Appellant's Petition for Rehearing and Suggestion for Hearing In Banc with Cover Letter

    UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT

89-3613

HAROLD EASLEY, 
Plaintiff-Appellant, 

vs.
GENERAL MOTORS CORPORATION, 

Defendant-Appellee.

On Appeal from the United States District Court 
for the Southern District of Indiana, Indianapolis Division

BRIEF OF PLAINTIFF-APPELLANT IN SUPPORT OF APPELLATE JURISDICTION

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS 
CORNELIA T.L. PILLARD 
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900
Attorneys for Plaintiff- 

Appellant



INTRODUCTION
Plaintiff-Appellant Harold Easley files this Memorandum in 

Support of Appellate Jurisdiction in response to the Court's 
Order dated December 13, 1989. The Order states that "Plaintiff 
shall file, on or before December 29, 1989, a brief memorandum 
stating why this appeal should not be dismissed for lack of 
jurisdiction.1,1

This Court has jurisdiction to hear this appeal because the 
district judge filed an Entry of Dismissal in this case on 
November 2, 1989. That order dismissed plaintiff's sole federal 
claim as a matter of law and left no indication that any further 
amendment of the Amended Claim could cure what the district court 
viewed as the legal deficiency of that claim. This Court's Order 
refers to footnote 1 to the Entry of Dismissal as granting 
plaintiff leave to amend his complaint, and as therefore calling 
into question the finality under 28 U.S.C. § 1291 of the district 
court judgment. The footnote states that "Plaintiff's motion to 
amend is hereby granted;" the note refers, however, to a then- 
pending motion to file the Amended Claim. See slip op. at 2 
(referring to plaintiff's "tendered amended complaint, which the 
court has now allowed him to file"). It was that very Amended 
Claim that the district court then simultaneously dismissed in 
the Entry of Dismissal here appealed from. The district court's

Plaintiff moved for an extension to January 5, 1990 of 
time within which to file the brief on jurisdiction. Counsel was 
informed orally by the Clerk via telephone that the motion was granted.

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footnote 1 does not confer any right to amend the complaint 
further after November 2, 1989. Plaintiff timely.appealed from 
the dismissal of his case by the district court to preserve his 
appeal rights in view of the apparent finality of that 
dismissal.2

STATEMENT OF THE CASE
This case challenges General Motors' discriminatory hiring, 

employment and discharge of plaintiff Harold Easley, an 
experienced and qualified Black machine repairman. The case was 
originally filed under 42 U.S.C. § 1981 and Indiana law.
Plaintiff contemplates bringing a claim under Title VII, 42 
U.S.C. §§ 2000e et seq., when the pending investigation by the 
Equal Employment Opportunity Commission is complete.

Mr. Easley, proceeding pro se in the district court, filed 
the original Complaint on February 14, 1989. The Complaint 
contained three counts, including one claiming discrimination in 
violation of Section 1981, a second claiming negligence under 
Indiana law, and a third claiming wrongful discharge in violation 
of Indiana law.

On May 17, 1989, General Motors answered the Complaint, and

If this Court interprets the Entry of Dismissal by the 
district court as granting plaintiff leave to file a second 
amended section 1981 claim relating back to the original 
complaint, plaintiff Easley moves for voluntary dismissal of the 
appeal under Fed. R. App. P. 42(b), and for remand to the 
district court for amendment of the pleadings, without prejudice 
to plaintiff's right to appeal any later, final order.

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filed a motion to dismiss the two state-law claims on grounds 
that the negligence claim was preempted by state and federal 
civil rights law, and that wrongful discharge is not actionable 
under Indiana law. Mr. Easley did not file a brief in opposition 
to the motion to dismiss, but moved on May 30, 1989 to stay the 
action pending completion of the EEOC investigation.

With plaintiff's motion to stay and defendant's motion to 
dismiss still pending, General Motors on July 7, 1989 filed a 
motion for judgment on the pleadings under the recent Supreme 
Court decision in Patterson v. McLean Credit Union. 109 S. Ct.

32363 (1989). Mr. Easley did not file a brief in opposition to 
defendant's second motion, but moved on July 21, 1989 to amend 
his Section 1981 claim to address the new standards set forth in 
Patterson. He also filed a motion requesting a ruling on his 
motion to stay*the proceedings. The court requested that General 
Motors file a reply brief in view of the amended complaint. 
Defendant filed its reply brief, and an opposition to plaintiff's 
motion to stay, on October 6, 1989.

