Barbara HILDEBRAND & Husband, Jack Robert Hildebrand, Plaintiffs-Appellants, v. HONEYWELL, INC., Defendant-Appellee, 622 F.2d 179 (5th Cir. 1980). · Go Syfert
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Barbara HILDEBRAND & Husband, Jack Robert Hildebrand, Plaintiffs-Appellants, v. HONEYWELL, INC., Defendant-Appellee, 622 F.2d 179 (5th Cir. 1980). Cases Citing This Book View Copy Cite
“permission should be denied only if it appears to a certainty that plaintiffs cannot state a claim showing they are entitled to relief.”
106 citation events (50 in the last 25 years) across 29 distinct courts.
Strongest positive: Rivera v. ManpowerGroup US, Inc. (txwd, 2020-10-06)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) Rivera v. ManpowerGroup US, Inc.
W.D. Tex. · 2020 · signal: see also · quote attribution · 1 verbatim quote · confidence high
permission should be denied only if it appears to a certainty that plaintiffs cannot state a claim showing they are entitled to relief.
cited Cited as authority (rule) Young
M.D. Ala. · 2025 · confidence medium
Bank, 232 F. App’x 922, 922-23 (11th Cir 2007) (citing Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980)).
discussed Cited as authority (rule) Pugh v. Coffee County Jail (MAG+)
M.D. Ala. · 2025 · confidence medium
Bank, 232 F. App’x 922 , 922– 23 (11th Cir 2007) (citing Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980)); see also Equity Lifestyle Props., Inc. v. Fla. Mowing And Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (“The court may dismiss a claim if the plaintiff fails to prosecute it or comply with a court order.”).
discussed Cited as authority (rule) Willis v. US Bank Trust National Association
N.D. Tex. · 2025 · confidence medium
And “it is well settled that where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980) (collecting cases); cf. Johnson v. City of Shelby, Miss., 574 U.S. 10 , 12 (2014) (per curiam) (“Having informed [a defendant] of the factual basis for their complaint, [a plaintiff is] required to do no more to stave off threshold dismissal for want of an adequate statement of their claim,”…
discussed Cited as authority (rule) Johnson v. Wag Acquisition Group LLC
N.D. Tex. · 2025 · confidence medium
And “it is well settled that, where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980) (cleaned up; collecting cases); cf. Johnson v. City of Shelby, Miss., 574 U.S. 10 , 12 (2014) (per curiam) (“Having informed [a defendant] of the factual basis for their complaint, [a plaintiff is] required to do no more to stave off threshold dismissal for want of an adequate statement of th…
cited Cited as authority (rule) TruTemp Refrigeration & Commercial Climate, LLC v. Mowbray
M.D. Ala. · 2024 · confidence medium
Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005) (citing Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980))1; FED.
discussed Cited as authority (rule) Makozy v. United Parcel Service
S.D. Fla. · 2024 · confidence medium
The legal standard to be applied under Rule 41(b) is whether there is a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980) (emphasis added).
discussed Cited as authority (rule) Waters v. United States
M.D. Fla. · 2023 · confidence medium
Pursuant to Rule 41(b), dismissal of an action is appropriate when there is a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Goforth, 766 F.2d at 1535 (emphasis added); see also Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993) (reversing dismissal under Rule 41(b) where the record did not support a finding of willful delay); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980).2 Rule 41(b) makes clear that a trial court has discretion to impose sanctions on a party who fails to adhere to court rules.
discussed Cited as authority (rule) Ray v. Bridgestone Retail Operations, LLC
M.D. Fla. · 2023 · confidence medium
Pursuant to Rule 41(b), dismissal of an action is appropriate when there is a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Goforth, 766 F.2d at 1535 (emphasis added); see also Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993) (reversing dismissal under Rule 41(b) where the record did not support a finding of willful delay); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980).8 Rule 41(b) makes clear that a trial court has discretion to impose sanctions on a party who fails to adhere to court rules.
discussed Cited as authority (rule) Lucero Chavez v. Carillo
W.D. Tex. · 2023 · confidence medium
Where a complaint is deficient in alleging proper jurisdiction, “the district court has a duty under Rule 8(a) . . . to read the complaint liberally and determine whether the facts set forth justify it in assuming jurisdiction on grounds other than those pleaded.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980) (emphasis added).
discussed Cited as authority (rule) Fuqua v. Davis (INMATE 2)
M.D. Ala. · 2022 · confidence medium
Before dismissing with prejudice, the court must find that “there is a ‘clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.’” Id. (quoting Jones, 709 F.2d at 1458 , & citing Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980)*).
