PUBLISH 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 97-6097 

D. C. Docket No. 95-N-2260-S

JIMMIE L. PETERSON; 

ALONZO REESE,

Plaintiffs-Appellants,

versus

BMI Refractories,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Northern District of Alabama

 

(January 13, 1998)

Before HATCHETT, Chief Judge, FAY and FARRIS*, Senior Circuit

Judges. 

FAY, Senior Circuit Judge:

___________________________________________________________________

*Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth

Circuit, sitting by designation.
2

Former employees Jimmie L. Peterson and Alonzo Reese brought

this action in state court against employer B.M.I. Refractories,

Inc.,(“BMI”), alleging race discrimination in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e17, and 42 U.S.C. § 1981, and alleging state law claims of breach

of contract, assault, battery, and outrage. After the removal of

the action to the District Court for the Northern District of

Alabama, plaintiffs amended their complaint to delete the breach of

contract claim. BMI moved for summary judgment on all remaining

counts. The plaintiffs conceded that the Title VII claim was

untimely, but opposed the summary judgment on the remaining claims.

The district court granted summary judgment and held that

plaintiffs’ § 1981 claim and plaintiffs’ state law tort claims were

preempted by § 301 of the Labor Management Relations Act in that

the claims were governed by a compulsory grievance and arbitration

procedure of their collective bargaining agreement. We reverse

and hold that the collective bargaining agreement at issue neither

bars litigation of plaintiffs’ § 1981 claim nor preempts

plaintiffs’ state law claims of assault, battery, and outrage. 

I. Background

A. The Historical Facts

In this appeal by plaintiffs of BMI’s successful motion for

summary judgment, we view the evidence in the light most favorable

to the non-moving party. Counts v. American Gen. Life & Accident
1

Peterson states in his affidavit that he began working for

the defendant in 1990. In his deposition, Peterson states he was

hired by the defendant in 1991.

2

In his affidavit, Reese states that he worked for the

defendant from 1987 to 1993. However, his deposition testimony

indicates that Reese worked for the defendant for six to eight

weeks in 1987, and returned to work for the defendant in 1988 or

1989, and stayed there for “around five years.” 

3

Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997). Plaintiffs Jimmie L.

Peterson and Alonzo Reese are black males who were employed by BMI

at its Birmingham, Alabama facility. Peterson worked as a laborer

for BMI from 1990 or 19911 until his discharge on June 17, 1993.

Reese was employed by BMI from 1987, 1988, or 19892 until his

discharge on June 17, 1993. During their employment at BMI, both

Reese and Peterson were members of the Laborers International Union

of North America, AFL-CIO (the “Union”). The Union and BMI were

parties to a collective bargaining agreement (“CBA”), and this CBA

contained a grievance and arbitration procedure.

While employed by BMI, neither Reese nor Peterson ever

received any sort of oral or written reprimand from their employer

due to their job performance and neither individual was ever

disciplined due to poor job performance. At BMI, plaintiffs were

supervised by and reported to foreman Larry Chambliss. Chambliss,

in turn, reported to Larry Giangrosso, who in turn reported to

construction superintendent Bert Rolley.

In 1992, Reese was promoted to the position of labor foreman,

a position requiring Reese to supervise other laborers and work

alongside them. As a result of his promotion to foreman, Reese

received a higher wage. Reese held this position for over a year.
3

The record does not indicate the date the lower wage went

into effect.

4

In his affidavit, Reese asserts that Giangrosso asked Reese

about the E.E.O.C. charge and told him he “went about it the wrong

way”; and that Giangrosso also commented on several occasions that

he “knew what [Reese’s] problem is, you’ve been here too long.”

Reese and Peterson, in their affidavits, state that Giangrosso made

racial taunts, often commenting to Reese when Reese was a labor

foreman that “you think you white, don’t you” and referring

repeatedly to Reese and Peterson and other black employees as

“nigger”, “boy”, and “you people”. In his affidavit, Giangrosso

denies the use of such language.

4

A white individual, Wayne Cookley, was also a foreman. Without

notice or explanation, one day3

 Reese stopped receiving the wage of

a foreman and his pay was reduced to that of a laborer. Wayne

Cookley continued receiving a foreman’s wage. Reese filed charges

with the Equal Employment Opportunity Commission (“E.E.O.C.”) as a

result of this incident.

