Willie JOHNSON, Jr., Plaintiff-Appellant, v. RAILWAY EXPRESS AGENCY, INC., et al., Defendants-Appellees, 489 F.2d 525

WEICK, Circuit Judge. This appeal is from an order of the District Court dismissing plaintiff’s complaint which alleged employment discrimination. Plaintiff-appellant, Willie Johnson, filed timely charges with Equal Employment Opportunity Commission (EEOC) 1967 in which he alleged that his employer, Railway Express Agency, Inc. (REA), discriminated against him with regard to seniority rules and job assignments. Johnson further asserted that he had been discharged by REA because of his race (black).

Johnson also charged the Brotherhood of Railway Clerks Tri-State Local and the Lily of the Valley Local with maintaining segregated Locals. On December 22, 1967 EEOC filed a report concluding that the company and the unions had engaged in discriminatory practices; however, it was not until January 15, 1971 that Johnson received his notice of right to sue letter from EEOC. Initially Johnson was unable to retain a lawyer to file suit authorized by the letter.

On February 12, 1971 District' Judge Bailey Brown allowed Johnson to file the EEOC notice-letter with the Clerk as satisfying the duty to institute suit within thirty days from date of receiving notice. Judge Brown further allowed Johnson to proceed in forma pawperis and appointed an attorney to represent him. The court-appointed attorney filed an amended complaint on March 18, 1971, setting forth iri more detail Johnson’s claims. At this point both defendants moved for

summary judgment supported by affidavits. The unions also propounded to plaintiff interrogatories, which he answered. Plaintiff submitted no affidavits in opposition to these motions. On June 14, 1971 the Court entered an order which— (1) dismissed all claims based on statutes other than Title VII of the 1964 ■ Civil Rights Act as barred by Tennessee’s one-year statute of limitations, (2) denied the defendants’ claims that the filing of the EEOC notice-letter was insufficient to meet the thirty-day filing requirement, (3) granted the two unions’ motions for

summary judgment, holding that the plaintiff had no claim against them under the 1964 Civil Rights Act, (4) granted the motion of REA for

summary judgment regarding improper supervisory training, and (5) denied REA’s motion for

summary judgment regarding Johnson’s claims of discriminatory discharge, denial of promotional opportunities, and discrimination in job assignment. After this ruling, REA offered Johnson one hundred fifty dollars in settlement of the case; Johnson refused. Subsequently the case was assigned for trial and Johnson’s court-appointed attorney, with the Court’s permission, withdrew from the case on January 14, 1972.

On that date the Clerk of the District Court, acting pursuant to the Court’s direction, wrote a letter to Johnson giving him thirty days in which to obtain a new attorney or have his case dismissed without prejudice. Johnson did not obtain a new attorney within such time, and on February 16, 1972 Judge Brown entered an order dismissing the action without prejudice. We need not determine the propriety of this order because it was a final order from which no appeal was taken.

On February 17, 1972 William Caldwell, now one of Johnson’s lawyers, wrote to Judge Brown informing him that he, Caldwell, was looking for financial support which would enable him to take Johnson’s case. The letter was clearly not an announcement that Caldwell was his counsel; the letter stated only that he might be Johnson’s counsel at some point in the future. Later Caldwell found such financial support and did undertake to represent Johnson. On May 31, 1972 a second complaint was filed against REA and the unions, with Caldwell acting as counsel for Johnson.

All of the defendants moved for dismissal or, in the alternative, for

summary judgment. The case was assigned to District Judge Wellford, who ruled on these motions on January 25, 1973. First, the Court dismissed Johnson’s claims against the unions on grounds of res judicata, holding that the present suit involved the same parties and the same subject matter decided in the first action where

summary judgment was granted by Judge Brown. Second, the Court held that Johnson’s claims of violation of his civil rights under 42 U.S.C. § 1981 through 1988, were barred by Tennessee’s one-year statute of limitations. Third, the Court found that Johnson did not pursue properly his administrative remedies under the Railway Labor Act. Fourth, the Court held that res judicata barred Johnson’s claims against REA on the issue of supervisory training.

Fifth, the Court ruled that Johnson’s failure to refile a lawsuit within thirty days from February 16, 1972 (the date of dismissal without prejudice) resulted in a failure to comply with the thirty-day filing requirement. We will deal first with the thirty-day filing requirement since failure to meet it results in a lack of jurisdiction. Goodman v. City Prods. Corp., 425 F.2d 702 (6th Cir. 1970). Johnson contends that he was not required to file suit within thirty days after dismissal without prejudice.

He argues that the only statutory requirement is that he file his original suit within thirty days after receipt of his notice-letter. We disagree. We rely on our decision in Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962), and the decision in McClendon v. North American Rockwell Corp., 2 CCH Employment Prac. Dee., Par. 10,243 (C.D.Cal.1970). In Bomer, plaintiff’s request for increased benefits under the Social Security Act was denied on August 4, 1959.

He was advised that he could file a civil action within sixty days, challenging this determination, since there was a statutory procedure for such challenge within that time span. He filed such suit on September 30, 1959. On May 5, 1960, on his motion his case was dismissed without prejudice. Plaintiff later refiled his action on May 1, 1961. The Government moved to dismiss, contending that the plaintiff failed to commence suit within sixty days after notice of the final decision on August 4, 1959. The District Judge granted the Government’s motion and dismissed the ease.

In affirming, Judge Shackelford Miller wrote for a unanimous court: An action dismissed without prejudice leaves the situation the same as if the suit had never been brought. A. B. Dick Co. v. Marr, 197 F.2d 498, 502, C.A. 2nd; cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680, rehearing denied, 344 U.S. 905, 73 S.Ct. 282, 97 L.Ed. 699; Bryan v. Smith, 174 F.2d 212, 214, C.A. 7th. In the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the time during which the action so dismissed was pending. Humphreys v.

