Inman v. Sidelines Sports Bar & Grill et al

BRIEF in Opposition

D.N.J.April 17, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TASIA C. INMAN, ADMINISTRATOR AD PROSEQUENDUM on behalf of the ESTATE OF JUDY JONES, Plaintiff, v. SIDELINES SPORTS BAR & RESTAURANT, PORT AUTHORITY OF NEW YORI( and NEW JERSEY, APM TERMINALS, INTERNATIONAL LONGSHOREMANS ASSOCIATION 1233, INTERNATIONAL LONGSHOREMANS ASSOCIATION 1235, VICTOR BELLO, and JOHN DOE 1-10 and/or ABC CORP 1-10 (fictitious names), Defendants. Civil Action No.: 16-cv-03495 (MCA) (LDW) MEMORANDUM OF LAW OF DEFENDANT APM TERMINALS ELIZABETH, LLC'S IN OPPOSITION TO DEFENDANTS INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO'S; LOCAL 1233, ILA, AFL- CIO'S; AND LOCAL 1235, ILA, AFL-CIO'S MOTION TO DISMISS CROSS- CLAIMS OF APM TERMINALS ELIZABETH, LLC PURSUANT TO RULE 465756.1 12(b)(1) John F. Karpousis, Esq. Michael D. Tucker, Esq. FREEHILL, HOGAN & MAHAR LLP 549 Summit Avenue Jersey City, NJ 07306-2701 973.623.5514 Attorneys for Defendants AP M Terminals Elizabeth, LLC Case 2:16-cv-03495-MCA-LDW Document 67 Filed 04/17/17 Page 1 of 9 PageID: 806 INTRODUCTION Defendant APM Terminals Elizabeth, LLC (improperly named as "APM Terminals") (hereinafter "APMT") submits herewith its Opposition to Defendants International Longshoremen's Association, AFL-CIO's; Local 1233, ILA, AFL-CIO's; and Local 1235, ILA, AFL-CIO's (collectively the "Union") Motion to Dismiss APMT's Crossclaims pursuant to Rule 12(b)(1). The Union's motion asserts that APMT's cross-claims must be dismissed because the cOUli lacks subject matter jurisdiction over the cross-claims insofar as APMT is party to a collective bargaining agreement with the Unions that contain a broad arbitration clause. The Union has moved to dismiss the cross-claims of APMT on the basis that APMT was a signatory to a collective bargaining agreement and thus its cross-claims are to be arbitrated pursuant to that agreement. However, as will be demonstrated herein, the collective bargaining agreement may not apply to the facts surrounding the instant lawsuit and, at the very least, a question of fact exist as to whether or not the Union's interpretation of the collective bargaining agreement is correct under the circumstances. STATEMENT OF FACTS At this juncture, there is no need to restate the facts of the matter herein. However, it bears noting that, as will be explained more fully below, it "facial" challenge to jurisdiction such as the one presented here is governed by rules similar to FRCP 12(b)( 6) motion that is, a motion can only be granted after the cOUli has considered all of the inferences and facts against the moving patiy. See, generally, IUE AFL-CIO Pension Fund v. Hermmann, 9 F.3d 1049 (2nd Cir. 1993) (quoting Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277 (3 rd Cir. 1993» 465756.1 2 Case 2:16-cv-03495-MCA-LDW Document 67 Filed 04/17/17 Page 2 of 9 PageID: 807 (holding that dismissal for lack of jurisdiction inappropriate); see also, Robinson v. Overseas Military Sales Corp., 21 FJd 502 (2nd Cir. 1994) (all allegations of non-moving party construed in its favor and taken as true). Further, it should be noted that any claim brought by Plaintiff against decedent's employer APMT is governed by federal law, to wit, 33 U.S.C. §901, et seq.l For reasons similarly explained by plaintiffs counsel in its opposition to the Union's motion to dismiss the Amended Complaint, the facts and transactions out of which this complaint arises are likely outside of any of the collective bargaining agreement terms. Here, APMT's cross-claims sound in the form of contribution and indemnity on the basis that if APMT were to be held liable, it could seek contribution against the Union for the Union's own share of negligence. Naturally, the scope and nature of the Union's negligence has yet to be determined because discovery has not been completed. What if, for example, the Union was held to be the primary tOlifeasor in this case under Plaintiffs theory of liability? Under concepts of common- law contribution and indemnity, the Union would have to pay its proportionate share of any verdict awarding damages to the plaintiff/Estate, over which APMT would asseli these cross- claims. Further, there is no evidence offered by the Union that the Collective Bargaining Agreement applies to this set of facts. The collective bargaining agreement's scope is defined as follows: 1 Because the decedent Judy Jones was a longshoreman, as that term is defined under the Longshore Harbor Workers' Compensation Act, 33 USC §901, ef. seq. ("LHWCA"), any claim brought by the decedent's estate against her employer will be barred that statute's exclusivity provision, which indicates that workers' 465756.1 3 Case 2:16-cv-03495-MCA-LDW Document 67 Filed 04/17/17 Page 3 of 9 PageID: 808 "Section 1. Scope Any grievance, dispute, complaint, or claim arising out of or relating to this Agreement shall be handled and disposed of in the manner hereinafter provided in this Article, and all of the parties hereto shall be bound by any decisions