Carmack v. Massachusetts Bay Transportation Authority et al

MEMORANDUM in Support re MOTION to Dismiss Pursuant to F.R.Civ.P. 12

D. Mass.November 14, 2005

UNITED STATES DISTRICT COURT of the DISTRICT OF MASSACHUSETTS ____________________________________ ) JOSEPH T. CARMACK, ) Plaintiff, pro se ) v. ) C.A. No. 05-11430-PBS ) MASSACHUSETTS BAY ) TRANSPORTATION AUTHORITY ) and MASSACHUSETTS BAY ) COMMUTER RAILROAD COMPANY, ) Defendants. ) ____________________________________) MEMORANDUM IN SUPPORT OF MASSACHUSETTS BAY COMMUTER RAILROAD COMPANY’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(B)(6) NOW COMES the Massachusetts Bay Commuter Railroad Company (“MBCR”), a Defendant in the above-captioned matter, which moves to dismiss the Plaintiff’s complaint against it pursuant to F.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. As reasons therefore, MBCR states as follows. I. OVERVIEW In his complaint, the Plaintiff alleges that MBCR interfered with his (I) right to Free Speech guaranteed by the 1st Amendment to the United States Constitution; (II) Civil Rights guaranteed by the 14th Amendment to the United States Constitution; (III) Civil Rights guaranteed under 42 U.S.C. § 1983; (IV) rights under the Railway Labor Act, 45 U.S.C. § 1511; and (V) rights under the Massachusetts Civil Rights Act, M.G.L. c. 12, § 11. Simply stated, Counts I, II, and III must be dismissed because MBCR is not a governmental agency nor is it 1 In his complaint, Plaintiff cites to 45 U.S.C. § 151, commonly known as the Railway Labor Act, but erroneously terms it an “Unfair Labor Practice.” As MBCR’s collective bargaining activities are clearly governed by the Railway Labor Act, the Defendant has made the obvious correction. Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 1 of 11 2 acting under color of state law; Count IV must be dismissed because the Plaintiff was never an employee of MBCR and, consequently, cannot assert any rights under the Railway Labor Act against MBCR; and Count V should be dismissed because there is no diversity jurisdiction, Count V does not state a Federal question, and with the dismissal of Counts I through IV, there is no supplemental jurisdiction. II. FACTS2 Prior to the Fall of 2002, the Massachusetts Bay Transportation Authority (“MBTA”) had contracted with the National Railroad Passenger Corporation (“Amtrak”) to operate commuter rail services. [Pl. Compl. ¶ 9, 10.] 3 The Plaintiff was employed by Amtrak as an engineer on the MBTA in December 1996, and was a member of the Brotherhood of Locomotive Engineers (the "Union") since approximately March 1998. [Pl. Compl. ¶ 13, 14.] Plaintiff was terminated by Amtrak on or about May 13, 2002. [Attachment A, Pl. Second Am. Compl. Docket No. 03- 12488-PBS ¶ 12, 128, 331 & 363; Attachment B, Pl. Petition for Review Docket No. 05-10185- PBS ¶ 41.] Plaintiff appealed his termination, but his appeal was denied. [Attachment B, Pl. 2 In addition to the present Complaint, Plaintiff has also filed two related cases in this court: Docket No. 03-12488- PBS, and Docket No. 05-10185, relevant excerpts of which are attached hereto as Attachment A and Attachment B, respectively. Where necessary for a complete understanding of the Plaintiff’s claims as they relate to this Motion to Dismiss, MBCR cites to the Plaintiff’s allegations in the related cases. “For the sake of convenience and in the interest of the prompt disposition of litigation, a court may properly take judicial notice of pertinent data revealed by its own records relative to prior proceedings between the same parties.” Bander v. US, 161 Ct. Cl. 475, 478 (1963)(citing Dimmick v. Tompkins, 194 U.S. 540, 548 (1904). See also Grynberg v. Koch Gateway Pipeline Company, 390 F.3d 1276, 1279 n.1 (10th Cir. 2004) (quoting Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000): “[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.”); Town of Brookline v. Goldstein, 388 Mass. 443, 447 (1983)(“We may take judicial notice of papers filed in the prior actions brought by Goldstein against the town.”). In addition, facts subject to judicial notice may be considered without converting a motion to dismiss into a motion for summary judgment. See, e.g., Grynberg v. Koch Gateway Pipeline Company, 390 F.3d 1276, 1279 n.1 (2004). 3 Although MBCR disputes many of the factual assertions set forth in the Plaintiff’s Complaint, for purposes of this Motion only MBCR “must accept as true the well-pleaded factual allegations of the complaint . . . .” Muse v. Pane, 322 F. Supp. 2d 36, 38 (Mass. Dist. Ct. 2004). Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 2 of 11 3 Petition for Review Docket No. 05-10185-PBS ¶ 42, 44.] Subsequently, Amtrak lost the contract to manage the MBTA, and MBCR took over the management duties. [Pl. Compl. ¶ 9.] As part of the MBCR contract with the MBTA, MBCR was required to enter into a side agreement with the Union to employ all eligible engineers who worked on the MBTA’s commuter rail, who were employed by Amtrak in March 2002 and who were still employed by Amtrak at the time MBCR assumed management of the commuter rail. [Pl. Compl. ¶ 15.] Amtrak sent MBCR a list of such employees, and MBCR sent out conditional employment offers to the people on Amtrak's list. [Pl. Compl. ¶ 15.] Unfortunately, through inadvertence or an overabundance of caution, the Union included the Plaintiff on the list. [Pl. Compl. ¶ 15.] Consequently, MBCR sent the Plaintiff a conditional employment offer letter, and the Plaintiff signed it and returned it to MBCR, indicating he would accept the employment with MBCR. [Pl. Compl. ¶ 16.] MBCR subsequently discovered that the Plaintiff was not employed by Amtrak when the offer was made, and did not employ the Plaintiff. [Pl. Compl. ¶ 17.] Because the Plaintiff was not employed by Amtrak at the time the offer was made, he was not an “eligible employee” and did not qualify for employment with MBCR (employment with Amtrak being a prerequisite), so the conditional offer was void.4 A few days later, the Plaintiff went to North Station. [Pl. Compl. ¶ 20.] Although he was not employed by MBCR, the Plaintiff nonetheless claimed he was going to be the engineer on a specific train. Plaintiff also had written materials addressed to the attention of “All Loyal Union Employees of MBCR in Any Union!” [Pl. Compl. ¶ 24.] The written materials summarized the Plaintiff’s version of events regarding his termination from Amtrak and his failure to qualify for Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 3 of 11 4 employment with MBCR. [Pl. Compl. ¶ 24.] The Plaintiff was subsequently escorted off the property, barred from the premises, and informed that if he tried to access the property again, he would be arrested and charged with trespassing. [Pl. Compl. ¶ 22-25.] III. STANDARD OF REVIEW When considering a Rule 12(b)(6) motion, the Court must accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefore in the plaintiff=s favor and determine whether the complaint, so read, sets forth facts sufficient to justify recovery on any cognizable theory. Muse v. Pane, 322 F. Supp. 2d 36, 38 (Mass. Dist. Ct. 2004) (citing Martin v. Applied Cellular Tech., Inc., 284 F.3d 1, 6 (1st Cir. 2002)). However, the Court should not rely on "bald assertions, unsupportable conclusions, and 'opprobrious epithets."' Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987) (citing Snowden v. Hughes, 321 U.S. 1, 10 (1944)). See Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir. 1991). A 12(b)(6) motion should be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also The Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (the concept of notice pleading notwithstanding, a complaint will still be dismissed if it does not allege sufficient facts to state a claim on which relief can be granted). 4 In Docket No. 03-12488-PBS, Plaintiff attempted to name MBCR as an additional defendant in an attempt to claim a “right” to a job with MBCR. On July 25, 2005, Plaintiff’s Motion to Amend his complaint to add MBCR as a defendant was denied. Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 4 of 11 5 IV. ARGUMENT A. PLAINTIFF HAS MADE NO CLAIM AGAINST MBCR UPON WHICH RELIEF CAN BE GRANTED. 1. All Plaintiff’s Constitutional And Federal Civil Rights Claims Must Be Dismissed Because (a) MBCR Is Not A Governmental Agency And Is Not Acting Under Color Of State Law, and (b) MBCR Has A Right Under Massachusetts Law to Bar The Plaintiff From MBCR Property. a. All Plaintiff’s Constitutional And Federal Civil Rights Claims Must Be Dismissed Because MBCR Is Not A Governmental Agency And Is Not Acting Under Color Of State Law. 42 U.S.C. § 1983 provides that Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . . In a §1983 action, a plaintiff needs to show that the deprivation of his rights was caused by a person acting Aunder the color of state law@. Destek Group, Inc. v. State of New Hampshire Public Utilities Commission, 318 F.3d 32, 39 (1st Cir. 2003); Muse v. Pane, 322 F. Supp. 2d 36, 38 (Mass. Dist. Ct. 2004). Section 1983 actions rarely provide a cause of action against private entities. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996). Thus, persons victimized by the alleged tortuous conduct of private parties must ordinarily explore other avenues of redress. Id. In his complaint, Plaintiff acknowledges that MBCR is a “for profit corporation” [Pl. Compl. ¶ 4], and does not and cannot make any assertion that MBCR is acting “under the color of state law.” Consequently, Plaintiff’s Counts I, II, and III must be dismissed. Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 5 of 11 6 b. All Plaintiff’s Constitutional And Federal Civil Rights Claims Must Be Dismissed Because MBCR Has A Right Under Massachusetts Law to Bar The Plaintiff From MBCR Property. Mass. Gen. L. ch. 266, § 120 states, in relevant part that Whoever, without right enters or remains in or upon the dwelling house, buildings, boats or improved or enclosed land, wharf, or pier of another, . . . after having been forbidden so to do by any person who has lawful control of said premises, . . . shall be punished by a fine or not more than one hundred dollars or by imprisonment for not more than thirty days or both fine and imprisonment. . . . A person who is found committing such trespass may be arrested by a sheriff, deputy sheriff, constable or police officer . . . . In Commonwealth v. Noffke, the Supreme Judicial Court of Massachusetts (“SJC”) decided in that the Commonwealth has jurisdiction under Mass. Gen. L. ch. 266, § 120 to prosecute a non- employee union member for criminal trespass on private property. 