GILLESPIE v. ACME MARKETS, INC. et al, No. 1:2014cv07779 - Document 13 (D.N.J. 2015)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 09/30/2015. (db, )
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GILLESPIE v. ACME MARKETS, INC. et al Doc. 13 1 U N ITED S TATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY DAWN GILLESPIE, Plaintiff, : ACME MARKETS, INC. and UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1360 , Defendant. Hon. J oseph H. Rodriguez : v. : Civil Action No. 14-7779 : OPIN ION : : These m atters are before the Court on Defendants’ separate Motions to Dism iss, both filed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has considered the subm issions of the parties, including the num erous attachm ents to the briefs. 1 For the reasons that follow, the Court is notifying the parties of its intent to convert the m otions to dism iss filed pursuant to Federal Rule of Civil Procedure 12(b) (6) to m otions for summ ary judgm ent pursuant to Federal Rule of Civil Procedure 56. Plaintiff Dawn Gillespie brings this action individually. The Com plaint alleges bare claim s of wrongful term ination and breach of contract against Defendants Acm e Markets, Inc. (“Acm e”) and United Food and Com m ercial Workers, Local 1360 (“Local 1 Plaintiff failed to timely file an opposition. The present motions were filed on January 5, 2015. Opposition was due on January 20, 2015. On February 5, 2015, counsel for Plaintiff filed a request for additional time to file opposition papers. Dkt. No. 8. Counsel was informed by telephone that Defendants’ consent was necessary for an extension. Counsel never filed an opposition. Then on June 29, 2015, the Court issued an Order requiring Plaintiff to show cause in writing why the motions should not be considered unopposed. Dkt. No. 9. The Court gave a response deadline of July 6, 2015. Plaintiff filed opposition on August 10, 2015. The one and a half page letter issued in opposition fails to adequately address the issues raised by the Defendants and attaches a letter from the arbitrator. 1 Dockets.Justia.com 2 1360 ”) (Count I) and a claim of breach of contract and breach of fiduciary duty again st Local 1360 (Count II) 2 . The Com plaint contains vague factual allegations, but relates to Gillespie’s discharge from Acm e as a full tim e cashier following allegations that she had stolen m oney from her cash register. 3 Gillespie is a m em ber of Local 1360 and the union filed a tim ely grievance on her behalf following the term ination. The parties went to arbitration and on Novem ber 2, 20 13, the arbitrator issued a written decision which awarded to Gillespie reinstatem ent without loss of seniority an d with full back pay. See Acm e, Ex. 1. It appears that Gillespie has not been reinstated because, according to Acm e, she has not presented proof that she is m edically fit to work. Acm e attaches a note, dated J anuary 14, 20 14, from Dr. Andrew Cogan that states that Gillespie was unable to return to work and that she has been unable to work since Septem ber, 20 12. In its brief, Acm e states that Gillespie never provided a letter which m edically clears her for work. Acm e also attaches court records from the Superior Court of New J ersey which detail the procedural history of this case and includes Plaintiff’s previous failed attem pts to pursue litigation in the state courts on the present claim s. 4 2 Count II is titled “Union’s Breach of Contract and Fiduciary Duty.” See Com plaint, ¶11. As such, the Court con strues this claim as against only Local 1360 . 3 “Although a district court m ay not consider m atters extraneous to the pleadings, a docum ent integral to or explicitly relied upon in the com plaint m ay be considered without converting the m otion to dism iss into one for sum m ary judgm ent.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.20 0 2) (internal quotation m arks and citations om itted) (em phasis deleted). In this case, the arbitration award is integral to and referenced in the Com plaint. As a result, the Court will look to the award to fram e the present issue and provide context to the issue, which is lacking in the Com plaint. 4 The Third Circuit has held that a court hearing a m otion to dism iss m ay take judicial notice of a judgm ent in another case but not the facts therein. S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410 , 413 (3d Cir. 1999); see also Brody v. Hankin, 145 F. App'x 768, 772 (3d Cir. 20 0 5). 