McClellon v. Lone Star Gas Co.

United States Court of Appeals,

Fifth Circuit.

No. 95-10027

Summary Calendar.

Cheryl D. McCLELLON, Plaintiff-Appellant,

v.

LONE STAR GAS COMPANY, Defendant-Appellee.

Oct. 11, 1995.

Appeal from United States District Court from the Northern District
of Texas.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Cheryl D. McClellon appeals the district court judgment

dismissing her complaint with prejudice. The issue presented

herein is whether the appellant's amended complaint filed on June

29, 1994 related back to the deficient complaint filed on May 27,

1994, within the 90 day period provided in 42 U.S.C. § 2000e-

5(F)(1) for filing an appeal after issuance of an Equal Employment

Opportunity Commission ("EEOC") determination letter. We find that

the amended complaint did relate back to the deficient complaint.

For this reason, we reverse the district court's judgment which

dismissed her claim as untimely filed.

FACTS

On February 28, 1994, the EEOC issued a determination letter

which notified the claimant, Cheryl D. McClellon, that she had 90

days to file suit in federal district court against her former

employer, Lone Star Gas. On May 27, 1994, the clerk for the

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Northern District of Texas received a pro se document from

McClellon, which purported to be a complaint. The document

indicated that McClellon had not filed a claim in any other

jurisdiction, that she was denied the opportunity to return to work

after her doctor discharged her regarding a work-related injury,

and that she desired monetary compensation. On the same day, the

clerk also received McClellon's Motion for the Appointment of

Counsel and Declaration in Support of Request for the Court to

Appoint Counsel, both of which appear to be in proper form.

Although stamped by the clerk's office "May 27, 1994," the

purported complaint apparently was not considered as "filed"

because it did not satisfy the requirements of Federal Rule of

Civil Procedure 8. In a letter dated May 31, 1994, the magistrate

judge stated as follows:

We are in receipt of your complaint against Lone Star Gas.
[sic] Co. You must submit a complaint in conformity with Rule
8, Federal Rules of Civil Procedure, a copy of which is
enclosed. Your complaint must set forth every event that
happened leading up to your injury and what was said to you
and by whom when you tried to return to work. You must state
what amount you are seeking in compensation.

After you have completed your complaint, you should return it
to the undersigned.

The record contains another document which purports to be a

complaint, dated May 21, 1994, which was received June 22, 1994 and

filed June 29, 1994.

The magistrate judge granted McClellon permission to proceed

in forma pauperis and issued interrogatories to her on June 29,

1994. On July 15, 1994, McClellon responded to these

interrogatories by filing a copy of her EEOC Form 5 which set forth

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her charge of discrimination, the affidavit in support of this

charge, recommendation of the EEOC investigator, and the EEOC

determination letter. On July 20, 1994, the magistrate judge

ordered the clerk to issue a summons to Lone Star Gas in this

action, and referred the matter to the district court for any

further proceedings.

The defendant, ENSERCH d/b/a Lone Star Gas Company, filed a

motion to dismiss McClellon's case under rule 12 of the Federal

Rules of Civil Procedure for failure to timely file suit within the

90 day period, for lack of subject matter jurisdiction, and for

failure to state a claim. McClellon opposed, but did not file a

response to, the motion to dismiss. The district court agreed that

the complaint was filed outside the 90 day period and dismissed,

with prejudice, the June 29, 1994 complaint.

McClellon appeals, asserting that she filed her complaint on

May 27, 1994, within the applicable 90 day period; that the clerk

may not refuse to file a document solely because it is not in

proper form and there had been no order to strike the May 27, 1994

filing, therefore the June 22, 1994 "amended complaint" relates

back to that filing; and that she is entitled to equitable tolling

of the statute from the clerk's receipt of the May 27, 1994

complaint and a motion to appoint counsel. We agree that

McClellon's amended complaint relates back to the May 27, 1994

filing and reverse the district court's judgment.

DISCUSSION

We note at the outset that although McClellon makes four

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different arguments for the reversal of the district court

judgment, none of these arguments were presented to the district

court. Generally, appellate courts will not consider issues not

urged in the district court except when the failure to do so would

result in grave injustice. In re Goff, 812 F.2d 931, 933 (5th

Cir.1987); see also Yohev v. Collins, 985 F.2d 222, 225 (5th

Cir.1993) (holding that as a general rule issues not raised in the

district court are not considered for the first time on appeal);

Johns v. Louisiana Bd. of Trustees for State Colleges & Univ., 757

F.2d 698, 710 (5th Cir.1985) (holding that a non-movant cannot

attack summary judgment on appeal by raising issues that were not

before the district court). Although this rule applies to pro se

plaintiffs, see Yohev v. Collins, 985 F.2d 222, 285 (5th Cir.1993),

we are convinced that grave injustice will occur if we do not

consider the arguments raised by McClellon.

