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United States District Court, Northern District of Illinois, E.D

August 25, 1980


The opinion of the court was delivered by: Shadur, District Judge.


Defendant Central Steel & Wire Co. ("Central") has moved in the alternative to dismiss the Amended Complaint*fn1 filed by plaintiff George Badillo ("Badillo") or to strike various of the Amended Complaint's allegations. For the reasons stated in this opinion and order, Central's motion is granted in part and denied in part.


In January 1977 Badillo filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the "EEOC") claiming that his discharge by Central had been unlawfully based on Badillo's national origin. On March 17, 1979 Badillo received a Notice of Right to Sue from the EEOC. Badillo filed the initial complaint in this case pro se on May 23, 1979,*fn2 Paragraph A of which charged the following discriminatory acts by Central:

  (b) Defendant terminated plaintiff's employment
      because of plaintiff's race . . . [and]
      national origin. . .

  (d) Because of plaintiff's race . . . [and]
      national origin, defendant committed the
      following act or acts against plaintiff: The
      Employer's agents intimidated me and other
      workers on the basis of our race and/or
      national origin. The employer engaged in
      discriminatory hiring practices.

That complaint was not served on Central because Badillo failed to file the form that initiates service of process.

At a September 25, 1979 status hearing initiated by Judge Marshall (counsel having appeared for Badillo on that date), leave was granted to file an Amended Complaint. That Amended Complaint was filed October 9, 1979 and served on Central October 12, 1979.*fn3 It expands the allegations of the original complaint materially:

  1.  It contains, as the original complaint did
      not, specific class allegations under
      Fed.R.Civ.P. 23(b)(2) (though Paragraph 9 of
      the original complaint had included the
      reference to "other workers" quoted above).
      Moreover the Amended Complaint defined the
      purported class (as the original complaint
      did not) as "all blacks, females and persons
      discriminated against because of their
      national origin who have been or will be
      employed by Central Steel, and who have been,
      are being, or as a result of the operation of
      current policies will be discriminated

      against in terms and conditions of
      employment, such as hiring, training,
      placement, assignments, promotion, transfer,
      termination, layoff, and discipline, because
      of their national origin, race, or sex."

  2.  Count I charges various discriminatory
      policies and practices against class members
      generally and Badillo individually in
      violation of Title VII of the Civil Rights
      Act of 1964 ("Title VII").

  3.  Count II charges that the allegedly
      discriminatory policies and practices have
      violated the rights of "Badillo and other
      black*fn4 and national origin members of the
      class" under 42 U.S.C. § 1981.

  4.  Count III charges that various policies and
      practices, allegedly discriminatory against
      female members of the class, have violated
      the rights of such female class members under
      Title VII and the rights of Badillo
      personally by depriving him of a
      nondiscriminatory place of employment.

      Jurisdictional Limitations as to Badillo's Individual

As already implied by footnote 1, Badillo's Section 1981 claims under Count II do not involve any procedural prerequisite comparable to the ninety-day jurisdictional condition that attaches to Title VII claims. Instead the appropriate Illinois statute of limitations applies (and is not in question in this case).

As for Badillo's Title VII claims, however, the answer to the critical ninety-day jurisdictional question depends on the effect of Badillo's original complaint: If Badillo is relegated to any of the relevant dates (see footnote 3) under the Amended Complaint, this suit is untimely. In turn, that issue depends on the interaction or lack of interaction of Fed.R.Civ.P. 3 and 4(a) for limitation purposes.*fn5

Rule 3 states without qualification:

  A civil action is commenced by filing a complaint
  with the Court.

Nonetheless several courts have held that it must be read in conjunction with Rule 4(a), so that the statute of limitations is not tolled unless the summons is properly issued and placed for service (as was not done by Badillo here). See, e. g., 2 Moore's Federal Practice ¶ 3.07[4.-3-2] at 3-117 and 118 and cases there cited.

But that result is clearly the product of judicial legislation, and it poses the problems that judicial legislation always presents. When the Federal Rules of Civil Procedure were first considered for adoption in 1936, the original Advisory Committee considered two alternatives, one of which would have provided that an action would be commenced by the service of process and the other of which would have equated the commencement of an action with the filing of the complaint, with a further provision that the action would abate unless service was made within sixty days.*fn6 Neither of those alternatives was adopted; instead Rule 3 has adopted the second alternative but specifically deleted the provision requiring prompt service of process.