On November 2, 1989, the district court denied plaintiff's 
motion to stay the action, granted plaintiff's motion to file the 
Amended Claim, and dismissed the case "without prejudice." Judge 
Barker held that "Section 1981 is simply not available to a

Patterson held that racial harassment carried out 
during the course of and employment relationship but not alleged 
to have been present when the contract was formed did not violate 
plaintiff's right under § 1981 "to make . . . contracts" free 
from racial discrimination.

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plaintiff alleging discrimination unless there was at the outset 
a refusal by a defendant to enter into an employment contract. 
Such a refusal is not the wrong alleged by plaintiff in this 
complaint." Slip op. at 5. She concluded that "[b]ecause the 
decision in Patterson precludes the bringing of [plaintiff's] 
claim under section 1981, plaintiff's remedies, if any, lie under 
state and federal labor laws or Title VII."4 The docket reflects 
that the case was closed as of November 2, 1989.

Mr. Easley noticed this appeal on November 29, 1989. He 
contacted current counsel and secured representation solely for 
the purposes of this appeal.

ARGUMENT
I. THE DISTRICT COURT DID NOT AUTHORIZE

PLAINTIFF TO AMEND HIS COMPLAINT
The dismissal of plaintiff's complaint "without prejudice" 

did not grant plaintiff leave to amend the complaint, but was a 
final disposition of plaintiff's case in the district court.
This Court, in its December 13, 1989 Order, refers to footnote 1 
of Judge Barker's Entry of Dismissal in support of a preliminary 
conclusion that this appeal is premature. As mentioned above 
at 1, however, that footnote refers to an earlier, then-pending 
motion to amend the complaint.

The effect of footnote 1 is clear when viewed in the context
4 Judge Barker viewed the state law claims as having been 

abandoned by plaintiff because they were not realleged in the Amended Claim.

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of the district court's several, simultaneous rulings. When the 
district court disposed of this case on. November 2, 1989, it 
ruled on all four of the motions then before it. First, by 
notation on the face of a photocopy of the motion itself, the 
judge denied plaintiff's May 30, 1989 motion to stay the 
proceedings. Then, in footnote 1 to the Entry of Dismissal, the 
Court granted plaintiff's motion dated July 21, 1989, which 
sought to amend the complaint and attached the Amended Claim.

The balance of the Entry of Dismissal ruled on defendant's 
motion to dismiss dated May 17, 1989, and its motion for judgment 
on the pleadings dated July 7, 1989. The court ruled on these 
motions by holding that "Defendant's previously filed 'motions to 
dismiss' are moot in light of in light of the plaintiff's motion 
to amend and his tendered amendment, which the court has now 
allowed him to file." Slip op., at 2. The court stated that a 
motion for judgment on the pleadings was inappropriate because 
the complaint had been answered, but nonetheless held that the 
motion was "transformed into a motion to dismiss" because the 
"issues raised" are issues that "still pertain" to the Amended 
Claim. Slip op. at 2-3. The court then proceeded to review the 
Amended Claim —  the filing of which it had just authorized —  
and dismissed it as untenable after Patterson.

The district court's specification that the dismissal of the 
complaint was "without prejudice" appears not to invite plaintiff 
to amend his section 1981 claim further, but merely underscores 
that any state-law and Title VII claims are not prejudiced by the

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dismissal of the Section 1981 claim. The text of the Entry of 
Dismissal supports this view. In the sentence immediately 
preceding the holding of "dismissal without prejudice," the 
district court concluded that "plaintiff's remedies, if any, lie 
under state and federal labor laws or Title VII," and not under 
Section 1981. In view of both the district judge's failure to 
identify even a potential basis on which plaintiff might recover 
under section 1981, and the lack of any instructions or time- 
frame for further pleading to bolster the section 1981 claim, the 
dismissal without prejudice does not imply leave to amend.5

II. THE ENTRY OF DISMISSAL IS A FINAL
ORDER BECAUSE IT TERMINATED 
LITIGATION OF THIS CASE IN DISTRICT 
COURT

The Court of Appeals has jurisdiction because the Entry of 
Dismissal by the district court "clearly dismisses the entire 
action with no reasonable prospect for the complaint to be saved 
by amendment." Akins v. Board of Governors of State Colleges and 
Universities, 840 F.2d 1371, 1375 n. 2 (7th Cir. 1988). The pro 
se pleadings could perhaps have benefitted from redrafting. As

The fact that the court granted the motion to dismiss 
and denied the motion for stay at the same time provides a 
further indication that the lack of prejudice relates to the 
potential Title VII claim and not the Section 1981 claim. In 
opposing plaintiff's motion to stay the proceedings pending the 
completion of the EEOC investigation, General Motors suggested 
that a dismissal of the action could be without prejudice, so as 
not to foreclose plaintiff from bringing a Title VII claim. See 
Defendant's Response to Plaintiff's Motion To Stay, at 2. It may 
have been in response to this suggestion the judge elected to 
grant only a dismissal without prejudice.

