Cummings v. International Union Security Police And Fire Professionals of America (Spfpa), Local 555 et al

MOTION to Dismiss for Failure to State a Claim and for Lack of Subject-Matter Jurisdiction

D. Md.July 11, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ANNETTE CUMMINGS, Plaintiff, v. MVM, INC. et al., Defendants. : : : : : : : : : : Case No. 16-CV-1868, 16-CV-1869 Hon. Richard D. Bennett DEFENDANTS INTERNATIONAL UNION, SECURITY, POLICE AND FIRE PROFESSIONALS OF AMERICA (SPFPA) AND ITS LOCAL NO. 555, AND GORDON GREGORY, ESQ.’S MOTION TO DISMISS UNDER F.R.C.P. 12(b)(1) AND (6) Defendants International Union, Security, Police and Fire Professionals of America (SPFPA) and its Local No. 555, and Gordon Gregory, Esq. move this Honorable Court to dismiss Plaintiff’s Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6). In support of its Motion, Defendants state the following: 1. Plaintiff Annette Cummings is a former employee of MVM who was represented by Defendants International Union, Security, Police and Fire Professionals of America (SPFPA) and its Local 555. 2. On July 22, 2015, Cummings filed an unfair labor practice charge with Region 5 of the National Labor Relations Board (NLRB) against SPFPA, accusing the Case 1:16-cv-01868-RDB Document 12 Filed 07/11/16 Page 1 of 5 2 Union of failing to properly represent her in violation of Section 8(b)(1)(A) of the National Labor Relations Act (NLRA). Exhibit 1. 3. On October 27, 2015, the NLRB Regional Director dismissed the charge, finding that SPFPA did not violate the law in its representation of Cummings. Ex. 1. 4. Cummings appealed the Regional Director’s determination, and on November 16, 2015, the NLRB Office of Appeals denied her appeal, again finding that the SPFPA did not fail to properly represent her in violation of the NLRA. Ex. 1. 5. Cummings sought reconsideration of the NLRB Office of Appeals’ denial, and on December 17, 2015, the NLRB reaffirmed its denied her appeal. Ex. 1. 6. On January 4, 2016, Cummings filed suit against the NLRB in court, seeking judicial review of the NLRB’s decision. On June 28, 2016, the United States District Court for the District of Maryland dismissed her complaint, finding that it did not hold subject matter jurisdiction to review the NLRB’s decision to dismiss her charge. Case 1:16-cv-216-RDB. 7. On June 6, 2016, Plaintiff filed this action against Gordon Gregory, Esq., general counsel for International Union, Security, Police and Fire Professionals of America (SPFPA). 8. Although Plaintiff incorrectly listed Gordon Gregory, one of SPFPA’s attorneys, as a Defendant, she refers to SPFPA itself as a Defendant at other places in the Complaint. She listed Mr. Gregory’s Title as “International Union (SPFPA) Case 1:16-cv-01868-RDB Document 12 Filed 07/11/16 Page 2 of 5 3 and Local 555.” Complaint, p. 3. Plaintiff seems to have intended SPFPA (both the International and Local Union) to be the Defendant. 9. Plaintiff bases her claim against Defendants on diversity jurisdiction. Complaint, p. 4. 10. This Court lacks diversity jurisdiction over a claim made against SPFPA, an unincorporated labor union. United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, (1965). Plaintiff’s claim must therefore be dismissed under Fed.R.Civ.P. 12(b)(1). 11. Additionally, Plaintiff’s claim fails to state a claim upon which relief can be granted and must therefore be dismissed under Fed.R.Civ.P. 12(b)(6). 12. Finally, although Plaintiff fails to state a claim with the requisite specificity, any conceivable claim she could bring against SPFPA under Section 301 of the Labor Management Relations Act, (LMRA), 29 U.S.C. § 185, would be untimely under the applicable six-month statute of limitations and would therefore be dismissed under Fed.R.Civ.P. 12(b)(6). WHEREFORE, Defendants respectfully request that this Honorable Court dismiss Plaintiff’s claims against them their entirety. Case 1:16-cv-01868-RDB Document 12 Filed 07/11/16 Page 3 of 5 4 Respectfully Submitted, /s/ Peter J. Leff Peter J. Leff (Bar No. 15537) Mooney, Green, Saindon, Murphy & Welch, PC 1920 L St. NW, Ste. 400 Washington DC 20036 (202) 783-0010 (202) 783-6088 (fax) pleff@mooneygreen.com /s/ Matthew J. Clark Matthew J. Clark (Bar No. 805500) (admitted pro hac vice) Gregory, Moore, Jeakle & Brooks P.C. 65 Cadillac Square, Suite 3727 Detroit, MI. 48226-2893 (313) 964-5600 (313) 964-2125 