discussed Cited as authority (rule) Savage v. J and J Transports of Alabama, Inc.
N.D. Ala. · 2021 · confidence medium
The legal standard to be applied under Rule 41(b) is whether there is a “clear record of delay or willful contempt and a finding that lesser sanction would not suffice.” Hildebrand v. Honeywell, Inc., 622 F. 2d 179, 181 (5th Cir. 1980).
cited Cited as authority (rule) B&S Equipment Co., Inc. v. North American Specialty Insurance Company
E.D. La. · 2021 · confidence medium
Ill. 1992)). 59 Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980). 60 See Mims v. Cent.
discussed Cited as authority (rule) Ebanks v. Trans Union, L.L.C.
M.D. Fla. · 2020 · confidence medium
Pursuant to Rule 41(b), dismissal of an action is appropriate when there is a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Goforth, 766 F.2d at 1535 (emphasis added); see also Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993) (reversing dismissal under Rule 41(b) where the record did not support a finding of willful delay); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980).8 Rule 41(b) makes clear that a trial court has discretion to impose sanctions on a party who fails to adhere to court rules.
discussed Cited as authority (rule) Eaton v. Department of Veterans Affairs
S.D. Ala. · 2020 · confidence medium
(Doc. 17 at 4-5). statute.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980); accord Arce v. Garcia, 434 F.3d 1254 , 1257 n.8 (11th Cir. 2006) (the Hildebrand rule is “[t]he law of this circuit”) (internal quotes omitted); DeRoy v. Carnival Corp., 963 F.3d 1302, 1313 (11th Cir. 2020) (district court had admiralty subject matter jurisdiction over a complaint that explicitly disclaimed admiralty jurisdiction, because the complaint “allege[d] sufficient facts demonstrating that the district court had” such jurisdiction); Continental Casualty Co. v. Canadian Universal Ins…
cited Cited as authority (rule) Lewis v. United States of America
M.D. La. · 2019 · confidence medium
Co., 834 F.2d 421, 424 (5th Cir. 1987)(citing Hildebrand v. Honeywell, 622 F.2d 179, 181 (5th Cir. 1980)).
discussed Cited as authority (rule) Professional Led Lighting, Ltd. v. AAdyn Technology, LLC
S.D. Fla. · 2015 · confidence medium
Critically for our purposes, “where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.” Lykins v. Pointer, Inc., 725 F.2d 645, 646 (11th Cir.1984) (quoting Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980)).
discussed Cited as authority (rule) Belle Co. v. United States Army Corps of Engineers
5th Cir. · 2014 · confidence medium
Co., 884 F.2d 421 , 424 (5th Cir.1987) (“[W]here a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.”) (quoting Hildebrand v. Honeywell, 622 F.2d 179, 181 (5th Cir.1980)).
discussed Cited as authority (rule) Texas Indigenous Council v. Simpkins
5th Cir. · 2013 · confidence medium
“Permission should be denied only if it appears to a certainty that plaintiffs cannot state a claim showing they are entitled to relief or defendant will be unduly prejudiced.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 182 (5th Cir.1980) (cita *422 tions omitted).
discussed Cited as authority (rule) T.W. v. Hanover County Public Schools
E.D. Va. · 2012 · confidence medium
Dismissal with prejudice is a severe sanction, but is appropriate where there is a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Id. at 1458 (internal quotation marks omitted) (quoting Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980)). ii.
discussed Cited as authority (rule) Lentz v. TRINCHARD
E.D. La. · 2010 · confidence medium
The Court further finds that plaintiffs original complaint contains sufficient allegations to state a basis for “related to” bankruptcy jurisdiction. “[Wjhere a complaint fails to cite the statute alleging jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) Robinson v. Wal-Mart Stores, Inc.
S.D. Miss. · 2008 · confidence medium
The Court, however, is mindful of the well-settled rule that in eases in which “a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.” Hildebrand v. Honeywell, Inc., 622 F.2d 179,181 (5th Cir.1980).
discussed Cited as authority (rule) Mendoza v. Murphy
5th Cir. · 2008 · confidence medium
In any event, it is “well settled that where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) William P. Collins, Jr. v. Lake Helen L.P.
11th Cir. · 2007 · confidence medium
Agencies Ltd., 432 F.3d at 1339 ; Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985) (reciting two-pronged test for dismissal); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983) (same); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980) (same).
discussed Cited as authority (rule) Aisha Goodison v. Washington Mutual Bank
11th Cir. · 2007 · confidence medium
Fed.R.Civ.P. 41(b); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980). 1 “The legal standard to be applied under Rule 41(b) is whether there is a ‘clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.’ Dismissal of a case with prejudice is considered a sanction of last resort, applicable only in extreme circumstances.” Goforth, 766 F.2d at 1535 (internal citation omitted).
