Forsythe v. Local 32BJ, SEIU, No. 1:2010cv04609 - Document 21 (S.D.N.Y. 2011)
Court Description: MEMORANDUM AND OPINION re: 7 MOTION to Amend/Correct, filed by Earl Forsythe. In sum, defendants' motions to dismiss Forsythe III are granted, and plaintiff's motions to remand and amend Forsythe III are denied. Plaintiffs motion to dism iss Forsythe II is deemed withdrawn, and plaintiff's motion to compel in Forsythe II is denied as moot because the parties will proceed in the manner agreed to at the May 23, 2011 conference and set forth above. (Signed by Judge Naomi Reice Buchwald on 6/23/2011) Copies Mailed By Chambers. (ab)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------X EARL FORSYTHE, MEMORANDUM AND ORDER Plaintiff, - against - 10 Civ. 8557 (NRB) 10 Civ. 4609 (NRB) LOCAL 32BJ, SEIU, and ALMAGAMATED WARBASSE HOUSES, INC. Defendants. ----------------------------------X ----------------------------------X EARL FORSYTHE, Plaintiff, - against LOCAL 32BJ, SEIU Defendant. ----------------------------------X NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE Presently before the Court are five motions in two of three related cases brought by pro se plaintiff Earl Forsythe ( plaintiff or Forsythe ) relating to his termination by his former employer Amalgamated Warbasse Houses, Inc. ( Amalgamated ), and the subsequent decision of his union, Local 32BJ, SEIU ( Local 32BJ ), to not bring his case to arbitration. In the first case, Forsythe v. Amalgamated Warbasse Houses, Inc., 10 Civ. Amalgamated 2549 ( Forsythe discriminated national origin. I ), against him plaintiff alleges based his on that race and In the second case, Forsythe v. Local 32BJ, SEIU, 10 Civ. 4609 ( Forsythe II ), plaintiff alleges that Local 32BJ refused to go to arbitration which is a contractual obligation and thereby violated the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411 et seq. case, Forsythe Houses, v. 32BJ, SEIU 10 Inc., Local and Civ. 8557 ( Forsythe And in the third Amalgamated III ), Warbasse plaintiff similarly alleges that he was wrongfully terminated on July 23, 2009 by [his] former employer Amalgamated Warbasse Houses, Inc. and that Local 32BJ breached arbitration on his behalf. a contract by not going to See Amalgamated s Notice of Mot. to Dismiss, Ex. B.1 The five motions currently before this Court are: (1) plaintiff s motion to remand Forsythe III; (2) Amalgamated and Local 32BJ s motions to dismiss Forsythe III on the grounds that it is (a) time-barred and (b) duplicative of Forsythe I and Forsythe II; (3) plaintiff s motion to amend his complaint in Forsythe III violated the to add National a claim alleging Labor Relations that Act the defendants ( NLRA ); (4) plaintiff s motion to dismiss his own complaint in Forsythe II; and (5) plaintiff s motion to compel discovery in Forsythe II. 1 Unless otherwise noted, citations to court filings refer to Forsythe III. 2 We consider each motion in turn, beginning with the motions in Forsythe III. 2 Forsythe III I. Background Plaintiff originally filed the complaint in Forsythe III in the Supreme Court of the State of New York, County of New York on October 29, 2010, alleging that he was wrongfully terminated on July 23, 2009 by [his] former employer Amalgamated Warbasse Houses, Inc. and that Local 32BJ breached a contract by not going to arbitration on his behalf. See id. On November 12, 2010, Amalgamated filed a notice of removal on the grounds that this Court has original federal question jurisdiction seeks relief pursuant for to alleged 28 U.S.C. § violations 1331 of § because 301 of Management Relations Act ( LMRA ), 29 U.S.C. § 185. Local 32BJ consented to the removal. plaintiff the Labor Id., Ex. A. Id. On December 17, 2010, both defendants moved to dismiss the complaint on the grounds that it is (1) untimely and (2) duplicative of Forsythe I and Forsythe II. 2 Before we address the motions, we note that this Court held a conference on May 23, 2011 with all parties to the three related cases. Although the conference was requested by defendants to address issues that had arisen during plaintiff s deposition in Forsythe I and Forsythe II on May 3, 2011, the Court and the parties addressed a number of issues relating to the pending motions, as noted below. 3 On December 20, 2010, plaintiff filed a motion to remand this action to state court. Then, on February 9, 2011, plaintiff moved to amend his complaint to include an allegation that the defendants violated the NLRA, 29 U.S.C. § 151 et seq. by allowing employees to discipline employees. Pl. s Notice of Mot. to Amend, at 1. II. Motion to Remand A. Standard of Review [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants. . . . U.S.C. § 1441(a). 