matt@unionlaw.net DATED: July 11, 2016 Attorneys for Defendants Gordon Gregory and SPFPA Case 1:16-cv-01868-RDB Document 12 Filed 07/11/16 Page 4 of 5 5 CERTIFICATE OF SERVICE I hereby certify that on July 11, 2016, a copy of the foregoing motion and memorandum was filed electronically with the Clerk of the Court using the CM/ECF system. A copy was also sent by first class mail to Plaintiff’s address of record: Annette Cummings 6902 Brightway Place, Apt. H Gwnn Oak, MD 21207 /s/ Peter J. Leff Peter J. Leff /s/ Matthew J. Clark Matthew J. Clark DATED: July 11, 2016 Attorneys for Defendants Gordon Gregory and SPFPA Case 1:16-cv-01868-RDB Document 12 Filed 07/11/16 Page 5 of 5 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ANNETTE CUMMINGS, Plaintiff, v. MVM, INC. et al., Defendants. : : : : : : : : : : Case No. 16-CV-1868, 16-CV-1869 Hon. Richard D. Bennett MEMORANDUM IN SUPPORT OF DEFENDANTS INTERNATIONAL UNION, SECURITY, POLICE AND FIRE PROFESSIONALS OF AMERICA (SPFPA) AND ITS LOCAL NO. 555, AND GORDON GREGORY, ESQ.’S MOTION TO DISMISS UNDER F.R.C.P. 12(b)(1) AND (6) Defendants International Union, Security, Police and Fire Professionals of America (SPFPA) and its Local No. 555, and Gordon Gregory, Esq. submit the following Brief in support of their Motion to dismiss Plaintiff’s Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6). STATEMENT OF FACTS Plaintiff Annette Cummings is a former employee of MVM who was represented by Defendants International Union, Security, Police and Fire Professionals of America (SPFPA) and its Local 555. On July 22, 2015, Cummings filed an unfair labor practice charge with Region 5 of the National Labor Relations Board (NLRB) against SPFPA, accusing the Union of failing to properly represent Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 1 of 11 2 her in violation of Section 8(b)(1)(A) of the National Labor Relations Act (NLRA). Ex. 1. On October 27, 2015, the NLRB Regional Director dismissed the charge, finding that SPFPA did not violate the law in its representation of Cummings. Id. Cummings appealed the Regional Director’s determination, and on November 16, 2015, the NLRB Office of Appeals denied her appeal, again finding that the SPFPA did not fail to properly represent her in violation of the NLRA. Id. Cummings sought reconsideration of the NLRB Office of Appeals’ denial, and on December 17, 2015, the NLRB reaffirmed its denied her appeal. Id. On January 4, 2016, Cummings filed suit against the NLRB in court, seeking judicial review of the NLRB’s decision. On June 28, 2016, the United States District Court for the District of Maryland dismissed her complaint, finding that it did not hold subject matter jurisdiction to review the NLRB’s decision to dismiss her charge. Case 1:16-cv-216-RDB. On June 6, 2016, Plaintiff filed this action against Gordon Gregory, Esq., general counsel for International Union, Security, Police and Fire Professionals of America (SPFPA).1 Plaintiff bases her claim against Defendants on diversity jurisdiction. Complaint, p. 4. 1 Although Plaintiff incorrectly listed Gordon Gregory, one of SPFPA’s attorneys, as a Defendant, she refers to SPFPA itself as a Defendant at other places in the Complaint. She listed Mr. Gregory’s Title as “International Union (SPFPA) and Local 555.” Complaint, p. 3. Plaintiff seems to have intended the Defendant to be SPFPA (both the International and Local Union). Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 2 of 11 3 ARGUMENT LACK OF SUBJECT MATTER JURISDICTION Plaintiff bases her claim against Defendants on diversity jurisdiction. Complaint, p. 4. However, this Court lacks diversity jurisdiction over a claim made against SPFPA, an unincorporated labor union.2 United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, (1965). Plaintiff’s claim must therefore be dismissed under Fed.R.Civ.P. 12(b)(1). Diversity jurisdiction exists only in the limited circumstances Congress has set forth in 28 U.S.C. § 1332. Although this statute specifies certain conditions under which diversity jurisdiction exists in a claim involving a corporation, it says nothing about such unincorporated organizations as labor unions. In United Steelworkers of America v. R. H. Bouligny, Inc., the Supreme Court unanimously rejected the application of diversity jurisdiction to unincorporated labor unions. 