made in accordance therewith. A grievance under this Agreement must be brought within one hundred eighty (180) days of the date the grievance first arises." The Union purports to extend this scope to the cross claims of APMT as decedent's employer. However, a review of the agreement simply cannot suppOli such a position. The agreement refers to funding of pensions, employee benefits, employee seniority, working hours, workforce sizes, and other purely labor related issues. The cross claims asserted in this suit here sound in tort, not breach of contract, and do not involve in any way these types of labor and employment oriented disputes. (Interestingly, the Plaintiff, not the Union, submitted the relevant provisions regarding safety and the drug and alcohol policy located from the agreement. Notwithstanding same, those provisions do not affect the resolution of this motion: the Union is attempting to fit a round peg into a square hole here, and there is simply nothing about the scope of this agreement which touches upon APMT's legal right to seek common law tmi contribution and indemnity under the circumstances presently before this Honorable Court). LEGAL STANDARD A challenge to jurisdiction may be brought under Fed. R. Civ. P. 12(b)(1), on either a factual or facial basis. A facial challenge asselis that the complaint does not sufficiently allege grounds for subject matter jurisdiction. A cOUli considering such a facial challenge applies the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6). That is, a court must assume the truth of the allegations in the complaint and the documents it attaches or relies upon. Construing such allegations in the light most favorable to the plaintiff, the court may dismiss the complaint only if it neveliheless appears that the plaintiff will not be able to assert a colorable compensation benefits are the sole remedy available to the estate against APMT as her employer. See, 33 U.S.C. §905(a); see also N.J. Stat. 34: 15-36. 465756.1 4 Case 2:16-cv-03495-MCA-LDW Document 67 Filed 04/17/17 Page 4 of 9 PageID: 809 claim of subject matter jurisdiction. With respect to 12(b)(1) motions in particular, the plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right. CCA of Tenn. , LLC v. Perez, No. 15-3164,2015 U.S. Dist. LEXIS 169851, *14-15 (D. N.J. Dec. 18, 2015) (internal quotations omitted) (citing Mortensen v. First Fed. Sav. & Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977); In re Schering Plough Corp. IntronlTemodar Consumer Class Action, 678 F.3d 235, 243-44 (3d Cir. 2012); Constitution Party of Penn. v. Aichele, 757 F.3d 347, 358-59 (3d Cir. 2014)). "In considering a factual attack ... the Court need not cabin its inquiry to allegations in the complaint. Rather, the Court may 'consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction. '" Kennedy v. Am. Airlines Inc., No. 15-8058, 2016 U.S. Dist. LEXIS 94449, *8 (D. N.J. July 20,2016) (quoting Gotha v. Us., 115 F.3d 176, 179 (3d Cir. 1997)); see also, Mortensen, 549 F.2d at 891-92. THERE IS NO EVIDENCE THAT APMT IS CONTRACTUALLY BOUND TO ARBITRATE ITS CLAIMS AGAINST THE UNION It is clear that APMT is entitled to asseli a common law crosscIaim for contribution under these circumstances. Indeed, a plaintiff may be entitled to and obtain several judgments against different persons for the same obligation or liability so long as there is only one satisfaction or recovery. Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 NJ. 372 (1954). See also, Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 566 (1980) (interpreting the New Jersey Joint TOlifeasor's Contribution Act NJ.S.A. 2A:53A-l, et. seq. to hold that the Act established a right of contribution among joint tortfeasors); NJ.S.A. 2A:53A-2 (when the "injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors ... . "); NJ.S.A. 2A:53A-3. When that has occurred, a joint tOlifeasor can recover contribution from another tOlifeasor for any excess paid in satisfaction of a judgment "over his pro rata share .... " 465756.1 5 Case 2:16-cv-03495-MCA-LDW Document 67 Filed 04/17/17 Page 5 of 9 PageID: 810 N.J.S.A. 2A:53A-3. The statute defines "joint tortfeasors" to mean two or more persons jointly or severally "liable in tort for the same injury." NJ.S.A. 2A:53A-1. Thus, the statutory provision could apply to the Union in this context with respect to APMT's crossclaim for contribution. This theory of contribution is nothing new - indeed, the Third Circuit held that a manufacturer, strictly liable for damages caused by a defective product, was entitled to seek contribution from a "negligent purchaser or user, employer or otherwise .... " Chamberlain v. Carborundum Co., 485 F.2d 31, 34 (3d Cir. 1973). The only question left to decide therefore is whether the collective bargaining agreement applies to the issue at hand. The agreement calls for the arbitration of any claims or disputes arising out of the collective bargaining agreement. Therefore, in this context, the question is whether APMT's common law contribution crossclaim, which arises solely