Walton v. Eaton Corp.

563 F.2d 66, 15 Fair Empl. Prac. Cas. (BNA) 1735

Opinions

OPINION OF THE COURT

GARTH, Circuit Judge.

This appeal arises from consolidated employment discrimination actions which the plaintiff, Mrs. Carol J. Walton, initiated against her former employer, the Eaton Corporation. Mrs. Walton, a black female, alleged that Eaton had discriminated against her because of her race and sex and that it had therefore violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. After a non-jury trial, the district court made detailed findings of fact and entered judgment in favor of Eaton. Mrs. Walton appealed.

On appeal, Mrs. Walton argued that the judgment of the district court should be reversed for five reasons. She maintained that the district court erred 1. in refusing to permit a jury trial on her claims under 42 U.S.C. § 1981,¹ 2. in determining that her discharge was not discriminatory or a reprisal, 3. in determining that she had not been discriminated against in pay, 4. in denying her motion for class action certification as untimely, and 5. in refusing to admit into evidence the findings of fact and the determination made by the Equal Employment Opportunity Commission.

This appeal was originally heard by a panel of this Court. Prior to the filing of a panel opinion, the Court voted to consider the appeal in banc.1a We affirm the judgment of the district court. Of the five arguments advanced by Mrs. Walton, only the first — the propriety of the district court’s refusal to permit a jury trial on her claims under 42 U.S.C. § 19811b — requires extended discussion.

I.

We have concluded that the district court did not err in refusing to permit a jury trial on Mrs. Walton’s claims under 42 U.S.C. § 1981.

A.

Mrs. Walton initiated two separate employment discrimination actions against the defendant-appellee, Eaton Corporation. Both were filed in the District Court for the Eastern District of Pennsylvania.

Mrs. Walton initiated her first employment discrimination action against Eaton (Civil Action 73-322) on February 14, 1973. That suit was brought as a class action in which Mrs. Walton sought to represent all blacks and females who (a) were employed by Eaton at that time, (b) had sought employment with Eaton during the past eight years, or (c) would seek employment with Eaton in the future. Mrs. Walton asserted causes of action under 42 U.S.C. §§ 1981 and 1983, as well as under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She alleged that, because she was black and female, Eaton had discriminated against her in many respects. She claimed that she had been denied equal treatment with respect to pay, promotions, and opportunities to obtain educational benefits. She also alleged that she had been harassed on the job and that she was discriminatorily discharged. Finally, she claimed that Eaton had systematically discriminated on the basis of race and sex. She sought declaratory and injunctive relief, an award of back pay for herself and all other members of the classes she sought to represent, attorney’s fees, punitive damages, costs, and “such other relief as the Court may deem proper.” Her complaint in Civil Action 73-322 expressly waived trial by jury. Eaton filed a timely answer, which did not seek a jury trial, and Mrs. Walton did not demand a jury trial within ten days thereafter.²

At some point in early 1974 it appears that a second set of attorneys began to represent Mrs. Walton. Apparently not satisfied with the complaint filed by her first attorneys, the new attorneys, rather than seeking to amend the first complaint, initiated a second employment discrimination action (Civil Action No. 74-373) against Eaton on February 14, 1974, exactly one year after the first complaint was filed. In almost all respects Mrs. Walton’s second complaint was indistinguishable from her first. Like her first complaint, it asserted causes of action under 42 U.S.C. §§ 1981 and 1983 and Title VII. In addition, the second complaint, like the first, alleged that Mrs. Walton had been harassed, discharged, and denied equal treatment in pay, promotions, and educational opportunities because of her race and sex. However, Mrs. Walton’s second complaint did differ from her first in three respects: it was not brought as a class action; it contained a general demand for a trial by jury; and this second complaint, unlike the first, alleged that Mrs. Walton had suffered “emotional and mental injury” as a result of the defendant’s action. Consequently the second complaint apparently sought compensatory damages,³ while the first complaint sought only punitive damages.

On July 3, 1974, the district court, on its own motion, consolidated the two actions. On November 19, 1974, nine months after the second complaint was filed and one year and nine months after the first complaint was filed, Mrs. Walton moved to have her first employment discrimination action (Civil Action 73-322) certified as a class action. The district court denied this motion on December 17, 1974.