That deletion must be given significance in construing Rule 3 (Central's argument, by reading Rule 4(a) back into Rule 3, would effectively construe Rule 3 as if the deletion had not taken place). Indeed the structure of the Federal Rules may be contrasted with the Illinois situation, applied by our Court of Appeals in Dewey v. Farchone, 460 F.2d 1338 (7th Cir. 1972). In that diversity case, a statute of limitations question was decided in light of Illinois Supreme Court Rule 103(b), which specifically (like the originally proposed Fed.R.Civ.P. 3, but unlike Rule 3 as actually adopted) provides for dismissal of an action if the plaintiff fails to exercise reasonable diligence to obtain service.

Statutes of limitations are of course statutes of repose, intended to provide defendants with the certainty that they will not be confronted with claims once the specified date has passed. But that purpose of certainty would not be fully served by the rule for which Central contends. Under such a rule, a suit would still be timely if filed within the limitation period (a date certain) even though process was served within some undefined period thereafter (sufficient to satisfy the requirement of due diligence).

It may well be argued that the goal of certainty cuts against Central's position. Under a literal reading of Rule 3, at least the plaintiff has the certainty of knowing that a complaint filed within the statute of limitations is timely, though the unserved and unknowing defendant has no such certainty. By way of contrast, under Central's non-literal reading of Rule 3, both the plaintiff and defendant are subject to uncertainty because of the variable concept of due diligence.

It should be observed that defendants are not without remedy against abuse in this area. They may invoke the dismissal-for-want-of-prosecution provisions of Fed.R.Civ.P. 41(b), and principles of estoppel or other equitable doctrines would protect them against demonstrable prejudice.*fn7 There is however no showing in this case that the time interval between June 15, 1979 (when the ninety-day period after the right-to-sue letter expired) and October 12, 1979 (when Central first learned of the suit) created any greater inability on Central's part to defend against this suit on the merits.*fn8

More than forty years have passed under the Federal Rules, but the Supreme Court has not had occasion to resolve the issue presented here.*fn9 Absent controlling precedent from our own Court of Appeals, this Court is disinclined to engage in judicial legislation by reinserting the requirement of due diligence into Rule 3. Instead this Court adheres to the strict construction of Rule 3 adopted by the Eighth Circuit in Moore Co. v. Sid Richardson Carbon & Gasoline Co., 347 F.2d 921, 925 (8th Cir. 1965), cert. denied 383 U.S. 925, 86 S.Ct. 927, 15 L.Ed.2d 845 (1966):

  No reasonable basis exists for engrafting upon
  the rule or statute a condition that summons be
  served with diligence. If Congress or the rule
  makers had intended to impose such condition, it
  would have

  been a simple matter to include the condition by
  appropriate language in the rule or the statute.
  As heretofore pointed out, the Rules Committee
  deliberately chose not to impose any such

Accordingly Central's motion to dismiss Badillo's Title VII claim for failure to meet the 90-day jurisdictional requirement is denied.

   Jurisdictional Limitations as to Badillo's Title VII Class

As footnote 5 of this opinion indicates, the second sentence of Fed.R.Civ.P. 15(c) is not a proper ground for dismissal based on the identity of the defendant in the Amended Complaint (Central having been the named defendant from the inception). But the approach manifested by that provision clearly does bear on the propriety of adding Title VII plaintiffs after the ninety-day jurisdictional period had elapsed. As the Supreme Court stated in American Pipe & Construction v. Utah, 414 U.S. 538, 554-55, 94 S.Ct. 756, 766-767, 38 L.Ed.2d 713 (1974):

  The policies of ensuring essential fairness to
  defendants [with respect to the statute of
  limitations] . . . are satisfied when, as here, a
  named plaintiff who is found to be representative
  of a class commences a suit and thereby notifies
  the defendants not only of the substantive claims
  being brought against them, but also of the
  number and generic identities of the potential
  plaintiffs who may participate in the judgment.
  Within the period set by the statute of
  limitations, the defendants have the essential
  information necessary to determine both the
  subject matter and size of the prospective
  litigation, whether the actual trial is conducted
  in the form of a class action, as a joint suit,
  or as a principal suit with additional

Accord as to adding class allegations for the first time after the statute of limitations has run, Arneil v. Ramsey, 550 F.2d 774, 782-83 (2d Cir. 1977); Perry v. Beneficial Finance Co., 81 F.R.D. 490, 495 (W.D.N.Y. 1979).*fn10

Under the analysis contained in the prior section of this opinion, Badillo's filing of his original complaint within the ninety-day period satisfied the general jurisdictional requirement for Title VII claims. Rule 15(c)'s first sentence, however, teaches that the Amended Complaint has the benefit of that date only to the extent that its claims "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." That is plainly not the case as to the class discrimination allegations of Count III relating to women, and Central's motion to strike such allegations is granted.

