"Fifth Circuit Update -- Contractor’s Amended Claim Relates Back To Failed 'Employee' Pleading"
February 1, 2005by Cameron Pope
In Johnson v. Crown Enterprises, Inc., ___ F.3d ___, 2005 WL 121876 (5th Cir. Jan. 21, 2005) a truck driver sued his trucking company under Title VII, which requires the plaintiff to be an employee. The parties later agreed that the plaintiff was an independent contractor, and he amended his complaint after the statute of limitations had run to add a claim for racial discrimination under 42 U.S.C. § 1981, which does not require employee status. Rule 15(c) provides that in certain circumstances, including when the claim or defense arises out of the same factual situation, amendments to pleadings arise relate back to the date of the original pleading. The district court held that the § 1981 claim did not relate back to the Title VII because they were “two separate and distinct claims that have different elements of proof and different procedural requirements regarding exhaustion of remedies and time limitations.” The Fifth Circuit reversed, holding that the plaintiff’s status was irrelevant because the claims were based on identical allegations of discrimination.
Rule 9(b): You Are Your Vice President’s Keeper
In Barrie v. Intervoice-Brite, Inc., ___ F.3d. ___, 2005 WL 57928, at *10 (5th Cir. Jan. 12, 2004) , Plaintiffs brought a securities class action against a company that develops and sells interactive voice software and its chief officers after they reported a loss and lower-than-expected revenues and earnings per share. The Fifth Circuit reversed the district court’s dismissal and remanded in part, recognizing that high ranking company officials can be liable for failing to correct another official’s falsehoods during public meetings. The court held that under Rule 9(b), “where it is pled with specificity that one defendant knowingly uttered a false statement and the other defendant knowingly failed to correct it, even if it is not alleged which defendant spoke and which defendant failed to speak, the fraud is sufficiently pleaded as to each defendant.”
