Berry v. National Labor Relations Board, No. 2:2015cv06490 - Document 23 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 17 Motion to Dismiss for Lack of Jurisdiction. This matter is hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge Susie Morgan. (bwn)
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Berry v. National Labor Relations Board Doc. 23 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MILTON BERRY, Plain tiff CIVIL ACTION VERSU S N O. 15 -6 4 9 0 N ATION AL LABOR RELATION S BOARD , D e fe n d an t SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court is a Motion to Dism iss filed by the National Labor Relations Board. 1 For the reason s that follow, the m otion is GRAN TED . BACKGROU N D On August 26, 20 10 , the National Labor Relations Board (“Board”) issued a Decision and Order, finding that M&B Services, Inc., engaged in certain unfair labor practices and, thus, had violated the National Labor Relations Act. 2 The Board ordered M&B Services, Inc. to, inter alia, m ake its employees whole by payin g them contractually required wage increases retroactive to Septem ber 1, 20 0 8. 3 The United States Court of Appeals for the Fifth Circuit then entered a judgm ent and m andate on Decem ber 13, 20 10 , enforcing the Board’s Decision an d Order and requiring M&B Services, Inc., and “its officers, agents, successors, and assigns” to com ply. 4 Thereafter, because M&B Services, Inc. allegedly failed to com ply with the Fifth Circuit’s judgm ent an d m andate, the Board issued a Com pliance Specification pursuant 1 R. Doc. 17. R. Doc. 10 -2 at 1– 2. The Board’s August 26th Decision and Order adopted and incorporated by reference its earlier May 29, 20 0 9 Order (R. Doc. 10 -3). 3 R. Doc. 10 -2; R. Doc. 10 -3 at 3– 4. 4 See generally R. Doc. 10 -1. 2 1 Dockets.Justia.com to Sections 10 2.54 and 10 2.55 of the Board’s Rules and Regulations. 5 The Com plian ce Specification noted that “controversies exist over whether M&B, Berry Services, In c. (Berry I), Berry Transportation, LLC, and Berry Services, Inc. (Berry II) [collectively, “the Com panies”], are a single em ployer and jointly liable” and whether Milton Berry and Carolyn Berry—the sole owners and officers of the Com panies—are personally liable. 6 The Com pliance Specification thus added the Com panies as additional corporate respon dents who are jointly liable to fulfill the rem edial obligations of the Board’s Decision and Order. 7 The Com pliance Specification also alleged that Milton and Carolyn Berry are person ally, jointly, and severally liable to fulfill those rem edial obligations, based on their failure “to adhere to corporate form alities in the m anagem ent and direction of the Com panies.”8 The Com pliance Specification advised the Com panies, along with Milton and Carolyn Berry, that they were required to file an answer by Decem ber 14, 20 14, and that if they failed to answer, the allegations in the Com pliance Specification would be deem ed true. 9 The failure to file an answer, accordin g to the Com pliance Specification, would thereafter preclude the Com panies an d Milton and Carolyn Berry from controverting the allegations contain ed therein. 10 No answers were filed, and on February 12, 20 15, the Board’s general counsel filed a m otion for default judgm ent. 11 The Board then issued two notices to show cause, allowing the Com panies and the Berrys an opportunity to respond to the allegations. 12 No 5 R. Doc. 10 -4. R. Doc. 10 -4 at 2– 3. 7 R. Doc. 10 -4 at 3– 4. 8 R. Doc. 10 -4 at 4. 9 R. Doc. 10 -4 at 29– 30 . 10 R. Doc. 10 -4 at 29– 30 . 11 R. Doc. 10 -5 at 2. 12 R. Doc. 10 -6 at 2; R. Doc. 10 -7 at 2. 6 2 responses were filed. As a result, on J une 15, 20 15, the Board entered default judgm ent and issued a Supplem ental Decision and Order, which addressed the am ount of backpay due and concluded that the Com panies and Milton and Carolyn Berry, personally, were jointly and severally liable for that am ount. 13 As of the date of the Supplem ental Decision and Order, the am ount owed was $ 223,891.0 0 . 14 Because the Board’s Supplem ental Decision and Order concluded that Milton and Carolyn Berry were personally liable, 15 the Board’s Contem pt, Com pliance, an d Special Litigation Branch initiated an investigation into Milton and Carolyn Berry’s fin ances. During this investigation, the Board issued adm inistrative subpoen as to First NBC Bank; J efferson Financial Credit Union; Liberty Bank; Regions Bank; and Specialized Loan Servicing, LLC. 16 The subpoenas sought copies of records and other docum ents pertain ing to various financial accounts m aintained by Milton and Carolyn Berry. 17 On Novem ber 5, 20 15, the Board filed an application for sum m ary enforcem ent of the supplem ental order. 18 Berry did not file a response before the Fifth Circuit. 19 The Fifth Circuit issued an order and judgm ent on J anuary 6, 20 16, granting sum m ary enforcem ent of the Board’s supplem ental order. 20 On Decem ber 3, 20 15, Milton Berry filed the suit presently before this Court requesting that the Court relieve him of the Board’s order requiring that the Com panies and Milton and Carolyn Berry pay $ 223,891 in backpay and m ore than $ 43,0 0 0 in 13 See generally R. Doc. 10 -8 . R. Doc. 10 -8 at 26. 15 R. Doc. 10 -8 at 3. 16 See R. Doc. 10 -9. 17 R. Doc. 10 -9. 18 See N LRB v. M&B Servs., Inc., et al., No. 15-60 783 (5th Cir.). 19 See id. 20 Id. 14 3 interest. 