A. RULE 5(e) FILINGS

McClellon argues that the clerk of court violated rule 5(e)

of the Federal Rules of Civil Procedure by refusing to accept

McClellon's complaint. Although Lone Star Gas completely ignores

this argument, we will address it because the district court

apparently assumed that the May 27 complaint had not been accepted

as "filed." Without giving credence to the May 27 complaint

McClellon placed in the clerk of court's custody, the district

court held: "Plaintiff did not file this action until June 29,

1994, outside of the 90 day period."

Rule 5(e) provides that "[t]he clerk shall not refuse to

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accept for filing any paper presented for that purpose solely

because it is not presented in proper form as required by these

rules or any local rules or practices."1 Rule 5(e) on its face

mandates that the clerk accept pleadings for filing even when the

pleading technically does not conform with form requirements of the

Federal Rules of Civil Procedure or local rules. Rule 5(e), by

using the word "shall," removes from the clerk of court any

discretion in the decision to accept a technically deficient

pleading.

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Our research has unearthed no federal case law addressing
the applicability of rule 5(e) when the clerk of court rejects
pleadings that fail to conform with pleading requirements of the
Federal Rules of Civil Procedure. However, cases discussing
rejection based upon the lack of conformity with local rules are
persuasive because obstruction based on nonconformity infringes
the same policy considerations whether federal or local rules
disqualify a pleading. See Gilardi v. Schroeder, 833 F.2d 1226,
1233 (7th Cir.1987) (where the clerk erroneously rejected the
complaint filed with an application for in forma pauperis rather
than the filing fee, the appellate court noted that the plaintiff
in an employee discrimination case initiated proceedings within
the 90 day period because the complaint was regarded as "filed"
when placed in the custody of the clerk within the statutory
period although it failed to comply with form requirements);
Cintron v. Union Pacific R. Co., 813 F.2d 917, 920-21 (9th
Cir.1987) (holding that appellant constructively filed his
complaint when he delivered it to the clerk of court although he
was not in compliance with local rules because he did not punch
two holes at the top of the pleading and did not submit a civil
cover sheet or in compliance with federal rules because he
overpaid the filing fee); Loya v. Desert Sands Unified Sch.
Dist., 721 F.2d 279, 280 (9th Cir.1983) (where the clerk rejected
the plaintiff's timely presented complaint because it was typed
on 81/2 by 13 paper instead of 81/2 by 11 paper, the appellate
court commented: "This was error. A copy of the complaint
arrived in the hands of the Clerk within the statutory period.
To uphold the Clerk's rejection of it would be to elevate to the
status of a jurisdictional requirement a local rule designed
merely for the convenience of the court's own record keeping;
the district court should regard as "filed' a complaint which
arrives in the custody of the clerk within the statutory period
but fails to conform with formal requirements in local rules").

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 The Advisory Committee notes regarding the 1991 amendment to

rule 5(e) expressly delegates to the court the task of eliminating

insufficient pleadings: "This is not a suitable role for the

office of the clerk, and the practice exposes litigants to the

hazards of time bars; ... [t]he enforcement of these rules and of

the local rules is a role for a judicial officer." (emphasis

added). The judicial officer may order the party to correct the

defect or order the pleading stricken if warranted under the

circumstances. Accord Transamerica Corp. v. Nat'l Union Fire Ins.

143 F.R.D. 189, 191 (N.D.Ill.1992) (concluding that rule 5(e) did

not void a local rule authorizing the judge to strike insufficient

pleadings because "the Advisory Committee contemplated that a

judicial officer would strike nonconforming documents when

appropriate.") Accordingly, the clerk does not possess the power

to reject a pleading for lack of conformity with form requirements,

and a pleading is considered filed when placed in the possession of

the clerk of the court.

McClellon's complaint did not contain the elements enumerated

in rule 8. Although McClellon used key words which a lay man

reasonably could believe satisfied rule 8, the pleading was devoid

of the essential elements of a complaint. It did not establish the

grounds for the federal district court's jurisdiction, did not

clearly state that McClellon was entitled to relief, and did not

specify the amount of relief desired. The complaint read as

follows:

Complaint

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 The Claim has not been file[d] in [any] other jurisdiction.

Complaint

I have been denied the opportunity to return to work after
being released from the doctor from an on-the-job injury.

Demand

Monetary Compensation.