from an action for negligence for a personal injury, arises out of the CBA. The Union has not provided any proof that it does so. It is impOliant to note that the "trinity" of Supreme COUli cases cited by the Union were not decided within the context of either a Rule 12(b)(1) or 12(b)(6) motion. Moreover, at least one of the decisions involves a claim brought in part by a plaintiff under a collective bargaining agreement. See, United Steelworkers of America v. Lawson, 495 U.S. 362 (1990). The Union points to no cases in its brief that involve claims for personal injuries. The Battaglia, Derbin, and Brayman cases, which the Union seems to primarily rely on, involve neither personal injuries nor collective bargaining agreements. Neveliheless, the Union alleges that so long as "the allegations underlying the claims touch matters covered by [an arbitration clause in a contract], then those claims must be 465756.1 6 Case 2:16-cv-03495-MCA-LDW Document 67 Filed 04/17/17 Page 6 of 9 PageID: 811 arbitrated," pursuant to the Brayman case. Leaving aside all of the distinguishable features of Brayman, the relevant question facing the Court here is "does a case involving a Union member, whose criminal conduct led to the death of another Union member, and whose conduct gave rise to a civil lawsuit, arise under a collective bargaining agreement?" If the answer to this question is "perhaps," than the Union's motion must fail under Rule 12(b)(1) at this time. In this regard, the Court may allow a party asserting jurisdiction to conduct discovery to help establish jurisdictional facts. Villar v. Crowley Maritime Corp. 990 F.2d 1989 (5 th Cir. 1993); Metropolitan Life Ins. Co. v. Robertson Ceco Corp., 84 F.3d 560 (2nd Cir. 1996). Further, the Union cites Sharon Steel Corp. v. Jewell Coal & Coke Co., for the proposition that so long as the "claim of arbitrability was plausible, interpretation of the contract should have been passed on the arbitrator. 735 F.2d 775, 778 (3d Cir. 1984). In that case, however, it was clear that the force majeure issue was subject to arbitration and the issue before the Court was whether a drop in a commodity's market price could result in terminating a contractor due to commercial impracticability. Sharon Steel, 735 F. 2d at 778. Here, conversely, it is unclear from the four corners of the Union collective bargaining agreement whether or not claims for personal injury (and thus cross-claims for common-law contribution in a personal injury context) are contemplated by the CBA language. 2 The movants here have not supplied any affidavits from the drafters of this document, nor have they come forth with any factual evidence to support their interpretation of the contract. Thus, at the very least, some discovery should be taken on this discrete subj ect. 2 In fact, it is notable that the CBA makes no reference to either indemnity or contribution, so it is arguable that these types of claims were not contemplated by the drafters and are, therefore, not arbitrable. 465756.1 7 Case 2:16-cv-03495-MCA-LDW Document 67 Filed 04/17/17 Page 7 of 9 PageID: 812 This case does not involve a workplace grievance, overtime pay, or other matters normally associated with collective bargaining agreements. This matter is one for personal injury in a civil lawsuit context arising from potential improper training or enforcement of drug and alcohol policies promulgated by the Union according to the Plaintiff's estate. The collective bargaining agreement does not address the particular factual situation that arises herein. Therefore, at least, a question of fact exists within the context of this Rule 12(b)(1) motion sufficient to defeat same and sufficient to wa11'ant discovery of the drafters' intentions as to what types of claims would arise in this context and what claims would not. CONCLUSION Based on the foregoing, it is respectfully requested that, the cOUli deny the Union's Rule 12(b)( 1) motion, insofar as sufficient questions of fact exist to require, at a minimum, discovery associated with the types of claims contemplated under this collective bargaining agreement. Dated: April 17, 2017 465756.1 Respectfully submitted, ~-~-,r=-l:e-sr-';/----------- FREEHILL HOGAN & MAHAR, LLP 549 Summit Avenue Jersey City, New Jersey 07306-2701 973.623.5514 (P) I 973.623.3813 (f) karpousis@freehill.com tucker@freehill.com Attorneys for Defendant APMTerminals Elizabeth, LLC 8 Case 2:16-cv-03495-MCA-LDW Document 67 Filed 04/17/17 Page 8 of 9 PageID: 813 CERTIFICATE OF SERVICE I hereby certify that on the 1 i h day of April, 2017, a copy of the foregoing document was filed electronically with the Clerk of Comi using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the comi's electronic filing system. I also celiify that I have mailed by First Class mail this filing to the following: 465756.1 Georgina Giordano Pallitto, Esq. Pallitto Law, LLC 475 Bloomfield Avenue Newark, New Jersey 07107 Counsel for Defendant Victor Bela 9 Michael D. Tucker Case 2:16-cv-03495-MCA-LDW Document 67 Filed 04/17/17 Page 9 of 9 PageID: 814