discussed Cited as authority (rule) Mendoza v. United States
W.D. Tex. · 2007 · confidence medium
Nonetheless, “[i]f a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged satisfy jurisdictional requirements.” Id. (citing Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980)).
discussed Cited as authority (rule) National Parks Conservation Ass'n v. United States Army Corps of Engineers
S.D. Fla. · 2006 · confidence medium
“It is well settled that where a complaint fails to cite the statute conferring jurisdiction the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980) (internal citations omitted). 10 “Moreover, the district court has a duty under Rule 8(a) of the Federal Rules of Civil Procedure to read the complaint liberally and determine whether the facts set forth justify it in assuming jurisdiction on grounds other than those pleaded.” Id. *1342 See also Q…
cited Cited as authority (rule) Robert J. Heard v. Milton E. Buddy Nix, Jr.
11th Cir. · 2006 · confidence medium
Fed.R.Civ.P. 41(b); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) Betty K Agencies, Ltd. v. M/V Monada
11th Cir. · 2005 · confidence medium
For example, in Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980), 1 the former Fifth Circuit reviewed a dismissal upon motion, but stated that “a court may sua sponte dismiss a case with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure.” Accord World Thrust Films, Inc. v. Int’l Family Entm’t, Inc., 41 F.3d 1454, 1456 (11th Cir.1995) (reversing sua sponte dismissal for failure to comply with court rules, and citing Rule 41(b) as the source of the district court’s authority); Lopez v. Aransas County Indep.
discussed Cited as authority (rule) Magnuson v. Elect Data System
5th Cir. · 2001 · confidence medium
See, e.g., Veazey v. Young’s Yacht Sale and Service, 644 F.2d 475, 478 (5th Cir. 1981) (“We subscribe to the view that involvement of the litigant in the delay is a material factor in weighing remedies”); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980).
examined Cited as authority (rule) Heimann v. National Elevator Industry Pension Fund (4×) also: Cited "see"
5th Cir. · 1999 · confidence medium
However, demand of an improper remedy is not fatal to a party's pleading if the statement of the claim is otherwise sufficient to show entitlement to a different form of relief.") (discussing Hildebrand v. Honeywell Co., 622 F.2d 179, 181 (5th Cir. 1980)); Southpark Square Ltd. v. City of Jackson, 565 F.2d 338 , 341 n.2 (5th Cir. 1977); Thompson v. Allstate Ins.
discussed Cited as authority (rule) In Re Southeast Banking Corp. Securities & Loan Loss Reserves Litigation
S.D. Fla. · 1997 · confidence medium
“The legal standard to be applied under Rule 41(b) is whether there is a ‘clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.’” Id. (quoting Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980)).
discussed Cited as authority (rule) Tony L. Phipps v. Leon H. Blakeney
11th Cir. · 1993 · confidence medium
For example, dismissals pursuant to Fed.Rule Civ.Pro. 41(b) for failure to prosecute have frequently not been affirmed in cases where a plaintiff was represented by counsel and the district court did not find (explicitly or implicitly) that "lesser sanctions will not suffice." See, e.g., Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985); Cohen v. Carnival Cruise Lines, Inc., 782 F.2d 923 (11th Cir.1986); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) Sarit v. Drug Enforcement Administration
D.R.I. · 1991 · confidence medium
Moreover, the district court has a duty under Rule 8(a) of the Federal Rules of Civil Procedure to read the complaint liberally and determine whether the facts set forth justify it in assuming jurisdiction on grounds other than those in the pleading.” Id. (citing Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980)).
cited Cited as authority (rule) Carter v. South Central Bell
5th Cir. · 1990 · confidence medium
They cite two cases for this proposition: Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980) and Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir.1978).
cited Cited as authority (rule) ca5 1990
5th Cir. · 1990 · confidence medium
They cite two cases for this proposition: Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980) and Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir.1978).
discussed Cited as authority (rule) Kleinerman v. Morse
Mass. App. Ct. · 1989 · confidence medium
See Jones v. Freeman, 400 F.2d 383, 387 (8th Cir. 1968); Massachusetts v. United States Veterans Admn., 541 F.2d 119, 122 (1st Cir. 1976); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980); Simon v. United States, 644 F.2d 490, 498 (5th Cir. 1981).
discussed Cited as authority (rule) Hugh D. Mingo v. Sugar Cane Growers Co-Op Of Florida
unknown court · 1989 · confidence medium