Reese alleges that as a result of his filing a charge with the

E.E.O.C., BMI took steps to retaliate against him. Reese was

required to work under the supervision of Wayne Cookley, formerly

Reese’s equal, and James Giangrosso. According to the affidavits

and deposition testimony of Reese and Peterson, Giangrosso was a

major source of racial hostility in their workplace.4

The racial hostility and discrimination at BMI was not limited

to verbal abuse. Black employees were not given the same

opportunities to advance as white employees were given, black

employees were not given as many working hours as white employees

were given, and black employees were forbidden from using the

company trucks off of the premises while white employees were
5

Larry Chambliss, a labor foreman at B.M.I., stated in his

affidavit that he was aware of the racially discriminatory

atmosphere in the workplace.

6

In his affidavit and in his deposition testimony, Peterson

indicates he did not know this man’s name. BMI disputes that this

man from Pittsburgh even existed.

7

Peterson asked the man to move his feet, which were in the

way. The man from Pittsburgh called Peterson a “nigger” and told

him that Peterson could not tell him what to do. Peterson told

the man not to call him nigger and the man replied “Oh you goddamn

nigger, you can’t tell me what to do. I’m an expert in this here.”

Again, Peterson asked the man to move his feet and the man got up

and left, saying “Goddamn you nigger boy.”

5

allowed to make use of such trucks.5

The racial hostility at BMI even reached the point of violence

and physical intimidation. Peterson and Reese describe an incident

where a black laborer, Willie Jordan, was kicked by Randy Mann, a

white brick mason, and plaintiffs testify that everyone in the

workplace knew of the attack and that BMI did nothing about it. On

another occasion, Mann grabbed Peterson in the presence of

Giangrosso and threatened to throw him off a fifty foot scaffold.

Giangrosso’s response, Peterson states in his affidavit, was to

laugh. 

The incidents of racial hostility at BMI came to a head on

June 16, 1993, when Peterson and Reese were working the night shift

from 7 p.m. to 7 a.m.. Peterson was working with a white man from

Pittsburgh6

 while trying to cut bricks. Peterson had seen the man

talking with Giangrosso earlier. The man from Pittsburgh and

Peterson exchanged words.7 After Reese and Peterson took their

lunch break, they returned to their work stations. Peterson and

Reese found that a pallet of gunnite bags had been overturned near
8

Peterson claims in his affidavit that he was kicked, causing

his knees to buckle and causing him to fall to the ground.

Giangrosso testified in his deposition that he merely tapped

Peterson on the behind to get his attention. Chambliss, who

witnessed the incident, describes the contact as a “kick” in his

affidavit. 

9

Giangrosso’s personal truck has a rebel flag on the front of

the vehicle where a license plate would go.

10Giangrosso pointedly denies threatening Peterson with a

pistol. He does admit keeping a nine millimeter pistol in his

truck.

6

where they had been working. As Peterson bent over to pick up the

bags, Peterson was kicked in the behind by Giangrosso.8

 Peterson

did not report the kick to Rolley, the construction superintendent,

because Rolley was not at work that day.

Later that same shift, Reese and Peterson were heading to

clock out when they were approached by Giangrosso. Giangrosso was

driving his truck9 and another worker, Eddie Humphreys, was a

passenger in the vehicle. Giangrosso instructed Peterson to get in

the cab of the truck with him and instructed several workers,

including Reese, to climb in the back of the truck. In his

affidavit and in his deposition, Peterson states that Giangrosso

pulled a nine millimeter pistol out of the glove box of the truck,

pointed it in the general direction of Peterson, and said “You see

this here, well I just want you to see it, that’s all.”10 When the

truck stopped and Peterson and Reese got out, Giangrosso instructed

them to return to the work site at 3:00 p.m. 

When Reese and Peterson returned to the site at 3:00 p.m.,

Chambliss gave them their final paychecks and said they were being

fired because Giangrosso told Rolley that the pair were no longer
7

needed, and that they were fired because of the incidents that had

occurred the night before. The next day, Reese and Peterson went

to the Union office to see about filing a grievance to get their

jobs back. Joe Black, Secretary/Treasurer of the local chapter of

the Union, told them the Union would not get involved in the

matter.

B. THE COLLECTIVE BARGAINING AGREEMENT

The National Maintenance Agreement is the CBA between BMI and

the Union. Reese and Peterson, as employees of BMI and as members

of the Union, are employees covered by the terms and conditions of

this CBA. Of particular applicability to the issues before this

court are the provisions of Article III, (“Non-discrimination”),

and Article VI, (“Grievances”), of the CBA.

