Opinion
1:02cv209-C
August 6, 2003
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the Court on the motion of Defendant Daniel J. Good, Sheriff of Rutherford County, North Carolina, to dismiss this action on the basis that the Complaint fails to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Having considered the pleadings, the parties' memoranda of law, and the arguments of counsel, the undersigned respectfully recommends that the Court deny Defendant's motion.
FACTUAL AND PROCEDURAL BACKGROUND
This action arises out of the termination of Plaintiff's employment with the Rutherford County Sheriff's Department on or about January 24, 2002, which Plaintiff alleges was the result of his reporting the alleged sexual harassment of fellow employees. Following his termination, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), naming the Rutherford County Sheriff's Department as respondent, and on August 9, 2002, the EEOC issued a notice of right to sue. Plaintiff filed this action against Rutherford County, North Carolina Sheriff's Department ("Sheriff's Department") on September 9, 2002, alleging that he was retaliated against for reporting the alleged sexual harassment of fellow employees in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-1 et seq. ("Title VII").
On November 1, 2002, the Sheriff's Department moved to dismiss Plaintiff's Complaint on the basis that the Sheriff's Department was not a "person" capable of being sued. Plaintiff responded in opposition to Defendant's motion and ultimately filed an amended complaint, naming Daniel J. Good, as Sheriff of Rutherford County, as a party defendant and omitting any reference to the Sheriff's Department as a defendant. Sheriff Good then filed the current motion to dismiss and argues that Plaintiff's amendment does not relate back to the date of Plaintiff's complaint and that his claims against Sheriff Good are, therefore, barred by the statute of limitations. Plaintiff filed a brief in opposition to Sheriff Good's motion, and the undersigned heard oral argument on the matter on July 22, 2003.
MOTION TO DISMISS STANDARD
A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957). In evaluating a motion to dismiss, "a court must accept the factual allegations of the complaint as true." GE Investment Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir. 2001).
DISCUSSION
The sole issue presented by Sheriff Good's motion to dismiss is whether the Amended Complaint, filed on February 13, 2003, relates back to the date of the filing of the original complaint, such that Plaintiff's allegations against Sheriff Good may be considered timely under Title VII, which generally requires that suit be filed within ninety (90) days of the issuance of a notice of right to sue by the EEOC. See 42 U.S.C. § 2000e-5(f)(1). Rule 15(c) of the Federal Rules of Civil Procedure governs the relation back of amended pleadings and provides, in pertinent part:
An amendment of a pleading relates back to the date of the original pleading when . . . the amendment changes the party or the naming of the party against whom a claim is asserted if [the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading] and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Fed.R.Civ.P. 15(c)(3). Under this rule, an amendment to add or substitute a party relates back to the filing of the original complaint where there has been an error made concerning the identity of the proper party — a "misnomer" — but an amendment may not relate back where the amending party simply did not know who the proper party was. See Wilson v. United States Government, 23 F.3d 559, 563 (1st Cir. 1994). With respect to the requirement that the party have received notice of the action,"notice may be deemed to have occurred when a party who has some reason to expect his potential involvement as a defendant hears of the commencement of litigation through some informal means." Singletary v. Pennsylvania Dep't of Corrections, 266 F.3d 186, 195 (3rd Cir. 2001); see also Eakins v. Reed, 710 F.2d 184, 188 (4th Cir. 1983) (party to be added received adequate notice of action to permit relation back of amendment where party filed affidavit taking responsibility for crucial decision and evidencing awareness that suit should have been brought against him). Additionally, several circuit courts of appeal have recognized the "shared attorney" method of imputing notice under Rule 15(c)(3), which is based on the premise that when an originally named party and the party sought to be added are represented by the same attorney, the attorney is likely to have communicated to the latter party that he may very well be joined in the action. See, e.g., Singletary, 266 F.3d at 196; Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989); Barkins v. International Inns, Inc., 825 F.2d 905, 907 (5th Cir. 1987); Berndt v. State of Tenn., 796 F.2d 879, 884 (6th Cir. 1986).
Here, while Sheriff Good protests that this case is not one of "misnomer," but rather, is one in which Plaintiff amended the Complaint to add an entirely different party from the one originally named as defendant, this argument ignores the fact that, similar to a corporation, the Sheriff's Department of Rutherford County is an entity comprised of people, of whom the Sheriff himself is the official representative. Thus, when Plaintiff named the Rutherford County Sheriff's Department as defendant and the Sheriff's Department filed its motion to dismiss, Sheriff Good, as official representative of that office, should have had knowledge of the lawsuit. Additionally, since the Sheriff's Department's position is that it cannot be sued, Sheriff Good should have known that but for Plaintiff's mistake in identifying the proper defendant — by naming Sheriff Good in his official capacity as sheriff, rather than the Department itself — he would have been named as the defendant in this case. It is also important to note that throughout the complaint and conciliation process before the EEOC, the Sheriffs Department was named as respondent in the same form it was named as the original defendant in this case, and there is no evidence that the Sheriffs Department ever informed Plaintiff that it could not be sued and that Plaintiff, instead, needed to name the sheriff in his official capacity. Finally, the undersigned notes that both the Sheriff's Department and Sheriff Good are represented by the same counsel. Accordingly, under the case law imputing notice of a lawsuit to a party based on the "shared attorney" method of imputing notice, Sheriff Good was also on notice of the institution of the action. For all of these reasons, the Amended Complaint, filed by Plaintiff on February 13, 2003, relates back to the date of the filing of the original complaint, and the undersigned recommends that Plaintiff's claims against Sheriff Good not be dismissed as untimely.
RECOMMENDATION
For the foregoing reasons, the undersigned respectfully RECOMMENDS that Sheriff Good's motion to dismiss (# 8) be DENIED. The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the Court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 473 (1985); United States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984).