B.

At the outset, it is clear that Mrs. Walton had no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant. United States v. Haytian Republic, 154 U.S. 118, 123-24, 14 S.Ct. 992, 38 L.Ed. 930 (1894); Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849, 851, 125 Ct.Cl. 297 (1st Cir. 1947) (Clark, J., sitting by designation); 1A J. Moore, Federal Practice 110.219 at 2601 (2d ed. 1974); P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 1232-33 (2d ed. 1973).

When the district court became aware that the two actions begun by Mrs. Walton were virtually identical, it could have dismissed her second complaint without prejudice or it could have stayed proceedings in the second action until judgment was entered in the first. Id. As Judge Charles E. Clark wrote:

“The pendency of a prior pending action in the same federal court is ground for abatement of the second action.” . There is no reason why a court should be bothered or a litigant harassed with duplicating lawsuits on the same docket . . (Citations omitted.)

Sutcliffe Storage & Warehouse Co. v. United States, supra at 851. Obviously, if the district court had dismissed the second complaint or stayed the second action, Mrs. Walton would have had no right to a jury trial.⁴ However, instead of following either of those procedures, the district court on its own motion consolidated the two actions.

The district court’s decision to consolidate Mrs. Walton’s two actions was obviously unobjectionable. When a court learns that two possibly duplicative actions are pending on its docket, consolidation may well be the most administratively efficient procedure. If the second complaint proves to contain some new matters, consolidation — unlike dismissal of the second complaint without prejudice or staying the second action — will avoid two trials on closely related matters. If, on the other hand, the second complaint proves to contain nothing new, consolidation of the two actions will cause no harm provided that the district court carefully insures that the plaintiff does not use the tactic of filing two substantially identical complaints to expand the procedural rights he would have otherwise enjoyed. In particular, the court must insure that the plaintiff does not use the incorrect procedure of filing duplicative complaints for the purpose of circumventing the rules pertaining to the amendment of complaints, Fed.R.Civ.Proc. 15, and demand for trial by jury, Fed.R.Civ.Proc. 38.

In the instant case, we are convinced that, in considering whether Mrs. Walton waiver her right to trial by jury, the filing of the second complaint and its consolidation with the first must be regarded as an amendment of the first complaint. If Mrs. Walton’s second set of attorneys was dissatisfied with the first complaint filed by her previous counsel, the proper procedure for them to have followed would have been to have sought leave of court to amend the first complaint.⁵ The adoption of an incorrect procedure as employed in this case should not result in a greater right to trial by jury than would have been available had the correct course of amending the first complaint been followed. In light of the sequence of events described above, it is evident that Mrs. Walton’s second complaint must be regarded as no more than an amendment to her first complaint. As such, it is clearly apparent that she waived her right to trial by jury on her claims under 42 U.S.C. § 1981.

C.

It is well established that if the original pleadings in an action effectively waive trial by jury under Fed.R.Civ.Proc. 38(b) and (d), the right to trial by jury of all matters contained in those pleadings cannot be revived by amending the original pleadings. Hostrop v. Board of Junior Coliege District No. 515, 523 F.2d 569, 581 (7th Cir. 1975); Trixier Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045, 1049 (9th Cir. 1974); Lanza v. Drexel & Co., 479 F.2d 1277, 1310 (2d Cir. 1973); Olund v. Swarthout, 459 F.2d 999, 1000 (6th Cir. 1974); Williams v. Farmers & Merchants Ins. Co., 457 F.2d 37, 38 (8th Cir. 1972); Connecticut General Life Insurance Co. v. Breslin, 332 F.2d 928, 931 (5th Cir. 1964); American Fidelity & Casualty Co. v. All American Bus Lines, Inc., 190 F.2d 234, 237-38 (10th Cir. 1951); Fontaine v. Tasty Baking Co., 20 Fed.R.Serv.2d 490 (E.D.Pa.1975); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2320 at 94-95 (1971); 5 J. Moore, Federal Practice 138.39[2] at 321-22 (2d ed. 1976). Cf. Pennsylvania ex rel. Feiling v. Sincavage, 439 F.2d 1133 (3d Cir. 1971) (amendment to complaint adding new plaintiff did not revive previously waived right to jury trial). Jury trial may be demanded for any “new issues” raised by the amended pleadings, “but the amendment does not revive a right, previously waived, to demand jury trial on the issues already framed by the original pleadings.” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2320 at 94-95 (1971).