382 U.S. 145. Noting the absence of any reference to unions in 28 U.S.C. § 1332, the Court noted that “[w]hether unincorporated labor unions ought to be assimilated to the status of corporations for diversity purposes, how such citizenship is to be determined, and what if any related rules ought to apply, are decisions which we believe [are] suited to the legislative and not the judicial branch.” Id. at 153. Instead, diversity 2 SPFPA (both the International and Local) and labor unions generally are unincorporated organizations. See e.g. Denver & R. G. W. R. Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 559 (1967). Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 3 of 11 4 jurisdiction does not exist, as the union’s “citizenship is that of each of its members.” Id. at 146; see also Bryant v. Brotherhood of Railway, Airline & S.S. Clerks, Freight Handlers, Express & Station Employees, 354 F. Supp. 9 (W.D. Va. 1972) (“It is established law that diversity jurisdiction cannot be invoked in the federal courts of any state of which the plaintiff is a citizen and the union has members since the union is also a citizen of such state for purposes of application of diversity jurisdiction under 28 U.S.C. § 1332.”) Because diversity jurisdiction does not exist between Plaintiff and SPFPA (both the International Union and Local 555), the entire Complaint lacks subject matter jurisdiction and must be dismissed, even against Gordon Gregory (who appears in any event to have been erroneously listed as a defendant). A claim based on diversity jurisdiction requires “complete diversity between all plaintiffs and all defendants.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). Plaintiff bases her claim of subject matter jurisdiction solely on diversity. Complaint, p. 4. She does not attempt to base jurisdiction on a federal question, nor does she cite a single law or legal theory that could conceivably establish subject matter jurisdiction. Therefore, federal question subject matter jurisdiction cannot exist in this Court of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 4 of 11 5 Also noteworthy is that Cummings’ Complaint against SPFPA is not the first jurisdictionally defective lawsuit she filed over this action. On January 4, 2016, Cummings filed suit against the NLRB, seeking judicial review of the NLRB’s decision to dismiss her unfair labor practice charge. Case 1:16-cv-216-RDB. On June 28, 2016, this honorable Court dismissed her complaint because it did not hold subject matter jurisdiction to review the NLRB’s decision. Cummings’ status as a pro se litigant does not exempt her from the requirements of subject matter jurisdiction, especially in light of her prior action dismissed on the same grounds. For these reasons, Plaintiff’s Complaint must be dismissed under Fed.R.Civ.P. 12(b)(1). FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Irrespective of the sufficient grounds to dismiss under Fed.R.Civ.P. 12(b)(1), Plaintiff’s Complaint would also require dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Standard of Review - Fed.R.Civ.P. 12(b)(6) To withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the allegations of a complaint “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (plaintiff must plead “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [his claim]”). Pleadings are no longer satisfied by “an unadorned the-defendant- Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 5 of 11 6 unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Twombly 550 U.S. at 555). Neither a “formulaic recitation of the elements of a cause of action” nor “naked assertions devoid of further factual enhancement” can withstand dismissal. Id. To meet this standard, a pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing Twombly, 550 U.S. at 570). “A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. Merely “conclusory” allegations are “not entitled to be assumed true.” Id. Even if a court decides that the factual allegations are entitled to an assumption of truth, the facts must also “plausibly suggest an entitlement to relief.” Id. at 680. Plaintiff’s Complaint Fails to Meet Basic Pleading Requirements A plaintiff must set forth in her complaint a “short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a). “Each allegation [in a pleading] must be simple, concise, and direct.” Fed.R.Civ.P. 8(d). Here, Plaintiff states merely the following in her “statement of the claim” (Complaint, p. 7): The employer and/ or labor union did not follow the progressive disciplinary rules and regulations policy. My rights was [sic] denied as well as violated. I fill [sic] that I was unfairly treated and totally discriminated against. Personally, I had no other alternative but to bring this case. Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 6 of 11 7 This statement is a perfect encapsulation of “an unadorned the-defendant- unlawfully-harmed me accusation” containing “naked assertions devoid of further factual enhancement” warranting dismissal under the Ashcroft v. Iqbal standard. 556 U.S. at 678. Plaintiff fails to describe with any cognizance how SPFPA failed to follow the progressive disciplinary policy, discriminated against her, or otherwise violated her rights, nor does she set forth any minimal semblance of a legal theory that would conceivably entitle her to any relief. In fact, Cummings has already gone through the process of filing a charge against SPFPA based on allegations that it violated its duty of fair representation toward her, and the NLRB - the administrative agency equipped with the expertise and resources to investigate such a claim - has concluded that SPFPA has not violated its duty of fair representation. Cummings has unsuccessfully appealed and sought reconsideration of the NLRB’s finding. Although the sufficiency of a pro se complaint is held to a less stringent standard than one drafted by an attorney, it must still allege “sufficient facts ‘to raise a right to relief above the speculative level’ and ‘to state a claim to relief that is plausible on its face.’” Green v. Beck, 539 F. App'x 78, 79 (4th Cir. 2013) (quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Where plaintiffs have failed to “nudge[] their claims across the line from conceivable Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 7 of 11 8 to plausible their complaint must be dismissed.” Twombly, 550 U.S. at 570. Plaintiff here fails to meet that standard, and her Complaint must be dismissed accordingly. Any Potential LMRA Section 301 Claim Plaintiff could have Asserted Would be Barred by the Statute of Limitations Generally, an employee alleging that a union breached its duty of fair representation has two legal courses of action: (1) file an unfair labor practice charge with the NLRB, alleging violation of Section 8(b)(1)(A) of the NLRA, and/ or (2) file a lawsuit alleging breach of the duty under Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185.3 These actions are not mutually exclusive; an employee can pursue both, and need not wait for the NLRB to fully investigate an unfair labor practice charge before filing an independent action under LMRA Section 301. Trent v. Bolger, 837 F.2d 657, 659, (4th Cir. Md. 1988). For this reason, the statute of limitations on a LMRA Section 301 action is not tolled by the filing of an unfair labor practice charge. Kolomick v. United Steelworkers of America, Dist. 8, 762 F.2d 354, 355-56 (4th Cir. Md. 1985). The statute of limitations for bringing a LMRA Section 301 claim against a union for breach of its duty of fair representation is six months.4 DelCostello v. Int'l 3 LMRA Section 301 preempts any state law tort claims Cummings might have brought against SPFPA related to its duty of fair representation. Childers v. Chesapeake & Potomac Tel. Co., 670 F. Supp. 624, 626-27 (D. Md. 1987); see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-13 (1985). 4 This mirrors the statute of limitations for filing an unfair labor practice charge under Section 10(b) of the NLRA Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 8 of 11 9 Bhd. of Teamsters, 462 U.S. 151, 164 (1983). Had Cummings wanted to file an independent LMRA Section 301 action against SPFPA in addition to the unfair labor practice charge she filed, she was required to do so within six months of the Union’s alleged wrongdoing. Although Cummings’ Complaint fails to note the dates of any alleged wrongdoing by SPFPA (or other significant details of her allegations), she mentions a series of actions in Exhibit 2 to her Complaint that occurred in June and July 2015. All of these actions occurred far beyond the applicable six month limitations to bring a LMRA Section 301 claim. Indeed, Cummings filed an unfair labor practice charge over what appears to be the same allegations on July 22, 2015. Ex. 1. The statute of limitations