Nonetheless, in spite of the deficiencies presented, the clerk of

court had a duty to accept the pleading as filed. Rule 5(e)

usurped the clerk of court's ability to choose to reject or accept

McClellon's complaint. Consequently, McClellon's complaint should

have been considered "filed" until such time that the court ordered

the clerk of court to strike the pleading from the record, which

never occurred in the instant case.

Our review has not uncovered an order striking McClellon's

May 27 complaint. The magistrate judge sent a letter clarifying

the details which McClellon needed to add to her complaint. The

magistrate's letter neither stated nor suggested that McClellon's

May 27 complaint had been stricken. We hold that in the absence of

specific instructions from a "judicial officer," the clerk of court

lacks authority to refuse or to strike a pleading presented for

filing. Therefore, we further hold that McClellon filed her

complaint on May 27, well within the 90 day statutory period.

B. RELATION BACK UNDER RULE 15(c)

Although we find that McClellon filed her complaint on May

27, it obviously did not conform with the pleading requirements of

rule 8. Accordingly, we must determine whether the amended

complaint filed on June 29 related back to the May 27 complaint

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under rule 15(c) of the Federal Rules of Civil Procedure.

Rule 15(c) provides that "[a]n [a]mendment of a pleading

relates back to the date of the original pleading when ... 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[.]" (emphasis added).

Amendments that correct technical deficiencies in a pleading or

serve to expand the facts alleged in the original pleading satisfy

the relation back requirements of rule 15(c). 6A CHARLES A. WRIGHT,

ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE: CIVIL 2d §

1497 at 74 (2d Ed.1990); see also United States ex. rel. Canion v.

Randall & Blake, 817 F.2d 1188, 1191 (5th Cir.1987). Similarly, if

an amendment simply restates with greater particularity or

amplifies the details of the complaint, then the amendment

qualifies as information that the complainant "attempted to set

forth." See 6A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL

PRACTICE & PROCEDURE: CIVIL 2d § 1497 at 76. Further, amendments

designed to correct the statement of jurisdiction satisfy rule

15(c) and will relate back. Id. at 80-82.

McClellon's original complaint of May 27 "attempted to set

forth" the requisite information regarding jurisdiction and relief

for her employment discrimination claim. In the May 27 complaint,

she attempted to show her entitlement to relief by stating that her

employer refused to allow her to continue working after her

discharge from the doctor, and she requested "monetary relief"

because of her employer's actions. In the amended complaint (which

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admittedly still requires a more definite statement under rule 8),

McClellon specifies that her employer discriminated against her by

refusing to accommodate her with light duty work as ordered by her

doctor upon discharging her. In the amended complaint McClellon

expressly demands $600,000 in damages. It is apparent that the

conduct, transaction, or occurrence that is the subject of

McClellon's May 27 complaint evolves around actions by her employer

which prevented her from returning to work after treatment for a

disabling, on-the-job injury. The June 29 complaint merely

amplifies the details surrounding her injury and her employer's

refusal to permit her to work according to the doctor's

instructions. McClellon's amended complaint does not allege

anything new or attempt to add any new defendants. An obvious

nexus therefore exists between the jurisdiction and relief

McClellon "attempted to set forth" in the May 27 complaint and the

jurisdiction and relief actually set forth in the amended complaint

filed June 29.

We therefore hold that an amended complaint filed to cure

rule 8 pleading deficiencies relates back to the filing date of the

original, albeit deficient, complaint when the amended complaint

properly pleads what the party "attempted to set forth" in the

original complaint. This finding is even more compelling in light

of McClellon's "pro se status and liberality accorded the pleadings

of such parties." See Louisiana v. Litton Mortgage Co., 50 F.3d

1298, 1303 (5th Cir.1995). Thus, McClellon's June 29 complaint

related back to her May 27 complaint and was timely filed within

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the 90 day period.

Accordingly, the district court erred in dismissing

McClellon's complaint. The court should freely give a complainant,

especially a pro se complainant, leave to amend defective

allegations in a pleading. See Watkins v. Lujan, 922 F.2d 261, 264

(5th Cir.1991). Thus, the appropriate remedy when granting a

motion based on nonconforming or deficient pleadings is to grant

the complainant time within which to amend the complaint. If the

complainant fails to amend the complaint, the district court may

then strike the pleading or dismiss the case. See Fed.R.Civ.P.

12(e); and Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 134

(5th Cir.1959) (Hutchenson, J., dissenting).

We express no opinion on either the merits of the case, or on

the other basis upon which McClellon sought reversal or upon which

Lone Star Gas requested dismissal of the complaint.

CONCLUSION

For the foregoing reasons, the district court judgment is

REVERSED, and McClellon is granted ten days within which to amend

her complaint.

REVERSED WITH INSTRUCTIONS.

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