United States, 272 F.2d 411, 412, C.A. 9th; Willard v. Wood, 164 U.S. 502, 523, 17 S.Ct. 176, 41 L.Ed. 531; DiSabatino v. Mertz, 82 F.Supp. 248, 249-250, M.D.Pa. The right of action here sought to be enforced is one created by statute and is limited by the provisions thereof as to the time within which the right must be asserted. Such conditions operate as a condition of liability rather than as a period of limitation and there can be no recovery unless the condition precedent is fulfilled. Zeller v. Folsom, 150 F.Supp. 615, 617, N.D.N.Y.; Coy v. Folsom, 228 F.2d 276, 279-280, C.A. 3rd; Ewing v.

Risher, 176 F.2d 641, C.A. 10th; Scott v. Railroad Retirement Board, 227 F.2d 684, 686, C.A. 7th. (304 F.2d at 428, 429) Additionally, in Kington v. United States, 396 F.2d 9 (6th Cir. 1968), we held that filing of previous actions in state and federal courts, which were voluntarily dismissed, did not toll the two- ' year statute of limitations of the Federal Tort Claims Act. 28 U.S.C. § 2401(b). McClendon, supra, is the case factually closest to the one at bar.

There, plaintiff received a right to sue letter on January 15, 1968, and filed an action on January 19, 1968 which was dismissed without prejudice on September 9, 1969. On October 29, 1969, fifty days later, the plaintiff filed another complaint, identical to the first. Defendant moved for dismissal on the ground that the court lacked subject matter jurisdiction since the complaint was not filed within thirty days following receipt of the right to sue letter.

In McClerúdon the District Court noted that the effect of voluntary dismissals without prejudice, absent a savings statute, was to create a situation the same as though the suit had never been brought. The Court stated: Even assuming that the jurisdictional time period should begin to run anew as of the date of voluntary dismissal was entered, such a position would be of no benefit to plaintiff in this case. Dismissal was ordered on September 9, 1969. Suit, however, was brought on October 29, some fifty days later. Thus even if the

Section 706(

e) time period of thirty days was tolled by the first suit, plaintiff’s new suit would still be jurisdictionally defective. 2 CCH E.P.Dec. at 974. Although Bomer and McClendon are authority for the proposition that the filing of a suit which was dismissed without prejudice did not toll the thirty-day filing requirement of Title VII, the District Court was of the view that the complaint should have been refiled within thirty days after such dismissal. But, even extending the time an additional thirty days, the new suit was still jurisdictionally defective because it was not filed within that time.

We are of the opinion that the District Court was clearly correct in holding that at a minimum Johnson had to file the new case within thirty days from the date of dismissal without prejudice. Any other holding would result in plaintiff’s having no time limitation to refile in this type of an action after the action had been dismissed without prejudice. Such latitude for a plaintiff would create uncertainty, delay in processing his claim, and the possibility of stale claims being pursued. Here, the claim was already stale before the initial suit was filed. 42 U.S.C. § 2000e-5(

e) was meant to eliminate such possibilities. Any error that was committed was an error in favor of appellant Johnson. He failed to comply even with the District Court’s liberal

interpretation of the requirement by his failure to file within thirty days after dismissal. The Title VII claims are thus barred since the Court was without jurisdiction to hear the charges set forth in the new complaint filed on May 31, 1972. The second question for consideration is whether Johnson’s claims under 42 U.S.C. §§ 1981, 1982 and 1983, were time-barred by a Tennessee statute of limitations. Both Judge Brown’s first ruling and Judge Wellford’s later order found that these claims were time-barred. We agree.

It is the duty of Federal Courts to apply the state statute of limitations most analogous to these actions. Appellant agrees with this but differs only as to what is the most analogous statute. We feel that the most analogous statute is Title 28,

Section 304, of the Tennessee Code. It reads as follows: Personal tort actions — Malpractice of attorneys — Civil rights actions — • Statutory penalties. — Actions for libel, for injuries to the person, false imprisonment, malicious prosecution, criminal conversation, seduction, breach of marriage promise, actions and suits against attorneys for malpractice whether said actions are grounded or based in contract or tort, civil actions for compensatory or punitive damages, or both, brought under the federal civil rights statutes, and statutory penalties shall be commenced within one (1) year after cause of action accrued. Appellant contends that. while this state statute,

Section 304, is appropriate for Sections 1983 and 1985 actions, it is not appropriate for § 1981 actions. However, Snyder v. Swann, 313 F.Supp. 1267 (E.D.Tenn.1970), held this precise statute applicable to a

Section 1981 action. Appellant further contends that his complaint sounds in contract and is governed by a six-year statute of limitations. In our opinion, the complaint sounds in tort rather than in contract. Moreover, the very language of the state statute refers to “civil actions . brought under the federal civil rights statutes.” Thus, the tort-contract dichotomy does not have to be resorted to, given the preciseness of the state statute. Finally on this point, appellant argues that filing of the charges with the EEOC tolls the statute of limitations under 42 U.S.C. § 1981. We reject this claim. In Williams v. Hollins, 428 F.2d 1221 (6th Cir. 1970), we declined to toll the statute in a

section 1983 action during the time when plaintiff was in a Tennessee jail, since

Section 301 of Title 28 of the Tennessee Code did not contain any such savings clause. In addition, appellant concedes the Title VII and

Section 1981 claims are independent. Thus, no reason exists for stopping the running of a state statute of limitations while a charge is pending before the EEOC. We have considered other points assigned as error, but in view of our disposition of the case they do not require discussion. The judgment of the District Court is affirmed.