21 In his com plaint, Berry also sought “an order preventing the National Labor Relations Board from obtaining access to [his] financial records.”22 Berry filed a m otion to quash the adm inistrative subpoenas seeking copies of Berry’s financial records and docum ents. 23 The Court denied the m otion to quash the subpoenas on Decem ber 23, 20 15. 24 On J anuary 7, 20 16, the Board filed a m otion to dism iss this m atter for lack of subject-m atter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6). 25 Berry has not filed an opposition, which was due J anuary 19, 20 16. 26 LAW AN D AN ALYSIS The party asserting subject-m atter jurisdiction bears the burden of proof for a m otion to dism iss under Rule 12(b)(1). 27 Indeed, “the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.”28 “A case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”29 The district court is “free to weigh the eviden ce and resolve factual disputes in order to satisfy itself that it has the power to hear the case.”30 “The standard of Rule 12(b)(1), ‘while sim ilar to the standard of Rule 12(b)(6), perm its 21 Id. 22 R. Doc. 1 at 2. R. Doc. 14. The m otion to quash was initially filed on Decem ber 3 but was deem ed deficient by the Court. See R. Doc. 3. 24 R. Doc. 15. 25 R. Doc. 17. 26 Id.; LR 7.5. 27 Davis v. United States, 597 F.3d 646, 649 (5th Cir. 20 0 9) (per curiam ); Ram m ing v. United States, 281 F.3d 158, 161 (5th Cir. 20 0 1). 28 Ram m ing, 281 F.3d at 161. 29 Sm ith v. Reg’l Transit Auth., 756 F.3d 340 , 347 (5th Cir. 20 14) (quoting Krim v . pcOrder.com , Inc., 40 2 F.3d 489, 494 (5th Cir.20 0 5)). 30 Id. (internal quotation m arks om itted). 23 4 the court to consider a broader range of m aterials in resolving the m otion.’”31 The Fifth Circuit has explained that courts m ay dism iss for lack of subject-m atter jurisdiction pursuant to Rule 12(b)(1) on any one of three different bases: (1) the com plaint alone; (2) the com plaint supplem ented by undisputed facts in the record; or (3) the com plaint supplem ented by undisputed facts plus the court’s resolution of disputed facts. 32 The National Labor Relations Act confers power on the Board “to prevent any person from engaging in any unfair labor practice . . . affecting com m erce.”33 The Act provides that “[a]ny person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought m ay obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business . . . .”34 Thus, the Act provides a course of judicial review of a final order issued by the Board in the courts of appeals rather than the district court. 35 “Under the decisions of the Suprem e Court and the courts of appeals it has long been established that the phrase ‘a final order of the Board[,]’ as used in this section, refers solely to an order of the Board either dism issing a com plain t in whole or in part or directing a rem edy for the unfair labor practices found.”36 31 Martin v. Halliburton, 618 F.3d 476, 481 n .5 (5th Cir. 20 10 ) (quotin g W illiam s v. W y nn e, 533 F.3d 360 , 365 n.2 (5th Cir. 20 0 8 )). 32 Ram m ing, 281 F.3d at 161; Clark v. Tarrant Cty ., Texas, 798 F.2d 736, 741 (5th Cir. 1986) (citing W illiam son v. Tucker, 645 F.2d 40 4, 413 (5th Cir. 1981), cert. denied, 454 U.S. 897 (1981)). 33 29 U.S.C. § 160 (a). 34 29 U.S.C. § 160 (f). 35 Id. See also M y ers v. Bethlehem Shipbuilding Corp., 30 3 U.S. 41, 48 (1938 ) (“The District Court is without jurisdiction to enjoin hearings because the power ‘to prevent any person from engagin g in any un fair practice affecting com m erce’ has been vested by Congress in the Board and the Circuit Court of Appeals, and Con gress has declared: ‘This power shall be exclusive, and shall not be affected by any other m eans of adjustm ent or prevention that has been or m ay be established by agreem ent, code, law, or otherwise.’” (citations om itted)); Bokat v. Tidew ater Equip. Co., 363 F.2d 667, 673 (5th Cir. 1966); Sanderson Farm s, Inc. v. N .L.R.B., No. 14-CV-126, 20 15 WL 1711618 , at *2 (S.D. Miss. Apr. 15, 20 15). 36 Shell Chem . Co. v. N . L. R. B., 495 F.2d 1116, 1120 (5th Cir. 1974). 5 Berry seeks relief from the Court that relieves him of the Board’s “dem and” for $ 223,8 91 in backpay and m ore than $ 43,0 0 0 in interest. 37 The Board issued a Decision and Order, finding that M&B Services, Inc., engaged in certain unfair labor practices and, thus, had violated the National Labor Relations Act. 38 In its Supplem ental Decision and Order, the Board concluded that the Com panies and Milton and Carolyn Berry personally were jointly and severally liable for the am ount of backpay due. 39 The relief Berry seeks clearly requires review of orders issued by the Board that “direct[] a rem edy for the unfair labor practices found”40 and that are thus final orders of the Board. Therefore, this Court lacks jurisdiction, and this m atter m ust be dism issed. 41 CON CLU SION For the foregoing reasons; IT IS ORD ERED that the Board’s m otion to dism iss for lack of subject-m atter is GRAN TED . This m atter is hereby D ISMISSED W ITH OU T PREJU D ICE. N e w Orle a n s , Lo u is ian a, th is 19 th d ay o f Ap ril, 2 0 16 . ____________ _______ __ _____ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 37 R. Doc. 1 at 2. R. Doc. 10 -2 at 1– 2. 39 R. Doc. 10 -8. 40 Shell, 495 F.2d at 1120 . 41 The Court need not consider whether the com plaint fails to state a claim pursuant to Rule 12(b)(6). 38 6
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