for a LMRA Section 301 claim against SPFPA has long since passed. Cummings fails to plead a LMRA Section 301 claim under the Twombly standard. But even if she did, her Complaint would still be dismissed as untimely under Fed.R.Civ.P. 12(b)(6).5 The Court’s only proper course of action, therefore, is dismissal. Anything less than dismissal - for example, affording Cummings the 5 Dismissal is proper under Fed.R.Civ.P. 12(b)(6) “when the face of the complaint clearly reveals the existence of a meritorious affirmative defense.” Brooks v. City of Winston-Salem, North Carolina, 85 F.3d 178, 181 (4th Cir. 1996); see also 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357, at 714 (3d ed. 2004) (“A complaint showing that the governing statute of limitations has run on the plaintiff's claim for relief is the most common situation in which the affirmative defense appears on the face of the pleading and provides a basis for a motion to dismiss under Rule 12(b)(6).”). Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 9 of 11 10 opportunity to amend her Complaint to include a more definite statement - could not correct the fatal defect of the untimeliness of any potential claim under LMRA Section 301. CONCLUSION WHEREFORE, Defendants respectfully request that this Honorable Court dismiss Plaintiff’s claims against them their entirety and with prejudice. Respectfully Submitted, /s/ Peter J. Leff Peter J. Leff (Bar No. 15537) Mooney, Green, Saindon, Murphy & Welch, PC 1920 L St. NW, Ste. 400 Washington DC 20036 (202) 783-0010 (202) 783-6088 (fax) pleff@mooneygreen.com /s/ Matthew J. Clark Matthew J. Clark (Bar No. 805500) (admitted pro hac vice) Gregory, Moore, Jeakle & Brooks P.C. 65 Cadillac Square, Suite 3727 Detroit, MI. 48226-2893 (313) 964-5600 (313) 964-2125 matt@unionlaw.net DATED: July 11, 2016 Attorneys for Defendants Gordon Gregory and SPFPA Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 10 of 11 11 CERTIFICATE OF SERVICE I hereby certify that on July 11, 2016, a copy of the foregoing motion and memorandum was filed electronically with the Clerk of the Court using the CM/ECF system. A copy was also sent by first class mail to Plaintiff’s address of record: Annette Cummings 6902 Brightway Place, Apt. H Gwnn Oak, MD 21207 /s/ Peter J. Leff Peter J. Leff (Bar No. 15537) /s/ Matthew J. Clark Matthew J. Clark (admitted pro hac vice) DATED: July 11, 2016 Attorneys for Defendants Gordon Gregory and SPFPA Case 1:16-cv-01868-RDB Document 12-1 Filed 07/11/16 Page 11 of 11 International Union Security, Police and Fire Professionals of America (SPFPA) Local 555 (MVM, Inc.) Case Number: 05-CB-156648 Location: Baltimore, MD Date Filed: 07/22/2015 Region Assigned: Region 05, Baltimore, Maryland Status: Closed on 11/17/2015 Reason Closed: Dismissal Non-adjusted Docket Activity 06/23/2016 US District Court Reply NLRB - GC 06/20/2016 US District Court Pleading -- Other Charging Party 06/20/2016 US District Court Opposition Charging Party 06/16/2016 US District Court Opposition NLRB - GC 06/14/2016 US District Court Opposition Charging Party 06/13/2016 US District Court Pleading -- Other Charging Party 06/13/2016 US District Court Pleading -- Other Charging Party 06/07/2016 US District Court Pleading -- Other Petitioner 06/06/2016 US District Court Opposition Charging Party 06/02/2016 US District Court Pleading -- Other Charging Party 06/01/2016 US District Court Opposition* NLRB - GC 05/19/2016 US District Court Pleading -- Other Charging Party 05/19/2016 US District Court Opposition Charging Party 02/19/2016 US District Court Opposition Charging Party 02/08/2016 Motion to Dismiss NLRB - GC Case 1:16-cv-01868-RDB Document 12-2 Filed 07/11/16 Page 1 of 2 02/08/2016 Motion to Dismiss NLRB - GC 02/08/2016 Motion to Dismiss NLRB - GC 01/21/2016 Response documents to other Motions or Petitions NLRB - GC 01/20/2016 US District Court Pleading -- Other* NLRB - GC 12/17/2015 Denial Letter* NLRB - GC 12/03/2015 Appeal Acknowledgment Letter* NLRB - GC 11/17/2015 Denial Letter NLRB - GC 11/03/2015 Appeal Acknowledgment Letter* NLRB - GC 10/27/2015 Dismissal Letter NLRB - GC 07/24/2015 Initial Letter to Charging Party* NLRB - GC 07/24/2015 Initial Letter to Employer in C Case* NLRB - GC 07/24/2015 Initial Letter to Charged Party* NLRB - GC 07/22/2015 Signed Charge Against Union* Charging Party Case 1:16-cv-01868-RDB Document 12-2 Filed 07/11/16 Page 2 of 2