In this case, Mrs. Walton unquestionably waived her right to trial by jury on all issues framed by her original complaint.⁶ The only addition to the second complaint which could even arguably constitute a “new issue” was the allegation that Mrs. Walton had suffered mental and emotional injury.⁷ We are convinced, however, that that allegation cannot be accurately characterized as a “new issue” in the sense relevant here.

As we read the established case law, it holds that amended pleadings which concern “the same general issues” as the previous pleadings do not raise “new issues” under Fed.R.Civ.Proc. 38(b), even if they differ from the earlier pleadings in some particulars. Hostrop v. Board of Junior College District No. 515, supra, at 580-81; Trixler Brokerage Co. v. Ralston Purina Co., supra, at 1049-50; Lanza v. Drexel & Co., supra, at 1309-11; Connecticut General Life Insurance Co. v. Breslin, supra, at 931; Alcoa S. S. Co. v. Ryan, 211 F.2d 576, 578 (2d Cir. 1954); Moore v. United States, 196 F.2d 906, 908 (5th Cir. 1952); Roth v. Hyer, 142 F.2d 227, 228 (5th Cir. 1944); American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Thea-tres, Inc., 45 F.R.D. 38, 39-40 (S.D.N.Y. 1968); Sleeman v. Chesapeake & Ohio Railroad Co., 263 F.Supp. 117, 118-19 (W.D. Mich.1967); Southern Equipment Co. v. Christensen, 40 FRD 126, 127 (S.D.N.Y. 1966); Railex Corp. v. Joseph Guss & Sons, Inc., 40 FRD 119,123-24 (D.D.C.1966), aff’d 382 F.2d 179 (D.C.Cir.1967) (issue apparently not raised on appeal); Leighton v. New York, Susquehanna and Western RR Co., 36 F.R.D. 248 (S.D.N.Y.1964); New Hampshire Fire Insurance Co. v. Perkins, 28 F.R.D. 588, 590-91 (D.Del.1961); E. H. Tate Co. v. Jiffy Enterprises, 16 F.R.D. 571 (E.D.Pa. 1954); Annot., 18 A.L.R.Fed. 754, §§ 6-7 (1974).

The most illuminating case on this point is Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973). In that case, the owners of all the stock of the Victor Billiard Company conveyed those shares to the BarChris Construction Company in exchange for Bar-Chris stock. Prior to the transfer, BarChris officers supplied an annual report, a prospectus, and other financial reports concerning BarChris to the owners of the Victor stock. When BarChris filed a petition in bankruptcy less than one year after the exchange, the former owners of the Victor stock commenced an action for compensatory damages against former officers and directors of BarChris under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 CFR § 240.10b-5. One of the defendant-officers, Kircher, waived his right to trial by jury on claims framed by this complaint. Two years after their original complaint was filed, the plaintiffs amended their original complaint by adding an allegation that the prospectus which had been supplied to them was false on the date of issue. In response to this amendment, Kircher made a timely demand for trial by jury. A year and one-half later, the plaintiffs again amended their complaint. The new amendments 1. alleged that the defendant’s conduct had violated Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), 2. alleged that the defendants’ conduct had been willful, and 3. requested punitive damages. In response, Kircher again made a timely demand for trial by jury. Nevertheless, the district court denied Kircher’s application for a jury trial, and the Second Circuit affirmed. The Court wrote:

The amendments did not raise new issues within the meaning of Rule 38 such as would entitle Kircher to demand a jury trial as of right. The ease involved, and the original complaint raised, one basic issue: Whether plaintiffs were fraudulently induced to exchange their Victor stock. Kircher’s failure to demand a jury trial waived his right as to all issues relating to this general area of dispute. The amendment added no new issues: the same conduct and the same allegedly false documents constituted the basis for any claim under Rule 10b-5, Section 17(a), or common law fraud. The willfulness and falsity as of a particular date merely clarified “the same general issues” raised in the original complaint. Moore v. United States, 196 F.2d 906, 908 (5th Cir. 1952). Kircher had been put on notice of the underlying facts and basic legal theory — fraud—upon which plaintiffs sought relief, and the character of the suit was in no way changed by the amendments.

