                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2415
                                      ___________

                           DEAN WARREN SCHOMBURG,
                                            Appellant

                                           v.

       DOW JONES & COMPANY, INC.; INDEPENDENT ASSOCIATION OF
        PUBLISHERS OF EMPLOYEES, CWA LOCAL 1096, AFL-CIO, CLC
                 ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. Civ. No. 11-cv-03410)
                     District Judge: Honorable Anne E. Thompson
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 7, 2012

       Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

                          (Opinion Filed: November 14, 2012)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Dean Warren Schomburg appeals from the District Court’s orders dismissing his

amended complaint against Dow Jones & Company, Inc. (“Dow Jones”) and denying

reconsideration of that ruling. We will vacate in part the order dismissing the amended
complaint and remand for further proceedings.

                                             I.

       Dow Jones employed Schomburg as a radio anchor for some fourteen years until

his employment terminated in 2008. On June 13, 2011, Schomburg filed suit pro se

against Dow Jones, apparently for racial discrimination, under Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Schomburg used a form

complaint, which in paragraph eight states “The Equal Employment Opportunity

Commission [‘EEOC’] issued the attached Notice-Of-Right-To-Sue letter which was

received by you on ___, ___, ___.” In the accompanying blanks, Schomburg wrote

“March 8, 2011.”

       Schomburg submitted his complaint along with an application for leave to proceed

in forma pauperis. The District Court denied that motion and dismissed the action

without prejudice for Schomburg’s failure to pay the filing fee. Schomburg later paid the

fee and filed an amended complaint in which he added his employees’ Union as a

defendant. He also asserted, in addition to his Title VII claim, claims for: (1) age

discrimination and involuntary retirement under the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 621 et seq.; (2) discharge in retaliation for union activities in

violation of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq.; and (3)

wrongful discharge in violation of a collective bargaining agreement under the Labor

Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq. The amended complaint

did not contain any allegation concerning when Schomburg received his EEOC letter.



                                             2
       Dow Jones filed a Rule 12(b)(6) motion to dismiss the amended complaint. Dow

Jones sought dismissal of Schomburg’s Title VII and ADEA claims on the sole ground

that he had not filed suit within ninety days of March 8, 2011, the date on which he

initially alleged he had received his EEOC letter. See 42 U.S.C. § 2000e-5(f)(1) (Title

VII); 29 U.S.C. § 626(e) (ADEA). Dow Jones raised no other argument addressed to the

legal or factual sufficiency of those claims. In response, Schomburg filed a “Notice of

Motion for a Supplemental Pleading,” in which he asserted, inter alia, that the EEOC

letter was dated March 7, 2011, but that he had not actually received it until March 18,

2011. Schomburg provided no additional details in that regard, but it appears that his

new allegation of receipt would make his Title VII and ADEA claims timely. 1

       By order entered March 27, 2012, the District Court construed Schomburg’s filing

as a motion for leave to amend his complaint, denied it as futile, and dismissed all claims

against Dow Jones. In relevant part, it dismissed Schomburg’s Title VII and ADEA

claims because he had not filed suit within ninety days after the date on which he initially

alleged he received his EEOC letter. The District Court acknowledged Schomburg’s

later assertion that he received the letter on a later date, but it held him to his initial

allegation on the ground that “a plaintiff is not permitted to take a contrary position to an

allegation in a complaint in order to avoid dismissal.” The Union filed a motion to


1
 If Schomburg received the EEOC letter on March 8, 2011, as he initially alleged, then
his complaint was due to be filed by June 6, 2011. If Schomburg received it instead on
March 18, 2011, then his complaint was due to be filed by June 16, 2011. Schomburg’s
complaint is deemed filed for statute of limitations purposes on June 13, 2011, the date
on which he submitted it to the District Court along with his in forma pauperis
application. See McDowell v. Del. State Police, 88 F.3d 188, 191 (3d Cir. 1996).
                                                3
dismiss the claims against it as well, and the District Court granted that motion on April

20, 2012.

       After the District Court granted Dow Jones’s motion to dismiss, Schomburg filed

a timely motion for reconsideration of that ruling. Schomburg repeated his assertion that

he had not received the EEOC letter until March 18, 2011, and he claimed that he

mistakenly wrote March 8 because he is a first-time litigant and was nervous while filling

out the form complaint at the court house. He also attributed the delay in receiving the

letter to alleged delays in mail delivery in New Jersey caused by severe weather, and he

attached an executive order declaring a state of emergency beginning on March 9, 2011.