376 Mass. 127, 379 N.E.2d 1086 (1978). In addition, the SJC decided that there was no violation of the First Amendment right to free speech, and no violation of Article 16 or 19 of the Massachusetts Constitution. The court reasoned that the First Amendment and Articles 16 and 19 protect the rights of free speech and assembly from abridgement by the government. Therefore guaranties of those articles do not extend to the conduct here, which occurred on the property of a private employer. Id. at 134, 1090. In finding that the Massachusetts criminal trespass statute was not preempted by the National Labor Relations Act, the SJC relied on the finding in Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, where the Supreme Court reasoned that it was not Congress= intent to absolutely deprive the States jurisdiction in cases where the issue is “...deeply rooted in local feeling and responsibility.” 436 U.S. 180, 183, 189 (1978). By logical analysis, MBCR’s right to prohibit Plaintiff’s access to its premises is not preempted by the Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 6 of 11 7 Railway Labor Act. Consequently, Counts I, II, and III of Plaintiff’s complaint must be dismissed. 2. Plaintiff’s Claim Under The Railway Labor Act Must Be Dismissed Because (a) The Railway Labor Act Only Applies To Employees, And The Plaintiff Was Never An Employee Of MBCR, And (b) Even If The Railway Labor Act Applied, MBCR Did Not Violate The Act By Barring Plaintiff From Its Premises. a. Plaintiff’s Claim Under The Railway Labor Act Must Be Dismissed Because The Railway Labor Act Only Applies To Employees, And The Plaintiff Was Never An Employee Of MBCR. 45 U.S.C. § 151(a) states two general purposes of the Railway Labor Act: (1) To avoid any interruption to commerce or to the operation of any carrier engaged therein, and (2) To forbid any limitation upon freedom of association among employees or any denial, as a condition of employment or otherwise, of the right of employees to join a labor organization. 45 U.S.C. § 151(a) (emphasis added). 45 U.S.C. § 152(Fourth) further provides that Ano carrier . . . shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . .@ 45 U.S.C. § 152(Fourth) (emphasis added). Plainly, and as the case below illustrates, the Railway Labor Act simply does not apply to non-employees. In Nelson v. Piedmont Aviation, Inc., the plaintiff, a pilot, sought employment with the defendant, Piedmont. 750 F.2d 1234, 1236 (4th Cir. 1984). Plaintiff was granted an interview but denied employment. Id. After Piedmont denied the plaintiff employment, he filed suit under the Railway Labor Act for damages and injunctive relief. Id. In denying the plaintiff’s motion, the court stated that neither the statutory language nor the legislative history of the Railway Labor Act extends to prospective employment applicants. Id. Furthermore, the court found that Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 7 of 11 8 the purpose of the statute is to establish the mechanics for collective bargaining between interstate carriers and their employees through freely selected representatives of both parties. Id. The court indicated that the only section of the Act which deals with prospective employees is §152(Fifth). Id. This section prohibits a carrier from requiring a person seeking employment to sign any agreement promising to join or not to join a labor organization. Id. This provision is obviously inapplicable to Plaintiff’s claim. As the Plaintiff acknowledges in his complaint [Pl. Compl. ¶ 17, 18], and as this Court well knows from the Plaintiff’s related litigation (Docket No. 03-12488-PBS and 05-10185- PBS), the Plaintiff is not, and was never, an “employee” of MBCR. Consequently, the Plaintiff can state no cause of action under the Railway Labor Act, and Count IV of his complaint should be dismissed. b. Even If The Railway Labor Act Applied, MBCR Did Not Violate The Act By Barring Plaintiff From Its Premises. Even if the Railway Labor Act applied to non-employees, case law does not permit trespass of non-employee union members onto private property. For example, in Imondi v. Bar Harbor Airways, the plaintiff brought suit against the defendant, Bar Harbor Airways (“BHA”), for violation of the Railway Labor Act when BHA arrested a non-employee union representative for trespass on private property. No. 81-0136B, 1983 WL 2036, at *1 (Dist. Me. June 1, 1983). In the past, the defendant had allowed the union representative to visit company property and meet with union member employees in the lunchroom. Id. During the plaintiff=s eighth visit, however, the defendant denied him access to the facility. Id. The plaintiff refused to leave, and the company called the local police who escorted him from the property and placed him under arrest. Id. Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 8 of 11 9 The plaintiff brought an action under the Railway Labor Act, and the court granted the defendant’s motion for summary judgment. Id. In its decision, the Imondi court recognized the breadth of 45 U.S.C. §152, which states that a carrier shall not interfere in any way with an employee=s union activities. Id. at *3. However, the court did not interpret the Act to include all actions taken by an employer that negatively impinges upon a union. Id. The court held that the defendant was well within its right to remove the plaintiff, as a non-employee would have no right to station himself in the middle of the work area because it would disrupt the workflow and endanger both him and the employees. Id. Noting that this was a case of first impression, the Imondi court continued its analysis by analogizing the Railway Labor Act to the National Labor Relations Act, which has been thoroughly reviewed by the Supreme Court. Id. at *4. According to the court, under the National Labor Relations Act, an employer generally has the right to bar non-employee union members from private property. Id. In order for the union to gain access, it must meet the burden and show that no other reasonable means of communicating its organizational message to the employees existed or that the employer=s access rules discriminate against union solicitation. Id. This the plaintiff could not do. Similarly, in NLRB v. Babcock & Wilcox Co., the Supreme Court held that the right of access of non-employee union organizers is governed by a different consideration than the right of employees to discuss organization among themselves. 351 U.S. 105, 113 (1956). In Babcock, the Court found only one exception that allowed non-employee union members access to a company=s private property. Id. According to the Court, a non-employee union member could access private property for the purposes of union business only if the employees are isolated from reasonable union efforts to communicate with them. Id. The Court defined “employees out Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 9 of 11 10 of reach” as ones who live at the plant. Id. As in the Imondi case, the plaintiff could not demonstrate that that no other reasonable means of communicating his message to the employees existed. In this matter, there is no indication or assertion that the Plaintiff could not communicate his message to the MBCR employees other than by accessing the boarding platforms at North Station and South Station. The MBCR employees obviously are not isolated and do not “live at the plant.” As MBCR was well within its rights to remove and bar Plaintiff from the premises, Count IV of Plaintiff’s complaint should be dismissed. 3. Plaintiff’s Claim Under The Massachusetts Civil Rights Act Must Be Dismissed Because There Is No Supplemental Jurisdiction. Plaintiff’s claim under the Massachusetts Civil Rights Act, Mass. Gen. L. ch. 12, § 11I, is asserted in this Federal Court pursuant to the Court’s supplemental jurisdiction as such claim relate to the Court’s original jurisdiction over Counts I through IV. See 28 U.S.C. § 1367(a); Pl. Compl. ¶ 7. However, pursuant to Section (c)(3) of 28 U.S.C. § 1367, United States District Courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if “the district court has dismissed all claims over which it has original jurisdiction.” As set forth above, this Court must dismiss Counts I through IV in their entirety. Consequently, MBCR respectfully requests that the Court decline to exercise supplemental jurisdiction over Count IV of the Plaintiff’s complaint, and dismiss Count IV as well. Case 1:05-cv-11430-PBS Document 7 Filed 11/14/2005 Page 10 of 11 11 V. CONCLUSION For the foregoing reasons, the Defendant Massachusetts Bay Commuter Railroad Company respectfully requests that the Plaintiff’s complaint be dismissed in its entirety. Respectfully Submitted, MASSACHUSETTS BAY COMMUTER RAILROAD COMPANY, By its attorneys, /s/ Robert K. Blaisdell _ Robert K. Blaisdell, BBO #568060 Donoghue, Barrett & Singal, P.C. One Beacon Street, Suite 1320 Boston, Massachusetts 02108 (617) 598-6700 Dated: November 14, 2005 CERTIFICATE OF COMPIANCE WITH LR 7.1(A)(2) I, Robert K. Blaisdell, hereby certify that I conferred with the pro se Plaintiff Joseph T. Carmack, on the 10th day of November, 2005, in a good faith attempt to resolve or narrow the foregoing issues. /s/ Robert K. Blaisdell _ Robert K. Blaisdell CERTIFICATE OF SERVICE I, Robert K. Blaisdell, hereby certify that I have caused copies of the foregoing document to be served upon by first class mail, postage prepaid to be served upon pro se Plaintiff Joseph T. Carmack, 592 Tremont Street, Boston, MA, this 14th day of November, 2005. /s/ Robert K. Blaisdell _ Robert K. 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