(Emphasis added.) Id. at 1310.

It seems clear that the reasoning in Lan-za, which we find persuasive, defeats Mrs. Walton’s claim that she was entitled to a jury trial in this case. Under Lanza, the allegation that Mrs. Walton had suffered “emotional and mental” injury would not constitute a “new issue.” In the language of Lanza, the addition of that allegation did not change the “basic issue” or the “general area of dispute,” i. e., whether Eaton discriminated against Mrs. Walton while she was in the company’s employ. The second complaint here concerned the “same conduct” on the part of Eaton as the first complaint, i. e., that Eaton discriminatorily discharged Mrs. Walton; that Eaton employees harassed her on the job; and that Eaton discriminated against her with respect to pay, promotions, and opportunities to obtain educational benefits. Moreover, the addition in this case of the allegation that Mrs. Walton suffered “mental and emotional injury” is analogous to the amendment in Lanza which alleged for the first time that the defendants had acted willfully. Both “amendments” pleaded facts which had not been alleged in the previous complaints, but neither raised a “new issue,” since they did not change the “basic issue” in the case or the “general area of dispute.”

In sum, under the sound reasoning of Lanza and the other authorities treating with this point, it is obvious that no “new issue” was added by Mrs. Walton’s second complaint7a and that therefore her first complaint with its express jury waiver did not entitle her dispute with Eaton to be resolved by a jury.7b

II.

We do not believe that any of the other arguments advanced by Mrs. Walton are meritorious. In determining that Mrs. Walton’s discharge was neither discriminatory nor a reprisal, the district court applied the correct standard of law⁸ and its findings of facts were not “clearly erroneous.”⁹ The same is true of the district court’s determination that Mrs. Walton had not been discriminated against in pay.¹⁰

We are convinced that the district court did not abuse its discretion in denying Mrs. Walton’s motion for a class action determination, since that motion was not made until 21 months after her first complaint was filed.¹¹ Finally, we believe that the district court did not abuse its discretion by refusing to admit the EEOC’s findings of fact and its determination on the merits of Mrs. Walton’s charges.¹² Gil-lin v. Federal Paper Board Go., Inc., 479 F.2d 97, 99 (2d Cir. 1973); Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972).

For the reasons expressed above, the judgment of the district court will be affirmed.

Chief Judge SEITZ concurs in the result.

Footnotes

1

. Mrs. Walton concedes that she did not have a right to a jury trial on her Title VII claims. See, e. g., Slack v. Havens, 522 F.2d 1091, 1094 (9th Cir. 1975); EEOC v. Detroit Edison Co., 515 F.2d 301, 308 (6th Cir. 1975), vacated on other grounds, 431 U.S. 951, 97 S.Ct. 2669, 52 L.Ed.2d 267 (1977); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir. 1971); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969).

1a

. Judge Gibbons has attached the panel majority opinion to his in banc dissent. He notes that it was never published under our Internal Operating Rules, as it had not cleared the Court after circulation to non-panel members and was therefore not filed. As a reading of the pane] majority opinion reveals, and as the panel dissent (which has not been reproduced) pointed out, there was a failure in the panel opinion to discuss the very important procedural issue upon which this case turns. That failure resulted in this Court’s decision to rehear this case in banc. Inasmuch as it has not been the practice to publish panel opinions which have not cleared the Court on initial circulation, we do not feel that it would add anything to the issues before the Court to publish the panel dissent, particularly since we regard the discussion of our in banc procedure as found in Part IV of Judge Gibbons’s dissenting opinion as being irrelevant to the issues presently before the Court.