As for the allegations of discrimination against Blacks, it would appear to involve considerable stretching to read Paragraph 9(d) of the original complaint, which referred to intimidation of "me and other workers on the basis of our race and/or national origin," to encompass Blacks (the overall thrust of that paragraph plainly speaks in terms of plaintiff's race and national origin). That question need not be decided, however, in view of the standing discussion in the next section of this opinion.

Finally, as to other persons who would fall within the race and national origin class of which Badillo is a member, the question is whether the original complaint can fairly be read as having asserted a claim on behalf of that class of plaintiffs. Although the original complaint did not contain the same well-drafted Rule 23 allegations as the Amended Complaint, it clearly did assert discrimination against persons other than Badillo ("me and other workers") on the basis of their race and national origin. Accordingly Central's motion to strike such class allegations in the Amended Complaint is denied.

Sustainability of Title VII Class Allegations on other Grounds

Title VII's requirement of an EEOC filing before suit is brought serves a useful purpose. That purpose, however, would be disserved if the scope of the subsequent lawsuit were not directly linked to the scope of the complainant's charge to the EEOC-or, because such charges are often filed by unsophisticated persons, at least linked to the scope of the EEOC investigation stemming from that charge. Here Badillo's EEOC charge was based on the alleged national-origin reason for his discharge. EEOC's investigation and right-to-sue letter expanded the inquiry to Central's hiring policies as to Blacks and Spanish-surnamed persons and its discharge policies as to Spanish-surnamed persons.

That does not end the inquiry, however. Merely because an individual complaint has triggered a broader discrimination investigation, the complainant is not thereby entitled to assert the rights of others — of a group to which the complainant does not belong — that the EEOC's investigation indicates have also been discriminated against.

That problem is not simply one of class certification, as Badillo contends. It goes to the heart of this Court's basic Article III jurisdiction on "case and controversy" grounds, often characterized in terms of "standing." As the Supreme Court stated in Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975):

  [T]he standing question is whether the plaintiff
  has "alleged such a personal stake in the outcome
  of the controversy" as to warrant his invocation
  of federal-court jurisdiction and to justify
  exercise of the court's remedial powers on his
  behalf. . . . The Art. III judicial power exists
  only to redress or otherwise to protect against
  injury to the complaining party, even though the
  court's judgment may benefit others collaterally.
  A federal court's jurisdiction therefore can be
  invoked only when the plaintiff himself has
  suffered "some threatened or actual injury
  resulting from the putatively illegal
  action. . . ."

In a major sense the so-called typicality requirement of Fed.R.Civ.P. 23(a)(3) and the so-called adequacy of representation requirement of Fed.R.Civ.P. 23(a)(4) are facets of the standing question.*fn11 But the fact that lack of standing is a jurisdictional defect under Article III militates against deferring the Court's determination on that score to a later submission on class certification, at least where the standing issues are squarely presented on the face of the complaint.

This Court agrees with Central's position that Badillo lacks standing to assert claims based on allegedly discriminatory practices against women*fn12 and Blacks*fn13 (save only the argument that he personally was deprived of a discrimination-free working environment, as alleged under Paragraph 15 of the Amended Complaint with respect to discrimination against women).*fn14 Having been hired by Central, Badillo likewise lacks standing to sue to protect the rights of others allegedly discriminated against by Central's non hiring on racial grounds. And the game is true as to any other allegedly discriminatory practices by Central that might exist*fn15 and might have affected other employees or prospective employees, but that plainly have not impacted Badillo or members of his class directly.

Accordingly this Court grants Central's motion based on standing considerations to the extent indicated by this section of this opinion.


As a result of this opinion the surviving allegations of the Amended Complaint take on a patchwork quality. To enable defendant to file an appropriate responsive pleading (and not because the entire Amended Complaint is faulty), the Court deems the most appropriate order to be one striking the Amended Complaint, granting Badillo leave to file a Second Amended Complaint conforming to this opinion within 21 days and granting Central the right to file its answer within 21 days thereafter. That order is hereby entered.

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