Article III, the only provision of the CBA arguably addressing

federal statutory rights, states:

1. The Union and the Employer agree to abide by

all Executive Orders and subsequent amendments

thereto, regarding the Civil Rights Act of 1964,

pertaining to non-discrimination in employment, in

every respect.

Article VI of the CBA outlines the grievance and arbitration

procedure which governs the resolution of work-related complaints

by employees. Paragraph 1 of Article VI of the CBA provides the

deadlines for filing grievances, the deadlines for pursuing appeals

of grievances, and allows for settlement of grievances at any step

of the grievance procedure. Paragraph 1 also explains each step of
11Arbitration by the American Arbitration Association only

becomes available under the terms of the CBA if the National

Maintenance Policy Committee, Inc., (step 4), fails to reach a

decision on the grievance.

8

the multi-step grievance procedure, with the final step being

binding arbitration by the American Arbitration Association.11 Once

a grievance reaches arbitration, “the arbitrator shall only have

jurisdiction and authority to interpret apply [sic] or determine

compliance with the provisions of this Agreement.” 

C. The Procedural Facts

As this court noted in its recent decision Peterson v. BMI

Refractories, 124 F.3d 1386 (11th Cir. 1997), this case indeed has

a “tortured history.” Its procedural history is detailed at length

in that opinion; therefore, we add only what is necessary for the

resolution of this case. In light of the lengthy explanation of

the procedural history of this lawsuit in that opinion, we will

attempt to limit our explanation of the procedural history of this

suit to only the most necessary of facts. The original complaint

for this matter was filed in the Circuit Court of Jefferson County,

Alabama, on February 2, 1995. Plaintiffs Peterson and Reese

alleged race discrimination in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C.

§ 1981, and state law claims of breach of contract, assault,

battery, and outrage. The complaint was dismissed without

prejudice on June 9, 1995, for failure to serve the defendant, BMI.

The court clerk notified plaintiffs’ counsel on June 23, 1995 that

plaintiffs’ case had been dismissed and on June 28, 1995,
12The magistrate judge found the plaintiffs’ Title VII claims

were time-barred, and that the plaintiffs’ § 1981 claims were

preempted by the grievance and arbitration procedure of the CBA

that existed between the plaintiffs’ union and BMI. The magistrate

judge also found that BMI could not be held liable for the torts of

its supervisory employee because Giangrosso was not acting within

the line and scope of his authority and his actions were not in

furtherance of the business interests of BMI. On a separate motion

for summary judgment, the magistrate judge found the plaintiffs’

outrage claim was also preempted by the grievance and arbitration

procedure of the CBA.

9

plaintiffs filed a motion to reinstate the case. This motion was

granted by the state court on July 31, 1995. BMI was served on

August 3, 1995. BMI removed the action to the U.S. District Court

for the Northern District of Alabama on September 1, 1995. After

removal, plaintiffs dropped their breach of contract claim. BMI

moved for summary judgment on all counts. The magistrate judge

assigned to the case issued a report and recommendation that BMI’s

motion for summary judgment be granted on all counts.12 

The district court entered an order granting BMI’s motion for

summary judgment and dismissing the action in all respects “WITHOUT

PREJUDICE to the right of any party to reopen the action following

completion of the grievance and arbitration proceedings, should

there remain any issues unresolved by arbitration” (emphasis in

original). The district court accepted and adopted the

recommendations of the magistrate judge with one exception -- the

district court found that the plaintiffs’ claims of assault and

battery were also preempted by the grievance and arbitration

procedure of the CBA. The plaintiffs filed a timely notice of

appeal on January 30, 1997.
10

II. Standard of Review

We review the district court’s grant or denial of a motion for

summary judgment de novo, applying the same standards as the

district court. Harris v. Bd. of Educ.of Atlanta, 105 F.3d 591 ,

595 (11th Cir. 1997). Summary judgment is appropriate if the

pleadings, depositions and affidavits show there is no genuine

issue of material fact and that the moving party is entitled to

judgment as a matter of law. Counts, 111 F.3d at 108.