1b

. The dissent states that the district court ruled “that, as a matter of law, a claim under 42 U.S.C. § 1981 for money damages for the infliction of emotional harm was not an action at law to which the seventh amendment right to jury trial applied.” Dissenting Op. at 1. See also id. at 3, 4. The record casts appreciable doubt upon the accuracy of this characterization of the district court’s ruling. The defendant argued strenuously in this Court that the district court ruled only that the plaintiff had orally waived her right to jury trial under § 1981. The district court record reveals that the arguments of counsel and the observations of the district judge were focused on the issue of waiver as well as on the issue of pendent state claims. Because we affirm the district court for the reasons stated below, we find it unnecessary to address any substantive issue presented by 42 U.S.C. § 1981.

2

. See Fed.R.Civ.Proc. 38(b) and (d).

3

. The prayer for relief in the second complaint stated simply:

“Wherefore, Plaintiff claims of the Defendant sums of money in excess of Ten Thousand ($10,000.00) Dollars and brings this action to recover same.”

4

. If the district court had dismissed the second complaint without prejudice or if it had stayed the second action, the first action would undoubtedly have proceeded to final judgment. That action would have been tried to the court, since Mrs. Walton had unquestionably waived jury trial in that action. Once final judgment was entered in the first action, res judicata would have barred the second action.

5

. Since Eaton had filed an answer to the first complaint on August 17, 1973 leave of court would have been required in order to amend that complaint on February 14, 1974. Fed.R. Civ.Proc. 15(a).

6

. The words “(JURY TRIAL WAIVED)” appear at the head of Mrs. Walton’s complaint in Civil Action 73-322. Mrs. Walton waived her right to a jury trial on the claims asserted in that action by failing to demand a jury trial within 10 days after Eaton filed its answer on August 17, 1973. Fed.R.Civ.Proc. 38(b) and (d).

7

. As we noted above, an additional difference between the first and second complaints is that the only type of damages specifically requested in the first complaint was punitive damages whereas the second complaint appears to have requested compensatory damages. It is clear, however, that the request for compensatory damages in the second complaint did not constitute a “new issue.” The first complaint requested, in addition to punitive damages, “such other relief as the Court may deem appropriate.” That request could be construed as encompassing a demand for compensatory damages. In addition, even if the first complaint had not included a demand for “such other relief as the Court may deem appropriate,” Mrs. Walton might still have been awarded compensatory damages in the first action since Fed.R.Civ.Proc. 54(c) states that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” See also Hostrop v. Bd. of Jr. College Dist. No. 515, supra, at 579.

7a

. The dissent cites only one case in support of its contention that the claim that Mrs. Walton suffered “emotional and mental injury” was a “new issue.” That case, First Wisconsin Bank of Rice Lake v. Klapmeier, 526 F.2d 77 (8th Cir. 1975), hardly supports the dissent’s position, since the amended pleading in that case is not at all comparable to the “amended pleading” here. Klapmeier was an action by a bank against the guarantors of a promissory note. The bank sought to recover from the guarantors the amount of a judgment which it had previously obtained against the maker of the note. The defense asserted in the guarantors’ original answer appears to have been that the bank had orally agreed that the guarantee would terminate prior to the date on which the judgment against the maker was obtained. The guarantors’ amended answer, which contained a timely demand for trial by jury (a factor not present here), added the new defense of fraud in the inducement. Since the defense of fraud in the inducement did not concern the “same conduct” or the same “basic issue” as the original answer, the court correctly concluded that it had raised a “new issue” within the meaning of Fed.R.Civ.Proc. 38.

Even were we to regard Mrs. Walton’s claim of emotional injury as a “new issue” — which we do not — the very most to which she could have been entitled under Klapmeier (526 F.2d at 81) is a jury trial as to those damages. However, inasmuch as no liability had been found by the district court with respect to the predicate for such damages, it would have been meaningless to remand for that purpose.

7b

. The dissent contends that the district court erred by failing to consider whether the plaintiff should have been permitted a jury trial under Fed.R.Civ.Proc. 39(b) despite the fact that she had waived her right to a jury trial under Fed.R.Civ.Proc. 38. The record in this case squarely refutes the dissent’s argument.

It is quite true that the district court never formally addressed the question of whether the plaintiff should be afforded a trial by jury under Fed.R.Civ.Proc. 39(b). The simple reason why it did not is apparent. The plaintiff’s attorneys never the filed the motion provided for under Fed.R.Civ.Proc. 39(b) nor did they give any other indication that they sought consideration under that Rule.