The sanctions imposed can range from a simple reprimand to an order dismissing the action with or without prejudice. 3 Our cases announce the rule, however, that dismissal is warranted only upon a "clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985) (emphasis supplied); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980). 1 Although we occasionally have found implicit in an order the conclusion that "lesser sanctions would not suf…
discussed Cited as authority (rule) Mingo v. Sugar Cane Growers Co-op of Florida
unknown court · 1989 · confidence medium
Our cases announce the rule, however, that dismissal is warranted only upon a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985) (emphasis supplied); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980). 1 Although we occasionally have found implicit in an order the conclusion that “lesser sanctions would not suffice” (see Goforth, 766 F.2d at 1535 ), we have never suggested that the district court need not make that find…
cited Cited as authority (rule) Margaret S. DOSS, Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee
5th Cir. · 1987 · confidence medium
This court upheld as sufficient to withstand a motion to dismiss a complaint deficient in the same manner as Doss’ in Hildebrand v. Honeywell, 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) Telectron, Inc. v. Overhead Door Corp.
S.D. Fla. · 1987 · confidence medium
“A party should not be punished for his attorney’s mistake absent a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Ford v. Fogarty Van Lines, Inc., 780 F.2d 1582, 1583 (11th Cir.1986) (citing Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980)).
cited Cited as authority (rule) Robert Margin v. Sea-Land Services, Inc.
5th Cir. · 1987 · confidence medium
Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) Dow Chemical Co. v. United States Environmental Protection Agency
M.D. La. · 1986 · confidence medium
Therefore, the complaint must establish that subject matter jurisdiction exists. 4 As a general rule, however, a complaint which fails to specify the particular constitutional provision, federal statute or treaty under which an action arises is not considered fatally defective if the facts alleged in the complaint demonstrate that a federal question is involved. 5 In Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980), the Fifth Circuit summarized the rules to be applied as follows: Regarding the issue of the complaint’s deficiency in alleging proper jurisdiction, it is well esta…
cited Cited as authority (rule) Larry Ford v. Fogarty Van Lines, Inc., Gerald M. Branch
11th Cir. · 1986 · confidence medium
Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) Navarro v. Cohan
S.D. Fla. · 1985 · confidence medium
Nonetheless, the standard used under Rule 41(b) is whether there is a “clear record of delay or wilful contempt and a finding that lesser sanctions would not suffice.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) Goforth v. Owens
11th Cir. · 1985 · confidence medium
The legal standard to be applied under Rule 41(b) is whether there is a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Id.; Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) Goforth v. Owens
11th Cir. · 1985 · confidence medium
The legal standard to be applied under Rule 41(b) is whether there is a "clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Id.; Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980).
discussed Cited as authority (rule) Foster Medical Corporation Employees' Pension Plan v. Healthco, Inc. And the Amended and Restated Healthco Employees' Pension Plan
1st Cir. · 1985 · confidence medium
Since pleadings are to be construed liberally, Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980), “precision of pleading no longer can be an absolute determinant of either liability or remedy.” DeCosta v. Columbia Broadcasting Sys., 520 F.2d 499, 510 (1st Cir.1975), cert. denied, 423 U.S. 1073 , 96 S.Ct. 856 , 47 L.Ed.2d 83 (1976).
discussed Cited as authority (rule) Lykins v. Pointer Incorporated
11th Cir. · 1984 · confidence medium
The law of this circuit, however, is that "where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute." Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980); see also Southpark Square Ltd. v. City of Jackson, 565 F.2d 338 , 341 n. 2 (5th Cir.1977), cert. denied, 436 U.S. 946 , 98 S.Ct. 2849 , 56 L.Ed.2d 787 (1978). 3 In 28 U.S.C.
discussed Cited as authority (rule) Lykins v. Pointer Inc.
11th Cir. · 1984 · confidence medium
The law of this circuit, however, is that “where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.” Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980); see also Southpark Square Ltd. v. City of Jackson, 565 F.2d 338 , 341 n. 2 (5th Cir.1977), cert. denied, 436 U.S. 946 , 98 S.Ct. 2849 , 56 L.Ed.2d 787 (1978).
28 Fair empl.prac.cas. 397, 23 Empl. Prac. Dec. P 31,128 Barbara Hildebrand and Husband, Jack Robert Hildebrand
v.
Honeywell, Inc.
79-3525.
Court of Appeals for the Fifth Circuit.
Jul 25, 1980.
622 F.2d 179
Kronzer, Abraham & Watkins, Rockne W. Onstad, Houston, Tex., for plaintiffs-appellants., Carl C. Meier, Minneapolis, Minn., for defendant-appellee.
Ainsworth, Fay, Randall.
Cited by 89 opinions  |  Published
AINSWORTH, Circuit Judge:

