Muhammad v. Community Coach, Inc. et al

REPLY BRIEF to Opposition to Motion

D.N.J.January 9, 2017

Timothy R. Hott, Esq. [6729] Law Offices of Timothy R. Hott, P.C. 100 Challenger Rd., Suite 402 Ridgefield Park, NJ 07660 Tel: (201) 994-0400 X11 Fax: (201) 994-0401 timhott@gmail.com UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY KALEEM MUHAMMAD, Plaintiff, v. Civil Action No. 2:16-cv-8344 (JLL)(JAD) COMMUNITY COACH, INC., COACH USA,INC., STAGECOACH GROUP, P.L.C., NEWEL SCOON, STANLEY FAIRCONNETUE, JAZMINE ESTACHIO, SMART/UNITED TRANSPORTATION UNION LOCAL 759, INTERNATIONAL ASSOCIATION OF SHEET METAL, AIR, RAIL AND TRANSPORTATION WORKERS SMART- TRANSPORTATION DIVISION, JOHN PREVISICH, CALVIN STUDIVANT, and ERIKA A. DIEHL-GIBBONS, Defendants. REPLY TO PLAINTIFF’S BRIEF IN OPPOSITION TO UNION DEFENDANTS’ MOTION TO DISMISS MOTION DATE: JANUARY 17, 2017 Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 1 of 20 PageID: 428 i TABLE OF CONTENTS Page(s) I. INTRODUCTION ............................................................................. 1 II. ARGUMENT..................................................................................... 1 A. All Plaintiff’s Claims against Union Defendants Comprise An Inadequate, Untimely Claim for Breach of The Duty of Fair Representation .................................................................. 2 B. Plaintiff’s Claims Are Also Preempted under the LMRA ............ 8 C. Plaintiff’s First Amendment and Section 1983 Claim Are Not Proper against Union Defendants ................................................. 9 D. Dismissal on Statute of Limitations Grounds Is On The Merits and Therefore Plaintiff’s Suit Is Barred on Res Judicata Grounds .......................................................................... 11 III. CONCLUSION ................................................................................. 13 Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 2 of 20 PageID: 429 ii TABLE OF AUTHORITIES Cases: Page(s) Air Line Pilots Ass’n, Intern. v. O’Neill, 499 U.S. 65, 71 (1991) ............................. 3 Arneault v. O'Toole, 864 F. Supp. 2d 361 (W.D. Pa. 2012), aff'd on other grounds, 513 Fed. Appx. 195 (3d Cir. 2013) .......................................................................... 10 Arnold v. Air Midwest, Inc., 93-2426-JWL, 1994 WL 247442 (D. Kan. May 24, 1994) .......................................................................................................................... 4 Arnold v. Air Midwest, Inc., 100 F.3d 857, 861 (10th Cir.1996) .......................... 6, 7 Atkinson v. Sinclair Refining Co, 370 U.S. 238, 249 (1962) ..................................... 6 Bell v. City of Philadelphia, 275 Fed. Appx. 157, 160 (3d Cir. 2008) .................... 11 Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 322 (3d Cir. 2004)............................ 2, 8 Breda v. Scott, 1 F.3d 908, 908-09 (9th Cir. 1993) ................................................... 7 Brown v. County of Atlantic, 07-1115, 2010 WL 2518540 (D.N.J. June 11, 2010) . 5 Capraro v. United Parcel Serv. Co., 993 F.2d 328 (3d Cir. 1993) ....................... 3, 9 Carino v. Stefan, 376 F.3d 156 (3d Cir. 2004) .......................................................... 7 Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483-84 (9th Cir. 1985) ............... 6 Childs v. Penn. Fed’n. Bhd. of Maint. Way Emp., 831 F.2d 429 (3d Cir. 1987) ....... 8 DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983) ........ 7 Elkadrawy v. Vanguard Group, Inc., 584 F.3d 169 (3d Cir. 2009) ................... 12, 13 Garland v. US Airways, Inc., CIVA 05-140, 2006 WL 3692591 (W.D. Pa. Dec. 12, 2006), aff'd, 270 Fed. Appx. 99 (3d Cir. 2008) ......................................................... 4 Haefner v. Lancaster County, Pa., 543 F. Supp. 264 (E.D. Pa. 1982), aff'd sub nom. Haefner v. County of Lancaster, Pennsylvania, 707 F.2d 1401 (3d Cir. 1983) ...... 13 Intl. Broth. of Elec. Workers v. Foust, 442 U.S. 42 (1979) ....................................... 5 Johnson v. United Food and Com. Workers, Intern. Union Loc. No. 23, 828 F.2d 961 (3d Cir. 1987) ...................................................................................................... 4 Johnson v. United Steelworkers of Am., 843 F. Supp. 944 (M.D. Pa. 1994), aff'd, 37 F.3d 1487 (3d Cir. 1994) ............................................................................................ 5 Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 3 of 20 PageID: 430 iii Johnson v. U.S. Postal Services, CIVA 06-CV-1275 DMC, 2007 WL 1946661 (D.N.J. June 29, 2007) ............................................................................................... 7 Jones v. Intl. Ass’n of Bridge Structural Ornamental and Reinforcing Iron Workers, 864 F. Supp. 2d 760, 770 (E.D. Wis. 2012)............................................................. 11 Lettis v. U.S. Postal Serv., 39 F. Supp. 2d 181 (E.D.N.Y. 1998) .............................. 6 Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988) ......................................................................................................................... 9 Montplaisir v. Leighton, 875 F.2d 1 (1st Cir.1989) ................................................... 6 Murphy v. Bd. of Educ. of Rochester City Sch. Dist., 273 F. Supp. 2d 292 (W.D.N.Y. 2003) ........................................................................................................................ 11 Peterson v. