scheme” of Title VII. Patterson,
109 S.Ct. at 2375. The Court concluded that Title VII,
not §1981, is the proper remedy for persons alleging
that they have been discriminated against in their terms
and conditions of employment. The remedies and
procedures of Title VII reflect a congressional choice
that balances the concerns of both employers and
employees. The purpose to be served by Patterson, viz.,
preserving the balance between §1981 and Title VII, is
best served by applying Patterson retroactively. Accord,
Thompson v. Johnson & Johnson Management Center,
U.S. Dist. LEXIS at *5; Brackshaw, 723 F.Supp. at 62.
This conclusion accords with the holdings of the vast
majority of the federal courts that have addressed the
issue whether Patterson applies retroactively. See
Malekian v. Pottery Club of Aurora, Inc., 1989 U.S.
Dist. LEXIS 13687*7 (D. Col. November 9, 1989);
Williams v. Edsal Mfg. Co., 1989 U.S. Dist. LEXIS 12606
*8 n.3 (N.D. Ill. October 24, 1989); Prather v. Dayton
Power & Light Co., 1989 U.S. Dist. LEXIS 10756 (Sept.
7, 1989 S.D. Ohio); Brackshaw vy. Miles, 723 F.Supp.
60 N.D. Ill. 1989); Morgan v. Kansas City Area Trans.
Authority, 720 F.Supp. 758, 759-61 (W.D. Mo. 1989);
H11 v. County of Cook, 719 F.Supp. 721, 725 n.3 (N.D.
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Ill. 1989); Jorday v. U.S. West Direct Do., 716 F.Supp.
1366, 1368 (D. Colo. 1989) (granting motion to dismiss);
Williams v. National Railroad Passenger Corp., 716
F.Supp. 49, 50 n.1 (D.D.C. 1989) (declining to depart
from general rule applying cases retroactively; granting
summary judgment). But see Thomas v. Beech Aircraft
Corp., 1989 U.S. Dist. LEXIS 11284 (D. Kan. Sept. 25,
1989); Gilsepie v. First Interstate Bank of Wis. S.E.,
717 F.Supp. 649 (E.D. Wis. 1989) (refusing to apply
Patterson retroactively when action had already been
tried and the retroactivity issue was before the court
on post-verdict motions).
9. Denial of Leave to Amend
The plaintiff was given an opportunity to amend his
complaint in light of Patterson. In view of the statute
of limitations bar and the failure to state a claim under
Patterson, the Court concludes that leave to amend again
would be an exercise in futility. Kenniston,717 F.2d at
1300.
CONCLUSION
For the foregoing reasons, defendants” motion to
dismiss the Second Amended Complaint is granted, and
the action is dismissed without leave to amend.
IT IS SO ORDERED
Dated: January 8, 1990
: ROBERT C. BONNER
UNITED STATES DISTRICT JUDGE
PROOF OF SERVICE BY MAIL
State of California
SS.
County of Los Angeles
I, the undersigned, say: I am and was at all times
herein mentioned, a citizen of the United States and
a resident of the County of Los Angeles, over the age
of eighteen (18) years and not a party to the within
action or proceeding; that my business address is 11852
Santa Monica Boulevard, Suite 3, Los Angeles,
California 90025; that on December 2, 1991, I served
the within Brief In Opposition To Petition in said action
or proceeding by depositing true copies thereof, enclosed
in a sealed envelope with postage thereon fully prepaid,
in the United States mail at Los Angeles, California,
addressed as follows:
Clerk, United States Edward E. Robinson
Supreme Court Robinson, De Mills & Associates
One First Street, N.E. 5117 South Cornell Avenue
Washington, D.C. 20543 Chicago, Illinois 60615
(By Express Mail: original
and forty copies) Dara DeHaven
Powell, Goldstein,
Clerk, U.S. Court of Appeals Grasier & Murphy
Ninth Judicial Circuit 35 Broad Street
50 United Nations Plaza Atlanta, Georgia 30335
Room 59
San Francisco, CA 94101 Paul Reynolds
Kinkle, Rodiger & Spriggs
Clerk, U.S. District Court 3393 Fourteenth Street
Honorable Robert Bonner Riverside, California 92501
Central District
United States Courthouse
312 North Spring Street
Los Angeles, California 90012
I declare under penalty of perjury that the foregoing
is true and correct. Executed on December 2, 1991, at
Los Angeles, California.
Betty J. Malloy
(Original signed)
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