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DUPREE v. HERTZ CORP.

May 28, 1976

ANTHONY DUPREE, II on his behalf and on behalf of all others similarly situated
v.
HERTZ CORPORATION, individually and d/b/a HERTZ RENT-A-CAR



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 This suit is a class action charging racial discrimination in connection with employment. The complaint alleges discrimination on a national level in all aspects of hiring and promotion at Hertz Corporation. Hertz has filed a motion to dismiss various portions of the plaintiff's complaint. This motion raises three separate issues involving the sufficiency of the plaintiff's allegations under 42 U.S.C. § 1985(3), the appropriate statute of limitations to apply to an action under § 1985(3), and the proper scope of an employment discrimination action in relation to the plaintiff's charge of discrimination filed with the Equal Employment Opportunity Commission. The defendant's motion must be granted in part and denied in part.

 Hertz's first argument is that the complaint does not state a cause of action under 42 U.S.C. § 1985(3). In Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), the Supreme Court has set forth the elements that must be alleged to state a cause of action under § 1985(3). The complaint must allege: (1) that the defendants conspired; (2) that the purpose of the conspiracy was to deprive the plaintiff of equal protection of the laws or of equal privileges and immunities under the laws; (3) that at least one of the conspirators committed an overt act in furtherance of the conspiracy; and (4) that the plaintiff suffered injury as a result of such acts. The complaint in this case does not meet these criteria. There are no allegations of conspiracy or of an intent to conspire, and no facts are alleged which set forth such a conspiracy. Consequently, the complaint does not state a cause of action under § 1985(3), and that portion of the complaint must be dismissed.

 However, because it appears likely that the plaintiff can correct the defective allegations of the complaint, the plaintiff will be granted leave to amend. Under Rule 15 of the Federal Rules of Civil Procedure, amendments must be freely allowed, and leave to amend should ordinarily be granted when a complaint is dismissed for failure to state a claim. See 3 Moore's Federal Practice para. 15.10. The defendant will not be prejudiced if an amendment is allowed at this early stage of the litigation, so leave to amend should be permitted. See Dozier v. Chupka, 395 F. Supp. 836, 848 (S.D. Ohio 1975).

 Since the plaintiff presumably can correct the deficiencies in the complaint under Griffin v. Breckenridge, supra, we also must consider the defendant's additional challenges to the § 1985(3) claim. In fact, granting leave to amend is a useless gesture if a properly pleaded § 1985(3) claim nevertheless must be dismissed. The defendant's first argument is that a single corporation cannot conspire with itself in violation of § 1985(3). This seemingly simple argument has resulted in inconsistent lower court decisions. Some courts have held that a complaint naming corporate officials and the corporation itself does state a claim under § 1985(3): Jackson v. University of Pittsburgh, 405 F. Supp. 607 (W.D. Pa. 1975); Rackin v. University of Pennsylvania, 386 F. Supp. 992, 1005 (E.D. Pa. 1974). Other courts have refused to recognize such conspiracies: Girard v. 94th Street and Fifth Avenue Corp., et al., 530 F.2d 66 (2d Cir. 1976), affirming 396 F. Supp. 450 (S.D.N.Y. 1975); Baker v. Stuart Broadcasting Corp., 505 F.2d 181 (8th Cir. 1974); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Cole v. University of Hartford, 391 F. Supp. 888 (D. Conn. 1975).

 These cases indicate that the size of the corporation, the number of acts of discrimination, and the number of persons or entities involved in making corporate decisions must be considered in applying § 1985(3) to a single firm conspiracy. Here the defendant is a very large corporation with numerous separate offices, the complaint alleges a broad policy of discrimination rather than a single discriminatory act, and the plaintiff is not challenging a specific, formally adopted corporate policy. Moreover, the complaint alleges the involvement of franchisees who are not directly controlled by the defendant, Hertz Corporation. These allegations bring this case closer to the factual situation in Rackin v. University of Pennsylvania, than to the facts in the Girard and Dombrowski line of cases. At any rate, the allegations are sufficient to withstand a motion to dismiss. See Beamon v. W. B. Saunders Co., 413 F. Supp. 1167 (E.D. Pa. 1976) (Slip opinion at 15).

 Hertz next challenges the § 1985(3) claim on the basis of the statute of limitations. The limitations period for actions brought under § 1985(3) must be determined by reference to the most nearly analogous state statute of limitations. Young v. International Telephone and Telegraph Co., 438 F.2d 757 (3d Cir. 1971). In Pennsylvania, district courts have split in deciding what limitations provision is most applicable to employment discrimination claims. Several cases from the Western District of Pennsylvania have applied the two-year statute of limitations for tort actions to employment discrimination cases. (12 P.S. § 34) Davis v. United States Steel Corp., 405 F. Supp. 394, 12 F.E.P. 1 (W.D. Pa.1976); Wilson v. Sharon Steel Corp., 399 F. Supp. 403 (W.D. Pa. 1975). Judge Bechtle of this District recently expressed his agreement with these decisions in Presseisen v. Swarthmore College, 71 F.R.D. 34 (E.D. Pa. 1976). On the other hand, three cases from the Eastern District of Pennsylvania have held that Pennsylvania's six-year statute of limitations for actions on contracts should be applied in employment discrimination cases. Beamon v. W. B. Saunders Co., 413 F. Supp. 1167 (E.D. Pa. 1976); Dudley v. Textron, Inc., 386 F. Supp. 602 (E.D. Pa. 1975); Jones v. United Gas Improvement Corp., 383 F. Supp. 420 (E.D. Pa. 1974).

 We believe that the cases applying the six-year statute of limitations are more persuasive. To begin with, certain practical considerations involving the relationship between the Civil Rights Acts and Title VII call for a relatively long statute of limitations in employment discrimination cases brought under § 1981 or § 1985(3). As stated by Judge Fullam in Beamon v. W.B. Saunders Co., supra :

 This problem is illustrated in the present case, since the plaintiff did not receive an EEOC notice of right to bring suit on his Title VII claims until more than two years after the alleged discrimination. Enforcement of a short statute of limitations in such a situation would be inefficient because a plaintiff would have to bring suit on his § 1981 or § 1985 claims before he is permitted to sue on Title VII claims growing out of the same incident. Moreover, there is no rationale for a short statute of limitations, since commencement of the administrative proceedings before the EEOC puts the defendant on notice of the claim and gives it an opportunity to preserve relevant evidence.

 Sound legal principles also favor application of Pennsylvania's six-year statute of limitations rather than the two-year statute applicable to tort actions involving personal injuries. The two-year statute provides as follows:

 
§ 34 Limitations in cases of Personal Injury
 
"Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; in cases where the injury does result in death the ...

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