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explained above, however, the court did not permit Mr. Easley to 
try to salvage his section 1981 claim by amending it further. 
Moreover, an amended complaint, if authorized, would be dismissed 
under the district court's erroneous interpretation of Patterson. 
In this case, it is the district court's decision, not the 
pleadings, that bears changing.

This case is easily distinguished from Hatch v. Lane. 854 
F.2d 981 (7th Cir. 1988), to which this Court referred in the 
Order requesting that this memorandum be filed. In that case, 
the district court explicitly invited the plaintiff to file an 
amended complaint because plaintiff had named the wrong 
defendant. Id. at 981-82. The district court granted plaintiff 
thirty days to amend, and when the plaintiff instead filed an 
immediate appeal, this Court dismissed for lack of jurisdiction. 
Id. at 98 2. Unlike the court in Hatch, however,* Judge Barker did 
not give Mr. Easley leave to amend his complaint again.
Moreover, in contrast to the appeal against the wrong defendant 
in Hatch, which clearly would have been a misuse of appellate 
jurisdiction, plaintiff in this case appeals from the district 
court's erroneous interpretation of important principles of 
federal civil rights law.

The district court's Entry of Dismissal did not explicitly 
state what it dismissed —  the complaint or the lawsuit. Instead 
the judge merely stated that the failure of the complaint to 
state a claim "warrants DISMISSAL WITHOUT PREJUDICE." In 
Benjamin v. United States. 833 F.2d 669, 671 (7th Cir. 1987),

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this court held that a district court's order was non-final and 
was not a basis for appellate jurisdiction where "the district 
court simply dismissed the complaint, not the action in its 
entirety." Even if this court interprets the court's order as 
directed at the complaint rather than the entire action, however, 
the Beniamin rule does not apply.

This court has repeatedly held that dismissal of a complaint 
alone is appealable where it is clear that the litigation is over 
and the complaint will not be amended. In Coniston Coro, v. 
Village of Hoffman Estates. 844 F.2d 461, 463 (7th Cir. 1988), 
for example, this Court accepted the appeal from an order 
dismissing a complaint "in its present state" because "the 
complaint sets forth the plaintiffs' case in full . . . and the 
district court found that the complaint stated no claim under 
federal law." 844 F.2d at 463. Similarly, this Court had 
jurisdiction in Akins because the district court's holdings that 
the eleventh amendment and qualified immunity barred suit would 
not be affected by amendment, and because plaintiffs explicitly 
refused to sue defendants in their official capacity. 840 F.2d 
at 1375. See also, Ordower v. Feldman. 826 F.2d 1569, 1572 (7th 
Cir. 1987); Baltimore Orioles v. Major League Baseball Players. 
805 F .2d 663, 667 (7th Cir. 1986).

In this case, the district court read Patterson broadly to 
eliminate plaintiff's Section 1981 claim. The categorical 
decision remitted plaintiff to remedies under other law, not to 
the pleading of additional facts such as would make a claim a

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court viewed as marginal into a viable one.

CONCLUSION
For the reasons stated in the foregoing Brief of Plaintiff- 

Appellant in support of Appellate Jurisdiction, this appeal 
should not be dismissed for lack of jurisdiction.

Respectfully submitted,

CORNELIA T.L. PILLARD 
JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS 
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Attorneys for Plaintiff- ' 
Appellant

Dated: New York, New York
January 4, 1990

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CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief of

Plaintiff-Appellant in Support of Appellate Jurisdiction was
U i n ­

itialled at New York, first class, postage pre-paid, this -v day
of January, 1990, to the following counsel for defendant-/
appellee:

Wendell R. Tucker 
Gregory L. Padgett 
Betty E. Landis
300 North Meridian Street, #2700 
Indianapolis, Indiana 46204

Cornelia T.L. Pillard