Plaintiffs Barbara Hildebrand and her husband Jack Robert Hildebrand brought suit on February 15, 1977 against Honeywell, Inc., Mrs. Hildebrand’s former employer, seeking damages for her wrongful termination on the basis of her age and sex. In their complaint they alleged diversity jurisdiction but failed to allege specifically that there was jurisdiction under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626. Though the complaint did not so state, attached to it was a copy of plaintiff’s right to sue letter from the Equal Employment Opportunity Commission notifying Mrs. Hildebrand of her right to institute suit against Honeywell for the alleged discrimination. Honeywell filed its answer on March 8, 1977, asserting as one of its defenses that the action should be dismissed for failure to state a claim upon which relief could be granted. The case lay dormant until April 27, 1979 when the district court entered an order notifying the parties that the matter had been set for docket call and trial on June 11, 1979 and that no motions of any kind other than motions for continuance would be entertained unless filed at least 20 days before the date set for docket call.

On May 22, 1979 Honeywell filed a motion to dismiss the complaint or in the alternative for judgment on the pleadings on grounds that the district court lacked jurisdiction over the subject matter and that the allegations contained in the complaint failed to state a claim upon which relief could be granted. [1] On May 31 defendant Honeywell moved for a continuance on the ground that one of its essential witnesses would be out of the country on the date set for trial. This motion was denied. Then on June 6 plaintiffs Hildebrands filed a motion for leave of court to amend their complaint to allege specifically jurisdiction under the Civil Rights Act, 42 U.S.C. § 2000e et seq., and to include a statement in their complaint that attached as an exhibit was an EEOC right to sue letter. At the same time plaintiffs also filed a motion for continuance alleging that they had been in Europe for the two years during the pend-ency of the suit on a business assignment for Mr. Hildebrand’s employer and would continue to reside in England for another six months until the job assignment had been completed.

