Judges: PerCuriam
Filed: Nov. 15, 2013
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted November 14, 2013* Decided November 15, 2013 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 13-2225 EDDIE L. RAINEY, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 12 C 9561 LIPARI FOODS, I
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted November 14, 2013* Decided November 15, 2013 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 13-2225 EDDIE L. RAINEY, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 12 C 9561 LIPARI FOODS, IN..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 14, 2013*
Decided November 15, 2013
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐2225
EDDIE L. RAINEY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 C 9561
LIPARI FOODS, INC. and THOM LIPARI,
Defendants‐Appellees. Samuel Der‐Yeghiayan,
Judge.
O R D E R
Eddie Rainey appeals the dismissal of his complaint alleging that Lipari Foods
discriminated against him based on race (black) and age (then 56) when it did not hire
him as a truck driver. He argues specifically that the district court abused its discretion
by denying him leave—after the dismissal of the complaint—to amend to add more
specific allegations that, he insists, would state a plausible claim for relief. We agree.
*
The defendants were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. Thus, the appeal
is submitted on the appellant’s brief and the record. See FED. R. APP. P. 34(a)(2).
No. 13‐2225 Page 2
According to his complaint, Rainey applied for the job at an open house, passed a
road test, complied with the company’s requests for a copy of his driver’s license, social
security card, and medical card, but ultimately was passed over. The district court
dismissed the complaint at screening, 28 U.S.C. § 1915(e)(2)(B)(ii), concluding that
Rainey’s allegations of discrimination were “pure speculation” and did not state a
plausible federal claim. No separate judgment was filed. See FED. R. CIV. P. 58(a).
One month later Rainey sought reconsideration, asserting that he could state a
plausible employment‐discrimination claim by amending his complaint to allege that
Lipari Foods continued to interview non‐black and younger applicants for the truck‐
driver position after it had turned him down. The court denied the request for
reconsideration, characterizing Rainey’s submission as “conclusory legal jargon.”
Rainey moved for leave to amend his complaint twenty‐one days later, stating
that he had recently received certain requested materials from the Equal Employment
Opportunity Commission and needed more time to amend his complaint. Rainey did
not include any proposed amendments to his complaint. The court denied the motion as
untimely (filed as it was more than two months after the court’s dismissal order) and
added that the proposed amendments still did not plausibly suggest a federal claim.
Two months later Rainey again sought leave to amend his complaint, this time to
add facts from his EEOC file that, he believed, showed that younger, non‐black, less‐
qualified applicants were hired over him. The court construed the motion as one for
reconsideration and denied it.
More than a month later, Rainey one last time sought leave to amend his
complaint. He asserted that the court had overlooked his proposed amendments
alleging that the younger, Latino men who were hired for truck‐driver positions had
not properly completed the employment application. The court denied the request as
untimely and meritless, and warned Rainey that any further filings on decided matters
could result in sanctions.
On appeal Rainey maintains that the district court abused its discretion by
denying him leave to amend his complaint. He argues that the court was required to
allow him to amend his complaint once as a matter of course under Federal Rule of
Civil Procedure 15(a)(1)(B); that he sought to amend the complaint as soon as he was
able to obtain the EEOC file he had requested; and that his proposed amendments
No. 13‐2225 Page 3
alleged that the younger, Latino men hired in his place had not complied with the
formal application process and that one even had a prior traffic violation.
As an initial matter, we note that Rainey’s various post‐dismissal motions could
not have been untimely since judgment was never entered. See FED. R. CIV. P. 59(e) (“A
motion to alter or amend a judgment must be filed no later than 28 days after the entry
of the judgment.”); Borrero v. City of Chicago, 456 F.3d 698, 699, 701 (7th Cir. 2006). Rule
58(a) generally requires that a judgment be set out in a separate document, and Rule
58(b) requires the clerk to “promptly prepare, sign, and enter the judgment” when the
judge denies a plaintiff all relief as he did here. See FED. R. CIV. P. 58(a)–(b); Brown v.
Fifth Third Bank, 730 F.3d 698, 699 (7th Cir. 2013). Because no separate judgment was
entered, the judgment is deemed to have been entered 150 days after the court’s final
order. See FED. R. CIV. P. 58(c)(2)(B); Brown, 730 F.3d at 699, 701. Here the final order was
entered in the civil docket on December 14, 2012, see FED. R. CIV. P. 4(a)(7)(A)(ii), thus
making May 13, 2013 his judgment date. Since all of Rainey’s post‐dismissal motions
were filed before that date, they were not untimely.
Furthermore, we agree with Rainey that the district court abused its discretion by
denying him the opportunity to amend his complaint. Under Rule 15(a), plaintiffs
generally may amend their complaints before an answer has been filed once as a matter
of right, even after a court grants a motion to dismiss. FED. R. CIV. P. 15(a)(1)(B); Luevano
v. Wal‐Mart Stores, Inc., 722 F.3d 1014, 1022–23, 1025 (7th Cir. 2013); Alioto v. Town of
Lisbon, 651 F.3d 715, 721 (7th Cir. 2011); Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th
Cir. 2010).
This is not a case in which amending would necessarily be futile. See Foman v.
Davis, 371 U.S. 178, 182 (1962); Bausch, 630 F.3d at 562. The district court repeatedly
stated that Rianey’s allegations—including his proposed amendments—failed to
plausibly suggest any unlawful discrimination. See Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002); Luevano, 722 F.3d at 1028. But as we understand his claim, he says he was
passed over for the position in favor of less‐qualified, younger Latino drivers because of
age and race discrimination. Such a claim is adequate. See Swierkiewicz, 534 U.S. at 511–12;
Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010); Bennett v. Schmidt, 153 F.3d 516,
518 (7th Cir. 1998).
VACATED and REMANDED.