III. Discussion

BMI first contends that this court does not have jurisdiction

to hear this appeal. BMI argues that the district court order

dismissing plaintiffs’ claims without prejudice was not a final

order, since the district court left open the option of pursuing

the claims through arbitration. Second, BMI argues that even if

jurisdiction is found to exist, the district court acted

appropriately in finding that the plaintiffs’ § 1981 race

discrimination claim was preempted by the grievance and arbitration

procedure of the CBA. Third, BMI similarly contends that

plaintiffs’ state law claims of assault, battery and outrage depend

upon an interpretation of the CBA and are thus preempted by § 301

of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185.

Finally, BMI asserts numerous alternate grounds for upholding the

district court’s order.

Plaintiffs Peterson and Reese respond to BMI’s contentions as

follows. First, they argue the district court’s order was in all

respects a final order and as such was immediately appealable to
11

this court. Second, plaintiffs assert that this court’s July 21,

1997 decision in Brisentine v. Stone & Webster Eng’g Corp., 117

F.3d 519 (11th Cir. 1997), compels a reversal of the district

court’s dismissal of plaintiffs’ § 1981 race discrimination claim

for failure to pursue the grievance and arbitration procedure of

the CBA. Third, plaintiffs argue that plaintiffs state law claims

of assault, battery and outrage do not require an interpretation of

the CBA, and as such these claims are not preempted by the CBA.

Finally, plaintiffs dispute that BMI’s alternative grounds for

affirmance of the district court’s order compel an affirmance by

this court.

A. Jurisdiction

BMI contends that this court does not have jurisdiction to

hear this appeal because the district court has not entered a final

order in this case. Upon BMI’s motion for summary judgment, the

district court entered an order granting BMI’s motion for summary

judgment and dismissing the action in all respects “WITHOUT

PREJUDICE to the right of any party to reopen the action following

completion of the grievance and arbitration proceedings, should

there remain any issues unresolved by arbitration.” (emphasis in

original). BMI argues the language of the district court order

makes clear that this order is not a final order, but merely a

transfer order referring the case to arbitration. We disagree.

As plaintiffs have pointed out, in Kobleur v. Group

Hospitalization and Med. Serv., Inc., 954 F.2d 705, 708 (11th Cir.

1992), we unequivocally held that a “district court’s dismissal of
12

a case without prejudice for failure to exhaust administrative

remedies is a final order, giving an appellate court jurisdiction

under 28 U.S.C. § 1291.” As in Kobleur, the practical effect of

the district court’s order here is to deny the plaintiffs judicial

relief until they have exhausted their administrative remedies.

The district court’s order is even more “final” here and

plaintiffs’ argument is all the more compelling in that plaintiffs

would be denied access to the grievance and arbitration procedure

since the CBA requires that grievances be filed within ten days of

the occurrence. Therefore, the district court entered a final

order giving this court jurisdiction to hear the appeal under 28

U.S.C. § 1291.

B. § 301 Preemption of Plaintiffs’ § 1981 Claim

In Brisentine, decided earlier this year, this court

established a three part test to determine whether a mandatory

grievance and arbitration procedure in an employment contract bars

litigation of a federal statutory claim. Plaintiffs contend that

this test, articulated after the district court’s order dismissing

plaintiffs’ claims, requires a reversal of the district court’s

order dismissing the § 1981 claim. We agree.

42 U.S.C. § 1981 guarantees to all persons within the

jurisdiction of the United States “a panoply of individual rights

the primary one being the right to contract to earn a living.”

Vietnamese Fishermen’s Ass’n v. Knights of Ku Klux Klan, 518 F.Supp

993, 1008 (S.D. Tex. 1981). It is undisputed that to advance a 

§ 1981 claim is to advance a federal statutory claim. Under the
13We reject the defendant’s contention that § 1981 claims are

somehow different from other federal statutory claims asserting

individual rights that fall under the protective scope of

Brisentine. Given that Title VII claims are covered by the

Brisentine test, it would be incongruous for us to treat § 1981

claims differently since in the past we have held that the elements

of a disparate treatment claim of employment discrimination under

§ 1981 and Title VII are identical. See Lincoln v. Bd. of Regents,

697 F.2d 928, 935 n.6 (11th Cir. 1983).

13

law of this circuit, a mandatory arbitration clause does not bar

litigation of a federal statutory claim unless certain

requirements are met. The threshold requirement is that “the

employee must have agreed individually to the contract containing

the arbitration clause -- the union having agreed for the employee

during collective bargaining does not count.” Brisentine, 117 F.3d

at 526. Since all elements of the Brisentine test must be

satisfied in order for an arbitration clause to preempt a federal

statutory claim, we need not pursue our inquiry any further.13 The

record makes evident that the contract at issue containing the

arbitration clause was a CBA agreed upon by the Union but not by

the individual employees. For that reason, we must reverse the

district court’s dismissal of plaintiffs’ § 1981 claim.