The District Court denied that motion on May 7, 2012, and Schomburg appeals pro se. 2

                                              II.

       Schomburg’s sole arguments on appeal are addressed to the District Court’s ruling

that his Title VII and ADEA claim are untimely because he did not file suit within ninety

days of March 8, 2011, the date on which he initially alleged he received the EEOC

letter. In particular, he argues that his initial allegation was mistaken and that the District

Court should have allowed him to amend his complaint to allege that he received the



2
  Schomburg did not mention the District Court’s order dismissing his claims against the
Union in his notice of appeal, and he has raised no arguments addressed to those claims
in his briefs. Schomburg also has raised no argument as to the District Court’s dismissal
of his NLRA or LMRA claims against Dow Jones. We thus deem any challenge to those
rulings waived. We have jurisdiction under 28 U.S.C. § 1291. Schomburg’s timely
appeal from the denial of reconsideration brings up for review the District Court’s
underlying order dismissing his complaint and denying leave to amend. See Long v.
Atlantic City Police Dep’t, 670 F.3d 436, 446 n.20 (3d Cir. 2012). We exercise plenary
review over the District Court’s dismissal of Schomburg’s complaint and review the
                                               4
letter instead on March 18, 2011. We agree.

       District courts “should freely give leave [to amend] when justice so requires.”

Fed. R. Civ. P. 15(a)(2). As this language suggests, “[a] liberal policy toward allowing

amendment to correct errors in the pleadings clearly is desirable and furthers one of the

basic objectives of the federal rules—the determination of cases on their merits.” 6

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1474 (3d ed.

2008). Thus, leave to amend ordinarily should be denied only when amendment would

be inequitable or futile. See Great W. Mining & Mineral Co., 615 F.3d at 174. “This

approach ensures that a particular claim will be decided on the merits rather than on

technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990).

       The District Court acknowledged this general policy but reasoned that, “[a]lthough

leave to amend should be freely given in most instances, a plaintiff is not permitted to

take a contrary position to an allegation contained in a complaint to avoid dismissal.” In

doing so, the District Court relied on two of our decisions for the proposition that

Schomburg’s initial allegation is a binding judicial admission. See Sovereign Bank v.

BJ’s Wholesale Club, Inc., 533 F.3d 162, 181 (3d Cir. 2008); Parilla v. IAP Worldwide

Servs. VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004). Neither of those decisions, however,

involved the question of whether a plaintiff could amend a complaint to cure a purported

factual mistake. 3 And even if Schomburg’s initial allegation constituted a judicial


denial of both leave to amend and reconsideration for abuse of discretion. See Great W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010).
3
  In Sovereign Bank, an appellant attempted to take a legal position on appeal that was
contradicted by an allegation in its complaint, and we held that the allegation was a
                                             5
admission, it does not follow that he may not amend it.

       To the contrary, many courts, including ours, have recognized that judicial

admissions may be withdrawn by amendment. See, e.g., 188 LLC v. Trinity Indus., Inc.,

300 F.3d 730, 736 (7th Cir. 2002) (rejecting argument that an initial allegation was

conclusive despite a later amendment taking a contrary factual position because “[w]hen

a party has amended a pleading, allegations and statements in earlier pleadings are not

considered judicial admissions”); American Title Ins. Co. v. Lacelaw Corp., 861 F.2d

224, 226 (9th Cir. 1988) (“Factual assertions in pleadings . . ., unless amended, are

considered judicial admissions conclusively binding on the party who made them.”)

(emphasis added); Giannone v. U.S. Steel Corp., 238 F.2d 544, 547 (3d Cir. 1956)

(recognizing that “withdrawn or superseded pleadings” do not constitute judicial

admissions). Disallowing amendment merely because an existing allegation constitutes a

judicial admission is contrary to the liberal amendment policy embodied in Rule 15(a)(2).