The district court entered an order on June 14,1979 denying plaintiffs’ motion for leave to file an amended complaint because it was filed “on the very eve of trial and in contravention of this Court’s order that all motions be filed no later than 20 days prior to docket call.” The order also granted defendant Honeywell’s motion to dismiss plaintiffs’ complaint without assigning reasons therefor. On June 18, 1979 final judgment was entered dismissing the suit.

Plaintiffs Hildebrands then filed a motion to amend the court’s order of dismissal, which motion was denied by the district court. In its denial order, the district court noted that although its ruling refusing plaintiffs leave to amend their complaint was “a drastic action,” the plaintiffs’ complaint was deficient “[b]y the admission of[*181] Plaintiffs’ own attorney” and they had failed to prosecute their lawsuit until filing their motion to amend, which motion was not timely and was in contravention of the court’s order requiring all motions to be filed 20 days before docket call.

Plaintiffs appealed on the ground that the district court abused its discretion in dismissing their complaint without allowing them leave to amend. We find that the order and judgment of dismissal were erroneously entered and therefore reverse.

While the district court’s order of June 14 dismissing plaintiffs’ complaint fails to state the court’s reasons for dismissal, its subsequent order denying plaintiffs’ motion to amend the order of dismissal indicates that the basis of dismissal was the Hildebrands’ failure to allege particularly the statutory basis of the court’s jurisdiction and their failure to prosecute the action timely. On either ground the court’s action was erroneous.

Regarding the issue of the complaint’s deficiency in alleging proper jurisdiction, it is well settled that where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute. Southpark Square Ltd. v. City of Jackson, 565 F.2d 338, 341 n.2 (5th Cir.); cert. denied, 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1977). See Schlesinger v. Councilman, 420 U.S. 738, 744 n.9, 95 S.Ct. 1300, 1306 n.9, 43 L.Ed.2d 591 (1975); Smith v. United States, 502 F.2d 512, 519-20 (5th Cir. 1974); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1206 at 77-80. Moreover, the district court has a duty under Rule 8(a) of the Federal Rules of Civil Procedure to read the complaint liberally and determine whether the facts set forth justify it in assuming jurisdiction on grounds other than those pleaded. Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir. 1978); New York State Waterways, Association, Inc. v. Diamond, 469 F.2d 419, 421 (2d Cir. 1972). Here, an examination of the entire complaint reveals a proper basis for assuming jurisdiction under Title VII and the Age Discrimination in Employment Act. Paragraph III of the complaint alleges that Mrs. Hildebrand was unlawfully terminated because of her age and her sex. It states the underlying factual bases for this allegation. Further, Mrs. Hildebrand’s EEOC right to sue letter, though not referred to specifically in the complaint, was attached as an exhibit thereto. Under the circumstances, therefore, the district court erred in dismissing plaintiffs’ complaint for a deficiency in pleading without allowing them leave to amend.

If the basis of the district court’s dismissal of plaintiffs’ complaint was their failure to prosecute, we find that the court’s ruling was an abuse of discretion. While a court may sua sponte dismiss a case with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure, Link v. Wabash Railroad, 376 U.S. 626, 629-32, 82 S.Ct. 1386, 1388-90, 8 L.Ed.2d 734 (1962), dismissal with prejudice is an extreme sanction which should be used only “where ‘a clear record of delay or contumacious conduct by the plaintiff’ exists.” Anthony v. Marion County General Hospital, 617 F.2d 1164, 1167 (5th Cir. 1980), quoting Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1978). See Lopez v. Aransas Independent School District, 570 F.2d 541, 544 (5th Cir. 1978). Furthermore, a party should not be punished for his attorney’s mistake absent a clear record of delay or wilful contempt and a finding that lesser sanctions would not suffice. Blois v. Friday, 612 F.2d 938, 940 (5th Cir. 1980); Hassenflu v. Pyke, 491 F.2d 1094, 1095 (5th Cir. 1974).

Although plaintiffs failed to take any action to prosecute their suit for a period of over two years, their motion for a continuance indicates that they were overseas during the entire period the case was pending. Thus they appear to have been penalized by the lack of diligence of their attorney, who failed to file a second pleading until June 6, 1979, at which time he filed a motion for leave to amend the complaint. Plaintiffs’ motion was prompted by defendant Honeywell’s motion to dismiss, which was not filed until May 22, 1979, the last day upon which the court stated it would entertain motions other than motions[*182] to continue. Prior to Honeywell’s motion to dismiss, which the court granted, no pleading other than a motion to substitute counsel had been filed by defendant since its answer to plaintiffs’ complaint on March 8, 1977. Under the circumstances, no clear record of wilful contempt or contumacious conduct by the Hildebrands has been demonstrated.

Moreover, Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a complaint shall be freely given when justice so requires. Permission should be denied only if it appears to a certainty that plaintiffs cannot state a claim showing they are entitled to relief or defendant will be unduly prejudiced. Griggs v. Hinds Junior College, 563 F.2d 179, 180 (5th Cir. 1977); Rohler, supra, 576 F.2d at 1266. Since the facts alleged in plaintiffs’ original complaint were sufficient to notify defendant Honeywell of the theory of their claim and the grounds which support it, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), leave to amend to properly allege a claim under Title VII and the Age Discrimination in Employment Act should have been granted.

REVERSED AND REMANDED.

1

. Honeywell’s pleading also alleged that certain matter be stricken from plaintiffs’ complaint on the ground that it was immaterial and impertinent.