C. § 301 Preemption and Plaintiffs’ State Law Claims

Plaintiffs also contend the district court erred in finding

that their state law claims of assault, battery, and outrage were

preempted by § 301(a) of the LMRA, which provides:

Suits for violation of contracts between an employer and

a labor organization representing employees in an

industry affecting commerce . . . may be brought in any

district court of the United States having jurisdiction

of the parties, without respect to the amount in

controversy or without regard to the citizenship of the

parties.
14For a more complete history regarding the development of the

§ 301 preemption doctrine, see Lightning v. Roadway Exp.,Inc., 60

F.3d 1551, 1556-1557 (11th Cir. 1995).

14

29 U.S.C. § 185(a).14 With regard to state tort claims, § 301

preemption requires this court to focus on whether the state tort

claim “confers nonnegotiable state-law rights on employers or

employees independent of any right established by contract, or,

instead, whether evaluation of the tort claim is inextricably

intertwined with consideration of the terms of the labor contract.”

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). It is

important to note that “not every dispute concerning employment, or

tangentially involving a provision of a collective-bargaining

agreement, is preempted by § 301 or other provisions of the federal

labor law.” Id. at 211.

In determining whether plaintiffs’ state law tort claims

require interpretation of the terms of the CBA, we must look to the

elements of each challenged state law claim. Lightning v. Roadway

Express, Inc., 60 F.3d 1551, 1557 (11th Cir. 1995). 

1. Plaintiffs Assault and Battery Claims

Under Alabama law, an assault consists of “an intentional,

unlawful, offer to touch the person of another in a rude or angry

manner under such circumstances as to create in the mind of the

party alleging the assault a well-founded fear of an imminent

battery, coupled with the apparent present ability to effectuate

the attempt, if not prevented.” Allen v. Walker, 569 So.2d 350,

351 (Ala. 1990) (citations omitted). A battery has been defined by

the Alabama Supreme Court as follows: “A successful assault
15 Plaintiffs’ assault claim arises from the incident in which

Giangrosso threatened Peterson with a nine millimeter pistol while

Peterson was a passenger in Giangrosso’s truck on June 17, 1993.

The battery claim is based on Giangrosso’s kicking of Peterson on

June 16, 1993.

15

becomes a battery. A battery consists in an injury actually done

to the person of another in an angry or revengeful or rude or

insolent manner . . . to lay hands on another in a hostile manner

is a battery, although no damage follows.” Surrency v. Harbison,

489 So.2d 1097, 1104 (1986)(emphasis in original)(citations

omitted).

BMI contends that to determine whether BMI is liable for the

assault and battery committed by BMI supervisor Giangrosso15, a

court would necessarily have to interpret the CBA in order to

adjudicate the elements of each claim. This argument lacks merit.

Resolution of plaintiffs’ assault and battery claims involves a

purely factual inquiry that does not turn on the meaning of any

provision of the collective bargaining agreement. See Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 (1988).

Plaintiffs’ right to be free from assault and battery rests firmly

on a nonnegotiable state right and does not turn on any

interpretation of BMI’s collective bargaining agreement. See

Hayden v. Reickerd, 957 F.2d 1506, 1509 (9th Cir. 1992).

Accordingly, we reverse the district court’s order with regard to

plaintiffs’ assault and battery claims. 

2. Plaintiffs’ Outrage Claim

Under Alabama law, to present a jury question on the tort of

outrage, or intentional infliction of emotional distress, “the
16

plaintiff must present sufficient evidence that the defendant’s

conduct (1) was intentional or reckless; (2) was extreme and

outrageous; and (3) caused emotional distress so severe that no

reasonable person could be expected to endure it.” Thomas v. BSE

Indus. Contractors, Inc., 624 So.2d 1041, 1043 (Ala. 1993). BMI

contends that a construction of the CBA is essential to the

resolution of this claim, and as such, this claim is preempted.