       Nor was denial of leave to amend warranted merely because Schomburg sought to

“take a contrary position . . . to avoid dismissal.” Plaintiffs routinely amend complaints

in order to correct factual inadequacies in response to a motion to dismiss. See 6 Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1474 (3d ed. 2008)

(“Perhaps the most common use of Rule 15(a) is by a party seeking to amend in order to

cure a defective pleading.”). That is so even when the proposed amendment flatly


binding judicial admission for that purpose. See Sovereign Bank, 533 F.3d at 181. In
Parilla, we denied the appellee’s motion to dismiss an appeal for lack of standing
because, inter alia, factual concessions in her own complaint revealed the basis for
appellants’ standing. See Parilla, 368 F.3d at 275.
                                             6
contradicts the initial allegation, as in this case. See, e.g., 188 LLC, 300 F.3d at 734-36

(noting that District Court permitted the plaintiff to amend complaint to assert a

contradictory factual position in response to a Rule 12(b)(6) motion and holding that

earlier allegation was no longer a binding judicial admission in light of that amendment);

cf. Gray v. Phillips Petroleum Co., 858 F.2d 610, 612 (10th Cir. 1989) (noting that

ADEA plaintiff amended complaint as of course in response to motion to dismiss to

“change[] the date of the alleged discriminatory action” for statute of limitations purposes

in order to “ma[k]e the filing of the discrimination charge timely under the pleadings”). 4

       This is not to say that a party’s assertion of contrary factual positions in the

pleadings is without consequence. Under certain circumstances, an earlier pleading may

be offered as evidence rebutting a contrary assertion in a later pleading. See 188 LLC,

300 F.3d at 736; Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir. 1996); Andrews v.

Metro N. Commuter R.R. Co., 882 F.2d 705, 707 (2d Cir. 1989). We express no opinion

on whether Schomburg’s initial complaint will be admissible for any purpose, but we

note that the inconsistency between his two allegations at most creates an issue of fact.

See Huey, 82 F.3d at 333. It is not a reason to deny leave to amend.

       Instead of relying on these technicalities, the District Court should have evaluated


4
  Dow Jones relies on unpublished District Court authority for the proposition that
Schomburg “is bound by the admissions made in his original complaint and cannot
simply erase these details by omitting them from his amended complaint.” Davis v.
Williamson, No. 4:08-cv-2009, 2009 WL 136815, at *4 n.4 (M.D. Pa. Jan. 20, 2009).
The plaintiff in that case, however, expressly stood on his amended complaint and did not
seek leave to further amend, like Schomburg, in order to affirmatively correct an alleged
mistake in his prior pleading. See id. at *3.

                                              7
Schomburg’s request for leave to amend under the liberal Rule 15(a)(2) standard, which

generally permits amendments unless they are inequitable or futile. We cannot say that

Schomburg’s proposed amendment would be inequitable or futile here. Schomburg

asserts that he received the EEOC notice on March 18, 2011, but inadvertently wrote the

date as March 8 because, as a first-time litigant, he was nervous while filling out the form

complaint at the courthouse. Schomburg further asserts that extreme weather explains

why he did not receive the EEOC notice until eleven days after the EEOC issued it on

March 7, and he offered some support. 5 Dow Jones argues that these assertion are

insufficiently supported as an evidentiary matter to rebut the presumption that

complainants receive EEOC letters within three days after mailing. See Seitzinger v.

Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). The very cases on which

Dow Jones relies, however, reveal that these arguments are premature. See, e.g., Payan

v. Aramark Mgmt. Servs. Ltd. P’Ship, 495 F.3d 1119, 1126-27 (9th Cir. 2007)

(addressing date of receipt of EEOC letter on summary judgment); Seitzinger, 165 F.3d

at 239 (same). Schomburg’s assertions are not so improbable that they need not be taken

as true for present purposes, and neither the District Court nor Dow Jones have suggested

otherwise. See Great W. Mining & Mineral Co., 615 F.3d at 175 (“The standard for

assessing futility is the same standard of legal sufficiency as applies under Rule

12(b)(6).”) (quotation marks and alterations omitted). Nor do we see any indication that


5
  Schomburg frames this issue as one of “equitable tolling,” but his assertions do not
implicate that doctrine. Schomburg’s assertions relate to the date on which he received
the EEOC letter that started the ninety-day clock, not to any potentially excusable delay
in filing suit thereafter.
                                             8
permitting Schomburg to amend his complaint would be inequitable. To the contrary,

Schomburg promptly moved to correct his initial allegation after Dow Jones first raised

the issue in its motion to dismiss. We express no opinion on the truth of Schomburg’s

assertions or the merits of his underlying claims. We conclude, however, that the District

Court should have allowed him to amend his complaint to allege a date that might make

those claims timely and thus might permit a resolution on the merits.

      For these reasons, we will vacate the District Court’s order of March 27, 2012, to

the extent that it denied Schomburg’s motion to amend his Title VII and ADEA claims

against Dow Jones and remand for the District Court to permit him to amend his

complaint as to those claims only.




                                            9