28 If, after removal, a plaintiff files a motion to remand, the party seeking to sustain the removal, not the party seeking remand, bears the burden of demonstrating that removal was proper. Hodges v. Demchuk, 866 F.Supp. 730, 732 (S.D.N.Y. also Union, 1994); Local see 919, AFL-CIO United & Commercial Workers CenterMark v. Food Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). light of the jurisdiction, congressional as well as intent the to Moreover, [i]n restrict importance of federal court preserving the independence of state governments, federal courts construe the removal statute removability. narrowly, resolving any doubts against Lupo v. Human Affairs Intern., Inc., 28 F.3d 269, 274 (2d Cir. 1994). 4 B. Hybrid/§ 301 Fair Representation Claims When an employee alleges that his union breached its duty of fair representation in a grievance or arbitration proceeding, he may bring a suit, referred to as a hybrid/§ 301 fair representation claim, against his union, his employer or both. Arnold v. 1199 SEIU, 2011 WL 1486080, at *1 (2d Cir. Apr. 20, 2011)(summary Trades order)(quoting Branch Local Union Carrion 638, 227 v. Enter. F.3d 29, Ass n, 33 Metal (2d Cir. 2000)(per curiam)). To succeed on such a claim, the employee must prove that (1) the employer breached the collective bargaining agreement (the CBA ) and (2) the union breached its duty of fair representation in redressing the grievance against the employer. Id. The hybrid/§ 301 fair representation claim refers to § 301 of the LMRA, which provides, in relevant part: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. The Supreme Court has described the pre-emptive force of § 301 expansively: [T]he pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and a labor organization. 5 Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23 (1983). See also Campbell v. Kane, 127, Kessler, P.C., 144 Fed. Appx. 130 (2d Cir. 2005)(summary order). C. Analysis It is apparent that plaintiff s claims are based on alleged violations of the collective bargaining agreement to which the defendants were parties. In paragraph four of the complaint, plaintiff alleges that [Local 32BJ] and Amalgamated . . . are in a written contract which gives me due process and arbitration if needed. In paragraph five, plaintiff alleges that he received a letter from Local 32BJ informing him that it would not be going to arbitration on his behalf. Plaintiff alleges that this is plaintiff breach of contract. that he was alleges Amalgamated paragraph a and seven, should have plaintiff gone alleges In wrongfully to that paragraph terminated arbitration. [b]y six, reason by And in of the facts and circumstances stated above, the defendants breached the contract. While plaintiff contends that his complaint only raises breach of contract claims that should be heard before a state court, the contract at issue is 6 the collective bargaining agreement and thus resolution of interpretation of that agreement. plaintiff s claims requires Indeed, if there were any question that plaintiff s claims require interpretation of the collective bargaining complaint specifically agreement, states plaintiff s that a proposed basis for amended federal jurisdiction is that this case alleges a Hybrid-violation of the CBA. . . . Pl s Am. Compl. at 2. Thus, plaintiff s complaint is most accurately viewed as a hybrid/§301 fair representation claim, and, as such, raises questions of federal law.3 To the extent that plaintiff still seeks to remand Forsythe III (even though, as discussed below, he subsequently filed a motion to amend his complaint before this Court), the motion to remand is denied. III. Motion to Dismiss A. Standard of Review When deciding a motion to dismiss for failure to state a claim pursuant to Federal Rule 12(b)(6), the Court must accept 3 See, e.g., Campbell v. Kane, Kessler, P.C., 2004 WL 1234048, at *3-4 (S.D.N.Y. June 2, 2004) ( Claims that an employer has failed to comply with a grievance settlement agreement that was reached pursuant to the grievance and arbitration provisions of a collective bargaining agreement and that the union has allegedly mishandled the dispute constitute hybrid 301/duty of fair representation claims governed by section 301 of the LMRA. ); Monumental Blunders, Inc. v. CBS Corp., 2000 WL 777893, at *3 (S.D.N.Y. June 15, 2000)( Section 301 preempts not only claims directly alleging that a party has violated a provision of the collective bargaining agreement but also those state-law actions that require interpretation or substantial analysis of the terms of a collective bargaining agreement. ); Morris v. Local 819, IBT, 1995 WL 293623, at *2 (S.D.N.Y. May 11, 1995)( [W]hen the resolution of plaintiff's claim depends upon an interpretation of a collective bargaining agreement, federal law completely preempts state law, and creates federal question jurisdiction over plaintiff's claim, however plaintiff may try to characterize his grievance. ). 7 as true all well-pleaded facts alleged in the complaint and draw Kassner v. 2nd all reasonable inferences in plaintiffs' favor. Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint must include enough facts to state a claim for relief that is plausible on its face. Bell At1antic Corp. v. Twombly, 550 U.S. 554, 570 (2007). Where a plaintiff has not nudged [his] claims across the line from [his] complaint must be dismissed. applies in all civil actions. conceivable Id. to plausible, This pleading standard Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009). B. Analysis In his complaint, plaintiff alleges that he was terminated by Amalgamated on July 23, 2009 (Compl. at ¶ 3), and then informed by Local 32BJ on August 12, 2009 that it would not pursue his grievance in arbitration (Compl. at ¶ 4).4 Because plaintiff did not file this action until October 29, 2010 more than a year after he was notified that Local 32BJ would not be taking his case to arbitration his claim is barred by the applicable six-month statute of limitations.5 As the Second Circuit recently stated: 4 Plaintiff received another letter from Local 32BJ s Joint Executive Board, dated October 9, 2009, stating that the board had adopted the recommendation of the Grievance Appeal Board regarding [plaintiff s] appeal of the Union s recommendation not to arbitrate [his complaint]. See Pl. s Am. Compl. (unnumbered exhibit). 5 We note that plaintiff did not submit an opposition to defendants motions to dismiss. Instead, plaintiff filed motions to remand and amend. 8 A hybrid § 301/fair representation claim is subject to a six-month statute of limitations, which governs the claims against both the employer and the union. Where a union member sues his union alleging a breach of the union's duty of fair representation, the cause of action accrues no later than the time when the union member[ ] knew or reasonably should have known that a breach has occurred. Arnold, 2011 WL 1486080, at *1 (2d Cir. Apr. 20, 2011) (internal quotation marks and citations omitted). Thus, under the applicable statute of limitations, plaintiff s complaint must be dismissed, as there can be no dispute that plaintiff knew or should have known of the alleged breach of the duty of fair representation when Local 32BJ informed him that it would not be taking his case to arbitration. See, e.g., id. at *1 (plaintiff s claim accrued on the date he received a letter from the union stating that it would not pursue the grievance to arbitration); Ramey v. Dist. 141, Int l Ass n of Machinists & Aerospace Workers, 378 F.3d 269, 278 (2d Cir. 2004) ( [I]n a suit alleging brought by a union breach members of the against duty of their fair union, representation the cause of action accrues no later than the time when the union members knew or reasonably should have known that a breach has occurred. ) (citation and internal quotation marks omitted)).6 6 Because plaintiff s claims are time-barred, we need not address defendants alternative argument that the complaint should be dismissed on the grounds that it is duplicative of Forsythe I and Forsythe II. We note, however, that nothing alleged in Forsythe III involves conduct that has taken place since the filing of plaintiff s first two cases before this Court. Indeed, the alleged conduct - Amalgamated s decision to terminate plaintiff and Local 9 IV. Motion To Amend Federal Rule of Civil Procedure 15(a) requires that leave to amend shall be freely given when justice so requires. However, [a] district court has discretion to deny leave for good reasons, including futility, bad faith, undue delay, or undue prejudice to the opposing party. McCarthy v. Dun Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). plaintiff s proposed amended complaint adds a Here, claim defendants violated the National Labor Relations Act. Notice of Mot. to Amend, at 1. Plaintiff & that Pl. s contends that defendants [p]ermitted employees to discipline employees (id.) and that union members . . . disciplining other employee[s]. can t assist management in Pl. s Am. Compl. at 4. Here, plaintiff s amended complaint would be futile because to the extent plaintiff raises a claim under § 8 of the NLRA (which addresses unfair labor practice (see 29 U.S.C. § 158)), this Court must defer to the jurisdiction of the National Labor Relations Board. As the Supreme Court has stated, [w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as federal courts must defer to the exclusive competence of the National Labor Relations Board . . . . San Diego 245 Building Trades Council v. Garmon, 359 U.S. 236, 32BJ s decision not to take plaintiff s claim to arbitration is the exact same as that at issue in Forsythe I and Forsythe II, both of which are presently in the discovery stage. 