BMI argues that the determination as to whether the employers’

actions were sufficiently outrageous to satisfy the second element

of this tort is dependent upon the employment context, and here

the employment context is largely dependent on the CBA. Given the

outrageous nature of the incidents at issue, BMI’s argument is

untenable.

An analysis of an employee’s outrage or intentional infliction

of emotional distress claim may very well require a court to

construct and interpret an employment contract or CBA in order to

properly ascertain the terms and conditions of that employee’s

employment. See Lightning, 60 F.3d at 1557. There are times,

however, when “the extreme and outrageous character of certain

sorts of employer conduct may be evident without reference to the

terms of a collective bargaining agreement.” Id. (citations

omitted). The employer conduct here rises to such a level.

The facts here are markedly similar to facts before this court

in Lightning, where the plaintiff was pursuing an intentional

infliction of emotional distress claim against his employer under

Georgia law. After outlining the physical and verbal abuse heaped
16See Ala. Code § 6-2-38(l) (1993) (personal injury actions

not specifically enumerated have a limitations period of two

years); see also Goodman v. Lukens Steel Co. , 482 U.S. 656, 661

(1987) (§ 1981 is governed by state personal injury statute of

limitations).

17

on the plaintiff by his employer, this court concluded that the

plaintiff’s claim “revolves around conduct by his employer that is

not even arguably sanctioned by the labor contract.” Id.

(citations omitted). The same can be said for this case, where the

abuse by BMI supervisor Giangrosso consisted of racial taunts, an

assault with a pistol, and an incident where Giangrosso kicked

Peterson from behind with force sufficient to bring Peterson to his

knees. Abuse of this sort cannot arguably be sanctioned by the

terms of the CBA at issue, and as such a resolution of this tort

claim does not implicate the provisions of the CBA. See id.

Accordingly, we reverse the order of the district court with

respect to plaintiffs’ state law claim for outrage.

D. BMI’s Alternative Grounds in Support of Dismissal

BMI raises seven alternative grounds in support of the

district court’s order granting summary judgment to BMI. Of these

seven grounds, we find that only the issue of the timeliness of

plaintiffs’ claims merits discussion. While plaintiffs concede

that their Title VII claims were untimely, BMI asserts that all of

plaintiffs claims were untimely. BMI points out that all of the

claims raised by plaintiffs are subject to a two year statute of

limitations,16 and that the acts complained of by plaintiffs

occurred on or before June 17, 1993. BMI does not dispute that the

plaintiffs filed a timely state court action on February 2, 1995,
17"If a timely filed action is dismissed after the limitations

period measured from the accrual of the claim, has run, a new

action on the same claim is time barred unless a limitations

savings statute provides otherwise.” Stinson, 972 F.2d at 62.

Alabama has no such savings statute.

18Plaintiffs did receive notice of the dismissal on June 23,

1995, but BMI asserts the statute of limitations ran on June 17,

1995.

18

well within the two year statute of limitations. Instead BMI

argues that since the state court dismissed plaintiffs claims on

June 9, 1995, and plaintiffs did not move to reinstate their claims

until June 28, 1995, the plaintiff’s claims were not filed within

the two year statute of limitations. BMI characterizes the

reinstatement of plaintiffs’ case as being tantamount to the filing

of a new lawsuit, and cites Stinson v. Kaiser Gypsum Co., 972 F.2d

59 (3d Cir. 1992), for the proposition that such an action would be

time barred.17 While we do not disagree with the rule articulated

in Stinson, we find fault with BMI’s characterization of the

reinstatement of plaintiffs’ claim in state court as a “new”

action.

After plaintiffs had their state court case dismissed for

failure to serve the defendant, plaintiffs moved to have the case

reinstated. The reinstatement of the original suit was not the

commencement of the action, rather, the action was commenced with

the timely filing of the state court suit. The dismissal by the

state court was involuntary and without notice18, and the plaintiffs

promptly moved to reopen the suit. As such, the reinstatement by

the state court was not the initiation of a new action, but rather

the reopening of the original case. See Ford v. Sharp, 758 F.2d
19

1018, 1024 (5th Cir. 1985). We hold, under these facts, that the

reinstatement of plaintiffs’ suit was not the initiation of a new

action and that plaintiffs’ § 1981 and state law tort claims were

timely filed. 

IV. Conclusion

For the foregoing reasons, we VACATE the order granting

summary judgment and dismissing the state law claims and REMAND the

case for further proceedings consistent with this opinion.

REVERSED and REMANDED.