The opinion of the court was delivered by: BRODERICK
Presently before the Court is the defendant's motion to dismiss certain of the claims made in the plaintiffs' complaint. In its motion the defendant contends that (1) the claim of plaintiffs under Title VII, 42 U.S.C. § 2000e et seq. must be dismissed because none of the named plaintiffs have sufficiently alleged in their complaint their compliance with the procedural jurisdictional prerequisites for filing a civil complaint under the Act; (2) the plaintiffs have failed to allege a conspiracy under 42 U.S.C. § 1985(3) and hence have failed to state a claim under that statute because a corporation cannot conspire with itself; and (3) plaintiff Beverly Johnson has failed to state a claim for sex discrimination under 42 U.S.C. § 1981 because § 1981 is applicable only to claims of race discrimination. Also before the Court is the motion of the plaintiffs to amend their complaint. For the reasons stated herein, we have determined that we must grant the plaintiffs' motion to amend their complaint and in ruling on the defendant's motions, we have considered the complaint as amended. We have also determined that we must grant the defendant's motion to dismiss Herbert A. Dailey, Frederick A. Byrd, Barry J. Friday, Charles Robinson and Beverly Johnson as named plaintiffs in connection with the Title VII claim alleged in the amended complaint, but must deny its motion in connection with Title VII as to plaintiffs James Bates and Eugene Ivory; that we will grant the defendant's motion to dismiss the plaintiffs' claim under 42 U.S.C. § 1985(3); and that we will grant the defendant's motion to dismiss plaintiff Beverly Johnson's claim under 42 U.S.C. § 1981 alleging sex discrimination.
Motion To Amend Complaint.
The plaintiffs filed this action on May 23, 1973. The plaintiffs alleged that the defendant Western Electric had followed employment procedures at its King of Prussia plant which are both racially and sexually discriminatory. Plaintiffs contend that these employment practices violate Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1985(3); and 42 U.S.C. § 1981. The defendant has moved to dismiss the plaintiffs' claims in connection with Title VII on the ground that the complaint fails to allege that any of the plaintiffs have complied with the procedural prerequisites for filing a civil action pursuant to the Act. Furthermore, the defendant contends that the discovery undertaken by the parties reveals that in fact none of the named plaintiffs have complied with the procedural prerequisites for the filing of a civil suit pursuant to Title VII. On September 16, 1975, following the extensive discovery undertaken in connection with the defendant's motion to dismiss and the oral argument held thereon, the plaintiffs moved for leave to file an amended complaint. The plaintiffs' proposed amendment attempts to cure the pleading defects alleged by the defendant to be present in their original complaint and sets forth the uncontested facts in connection with the procedures followed by the named plaintiffs prior to the filing of their Title VII civil suit. The amended complaint sets forth the respective plaintiffs' allegations in connection with the filing of charges with the Equal Employment Opportunity Commission (EEOC) and also alleges that certain named plaintiffs received right to sue letters from the EEOC pursuant to 42 U.S.C. § 2000e-5(f)(1) on May 25, 1973, two days after the original complaint was filed. Plaintiffs seek to have their amended complaint, including the factual allegations contained therein which were not in existence at the time of the filing of the original complaint, relate back to the filing of the original complaint pursuant to Rule 15(c) of the Federal Rules of Civil Procedure. The defendant opposes the proposed amendment and argues that the jurisdictional facts contained in the amended complaint which were not in existence at the time of the filing of the original complaint cannot relate back and therefore the amended complaint alleging the requisite jurisdictional facts was not filed within ninety days of the plaintiffs' receipt of right to sue letters as required by 42 U.S.C. § 2000e-5(f)(1) and must be dismissed.
Rule 15(a) of the Federal Rules of Civil Procedure reads as follows, in pertinent part:
A party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
It is clear from the Rule that while the granting of leave to file an amended complaint is within the sound discretion of the trial court, leave to do so shall be freely given when justice requires. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971); Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Wolff v. Calla, 288 F. Supp. 891 (E.D. Pa. 1968).
As the Supreme Court stated in Foman v. Davis, supra, at 182:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be "freely given."
With respect to the allegations in the plaintiffs' amended complaint which allege events occurring after the date of the original complaint, Rule 15(d) of the Federal Rules of Civil Procedure provides as follows:
Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
An application for leave to file a supplemental pleading like an application for leave to amend a complaint is addressed to the sound discretion of the trial court and should be freely granted when doing so will promote the justiciable disposition of the case, will not cause undue prejudice or delay or trial inconvenience and will not prejudice the rights of any parties to the action. Wright and Miller, Federal Practice and Procedure: Civil § 1504 at 542-43. Both amended and supplemental complaints are particularly appropriate for correcting defective allegations of jurisdiction in an original complaint. Fujii v. Dulles, 224 F.2d 906 (9th Cir. 1955); Montgomery Environmental Coalition v. Fri, 366 F. Supp. 261 (D.C. D.C. 1973).2a This is particularly so in this case where the amendment will cause no delay in the trial of this case nor prejudice the defendant in any way. The amended complaint adds no new parties or claims but merely supplements the complaint by alleging jurisdictional facts of which the defendant is fully aware by virtue of the extensive discovery which has taken place in connection with the motion to dismiss. Therefore, we will grant the motion to amend the plaintiffs' complaint.
Having decided to grant the plaintiffs leave to file an amended complaint, the issue remains as to whether the new pleading relates back to the filing of the original complaint. If not, any amended or supplemental complaint will clearly be filed later than ninety days after any of the plaintiffs received their right to sue letters from the EEOC. Rule 15(c) of the Federal Rules of Civil Procedure reads as follows, in pertinent part:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.