2 3 Acm e claim s that the com plete arbitration rule announced in Union Switch & Signal Div. Am . Standard Inc. v. United Elec., Radio and Machine Workers of Am ., Local 610 , 90 0 F.2d 60 8 (3d Cir. 1990 ) requires that arbitration be fully exhausted before jurisdiction lays in the district court. Here, although styled as a breach of contract action, Acm e argues that Plaintiff’s com plaint seeks to im plem ent the arbitration award. Ostensibly, the breach relates to Acm e’s failure to reinstate Gillespie and com ply with the arbitrator’s award. The arbitrator, in his written decision, retained jurisdiction over the im plem entation of the rem edy. See Acm e Ex. 1. For this reason, and because this is Plaintiff’s second attem pt to bypass the arbitral process, Acm e seeks dism issal and an award of attorney’s fees. Acm e argues Gillespie’s claim should be presented to the arbitrator. Local 1360 m oves for dism issal on the ground that Plaintiff’s claim s are tim ebarred. Although styled as a breach of contract and a breach of fiduciary duty claim , Local 1360 argues that Gillespie’s claim s m ust be considered as a “hybrid Section 30 1/ Duty of Fair Representation Claim ” arising out of both Section 30 1 of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 185 and the judicially created doctrine of the union’s Duty of Fair Representation. Vaca v. Spies, 386 U.S. 171, 178 -9, n. 3 (1967). A claim that a union breached the duty of fair representation m ust be bought no later than six m onths from the date upon which the plaintiff knew or reasonably should have known of the union’s alleged breach. Hersh v. Allen Prods. Co., 789 F.2d 230 , 232 (3d Cir. 198 6). Under the facts of this case, Local 1360 argues that Plaintiff’s claim is tim ebarred. 3 4 In support, Local 1360 attaches two exhibits to its brief that m ay dem onstrate when Plaintiff knew or should have known about the union’s intention to no longer pursue Gillespie’s claim . Local 1360 also claim s that there are no facts that support tolling the lim itations period and, therefore, Gillespie’s claim is tim e-barred. A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a m otion to dism iss pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are taken into consideration. See Chester County Interm ediate Unit v. Pa. Blue Shield, 8 96 F.2d 8 0 8, 8 12 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). 351 (3d Cir. 20 0 5) (“[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a com plaint when deciding a m otion to dism iss.”)). The Defendants’ m otions ask the Court to consider docum ents outside of the pleadings. Specifically, Defendants attach, in ter alia, a doctor’s note, correspondence between the parties’ counsel, a letter from the arbitrator, and an affidavit from a Local 1360 representative. All of the docum ents are necessary to fram e the issues and len d support to the argum ents advanced in support of dism issal. In addition, Defendants’ m otions both ask the Court to resolve factual issues; i.e., when the statute of lim itations began to run on Plaintiff’s claim against Local 1360 and whether the arbitration has been exhausted. With the exception of the arbitrator’s decision, which m ay be considered as integral to the com plaint, consideration of docum ents outside of the pleadings on a m otion to dism iss is prescribed by Fed. R. Civ. P. 12 (b). As a result, the Court will convert the Defendants’ m otions to dism iss to m otions for sum m ary 4 5 judgm ent. See Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 517 (5th Cir. 1998) (“When m atters outside the pleadings are presented to and not excluded by the district court, the district court m ust convert a m otion to dism iss into a m otion for sum m ary judgm ent.”); Greer v. Sm ith, 20 0 3 WL 10 90 70 8, at *1 (3d Cir. Mar.10 , 20 0 3) (“the District Court considered m aterial outside of the pleadings and, therefore, should have converted the m otion for dism issal to a sum m ary judgm ent m otion, allowing the plaintiff an opportunity for appropriate discovery and a reasonable opportunity to present all m aterial m ade pertin ent to the m otion.”). In the interest of procedural fairness, the parties will have reasonable opportunity to present all m aterials relevant to a sum m ary judgm ent m otion on the issues contained herein. See Fed. R. Civ. P. 12(d). The m otions to dism iss m ust be denied. An appropriate Order shall issue. Dated: Septem ber 30 , 20 15 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 5
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