10 (1959). See also Husain v. Smarte Carte Inc., 2011 WL 1642591, at *3 (E.D.N.Y. May 5, 2011)( This court . . . lacks subject matter jurisdiction because the claims. ); 2959622, NLRB has Benjamin at *11 to v. entertain plaintiff's exclusive Health (E.D.N.Y. jurisdiction and Sept. [NLRA] Hospital claims over Corp., 2009 2009)(same).7 11, these WL Thus, plaintiff s motion to amend is denied. Forsythe II8 I. Plaintiff s Motion to Dismiss In his motion to remand Forsythe III, plaintiff also sought an order to dismiss his complaint in Forsythe II so that he can appeal and nothing to prevent do with confusion with arbitration. the At title-one the May which has 23, 2011 conference, plaintiff stated that he only sought the dismissal of Forsythe II because of defendants argument in Forsythe III that plaintiff had brought duplicative cases. However, plaintiff indicated that he would not seek the dismissal of Forsythe II if Forsythe III were dismissed. Thus, because we have dismissed Forsythe III, we now consider plaintiff s motion to dismiss his complaint in Forsythe II to be withdrawn. II. Plaintiff s Motion to Compel 7 In addition, although we do not have jurisdiction to address plaintiff s NLRA claim, we note for plaintiff s information that the NLRA does not prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization. 29 U.S.C. § 164(a). 8 Citations to court filings in the following sections refer to Forsythe II. 11 Plaintiff filed a motion to compel Local 32BJ to produce his grievance with the assault on me by defendant Pedro Zavala and a list of all union members at the Amalgamated Warbasse Houses, Inc. work site at 280 W. 5th St. Bklyn., NY 11224. Plaintiff further stated that he will unless [he] get[s] [his] discovery. Compel Discovery. for the refuse a deposition Pl. s Notice of Mot. to In response to plaintiff s discovery demand grievance concerning the alleged assault by Pedro Zavala, Local 32BJ stated that it has no responsive documents in its possession, custody or control. See Aff. of Katchen Locke in Support of Def. Local 32BJ s Response in Opp n to Pl. s Mot. to Compel ( Locke Aff. ), Ex. B. Both of plaintiff s discovery demands were discussed at the May 23, 2011 conference. With regard to plaintiff s request for a copy of his grievance, it was agreed that Local 32BJ will once again search its files plaintiff s demand for Amalgamated work site, for a it this list was document. of all union clarified that With regard members the at issue to the of whether individuals employed in a supervisory capacity were also union members plaintiff s (the issue discovery which demand) is was apparently already the disclosed basis in for Local 32BJ s answers to interrogatories, thus mooting the need for the production of a list. 12 While both issues raised in plaintiff s motion to compel were resolved at the court conference, we note that plaintiff did not raise any discovery dispute with defendants prior to the filing of the motion to compel, and thus failed to comply with both Federal Rule of Civil Procedure 37(a)(requiring that the motion to compel include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action ) and Local Civil Rule 37.2 (requiring that a party seeking to make a discovery motion first request an informal conference with the court).9 As we stated in our Order denying plaintiff s motion to compel in Forsythe I, plaintiff should file no further discovery motions without complying with the federal and local rules. CONCLUSION In sum, defendants motions to dismiss Forsythe III are granted, and plaintiff s motions to remand and amend Forsythe III are denied. Plaintiff s motion to dismiss Forsythe II is 9 A number of courts have held that the failure to comply with the procedural requirements for filing a motion to compel is sufficient grounds for denial of the motion. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 01 Civ. 1909 (KMW)(HBP), 2006 WL 2637836 (S.D.N.Y. Sept. 12, 2006)( Defendants[ ] papers do not indicate that defendants counsel made any attempt to resolve this dispute with plaintiffs counsel before making this motion. This deficiency alone is a sufficient ground for denying the motion. ); Avent v. Solfaro, 210 F.R.D. 91, 95 (S.D.N.Y. 2002) (motion to compel denied where pro se plaintiff did not satisfy meet and confer requirements under the Federal and Local Rules); Tri-Star Pictures, Inc. v. Unger, 171 F.R.D. 94, 99 (S.D.N.Y. 1997)( motion to compel is improper because the parties have not established that they have adequately conferred ). 13 deemed withdrawn, II and plaintiff s I motion to compel in Forsythe is denied as moot because the parties will proceed in the manner agreed to at the May 23, 2011 conference and set forth above. New York New York June 23, 2011 Dated: l UNITED STATES DISTRICT JUDGE Copies of the foregoing Memorandum and Order have been mailed on this date to the following: Pro se Plaintiff: Earl Forsythe 2931 Eighth Avenue Apt. 2E New York, NY 10039 Attorneys for Defendant Amalgamated Warbasse Houses, Inc.: Robert A. Sparer, Esq. Stefanie R. Munsky, Esq. Clifton, Budd & DeMaria, LLP 420 Lexington Avenue New York NY 10170 l Attorneys for Defendant SEIU Local 32BJ: Katchen Locke, Esq. Office of the General Counsel SEIU Local 32BJ 101 Avenue of the Americas 19th Floor New York, NY 10013-1991 I 14
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