Fed.R.Civ.Proc. 39(b) provides in relevant part that

notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues. (Emphasis added.)

“[I]n order to invoke the court’s discretion under Rule 39(b), a motion, or some similar manifestation of the desire of a party to have a jury trial is required.” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2334 at 112 (1971).

In this case, it seems quite clear that the plaintiff’s attorneys never attempted to invoke Rule 39 because the circumstances under which the district court denied plaintiff’s request for a jury trial under Rule 38 made it crystal clear that the court would not have permitted a jury trial under Rule 39.

By February 18, 1975, the date on which the district court denied the plaintiff’s request for a jury trial, this case had already been subjected to numerous delays. On January 7, 1975, the district court had entered an order requiring that all discovery be completed by January 31 and placing the case on the February trial list. On February 14, the plaintiff filed a motion for a two-month trial continuance so that her statistical expert could complete his analysis of Eaton’s employment practices. Argument on this motion was heard on February 18. At that hearing the district court stated that it would not permit the entire trial to be delayed for two months. However, the court did make the following proposal: if a nonjury trial was held, the court offered to hear all the evidence other than that of plaintiff’s expert at the scheduled time and to take the expert’s testimony two months later when his statistical analysis was completed. That proposal, however, was “conditioned on one thing. We can’t try it with a jury under those circumstances.” Supplemental Appendix at 146. Plaintiffs counsel continued to demand a jury trial on at least some issues, and the court then denied plaintiff’s requests for a two-month continuance and for a trial by jury. Since a jury trial — whether under Rule 38 or Rule 39(b) — would have required a two-month delay and since the district court had already stated unequivocally that it would not allow such a delay, it is obvious why no Rule 39(b) motion was ever made.

8

. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (discriminatory refusal to hire).

9

. In a case in which an employee alleges that he or she has been discriminatorily discharged, the employer must prevail if it establishes a “legitimate, nondiscriminatory” reason for the discharge [see McDonnell Douglas Corp. v. Green, supra, at 802-03, 93 S.Ct. 1817] and if the employee fails to prove that the employer’s stated reason for discharging the employee was in fact a pretext. Id. at 804, 93 S.Ct. 1817.

In this case, the district court made findings of fact which establish that Eaton had a “legitimate, nondiscriminatory” reason for discharging Mrs. Walton, viz., that Mrs. Walton walked off the job without permission in violation of the company’s written work rules. See findings of fact 73-85, 87, 103. The court also made findings which establish that Eaton’s stated reason for discharging Mrs. Walton was not a pretext. See findings of fact 90-92. Based upon an independent review of the record, we cannot set aside these findings as “clearly erroneous.” Fed.R.Civ.Proc. 52(a); Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).

10

. See findings of fact 34-36.

11

. Rule 45(c) of the Rules of the United States District Court for the Eastern District of Pennsylvania provides in part:

Within 90 days after the filing of a complaint in a class action, unless this period is extended on motion for good cause appearing, the plaintiff shall move for a determination under subdivision (c)(1) of Rule 23, F.R.Civ.P., as to whether the case is to be maintained as a class action.

We believe that Local Rule 45(c) is a valid exercise of the district court’s power under Fed.R.Civ.Proc. 83, and we are convinced that the court did not abuse its discretion in denying a motion for a class action determination which was untimely under the local rule. Umbriac v. American Snacks, Inc., 388 F.Supp. 265, 274 (E.D.Pa.1975); Fox v. Prudent Resources, 69 FRD 74, 77 & n. 1 (E.D.Pa.1975). See also Gilinsky v. Columbia Univ., 62 FRD 178, 179 (S.D.N.Y.1974) (concerns a similar local rule, the S.D.N.Y.’s Civil Rule HA(c)); Walker v. Columbia Univ., 62 FRD 63, 64 (S.D.N.Y.1974); Sheridan v. Liquor Salemen’s Union, 60 FRD 48, 50-51 (S.D.N.Y.1973).

12

. We note that although the court refused to admit the EEOC’s findings of fact and its determination, the court admitted portions of the file compiled by the EEOC and permitted an EEOC investigator to testify.