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Regional Transportation District v. Lopez5/20/1996
g his or her complaint to reflect the changed circumstances, i.e., compliance with statutory requirements. See Perkins, 939 F.2d at 471 ("the receipt of that letter after the complaint had been filed, but before it had been dismissed, effectively cured the deficiency in the original complaint"); Jones v. American State Bank, 857 F.2d 494, 499-500 (8th Cir. 1988) (the "receipt of a right-to-sue notice is a condition precedent to a filing of a Title VII claim, curable after the action has commenced"). Alternatively, the prematurely filed claims can be dismissed without prejudice with leave to refile once the EEOC has issued a "right to sue" letter.
The rationale for this treatment is twofold. First, if there is no prejudice to the defendant as a result of the premature filing, there is no reason to cut the plaintiff off. Second, since the purpose of the waiting period prior to the issuance of the "right to sue" letter is to permit the agency to attempt a conciliation process before the plaintiff resorts to the courts, and if such process has not been stymied by the premature filing, the purpose of the waiting period has not been undermined. See Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1445 n.1 (9th Cir. 1990) ("A Title VII complainant may file an action prior to receiving her right to sue letter, provided there is not evidence showing that the premature filing precluded the state from performing its administrative duties or that the defendant was prejudiced by such filing.").
Here, it appears that RTD neither was prejudiced by Lopez's premature filing nor was it precluded from performing its internal process of evaluating Lopez's claims and assessing whether or not to settle with him. Therefore, Lopez's PIP claim should not have been dismissed with prejudice by the trial court. Rather, Lopez should be permitted to refile his PIP claim once he either receives notice from RTD denying his PIP claim or the ninety-day period has expired, whichever occurs first.
IV.
For the foregoing reasons, we reverse the court of appeals on that portion of its decision pertaining to Lopez's negligence claim and affirm the court of appeals on other grounds on that portion of its decision pertaining to Lopez's PIP claim. We return the case with directions to remand it to the trial court for findings of fact and appropriate Disposition on the personal service issue and for reinstatement of the PIP claim.
Disposition
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
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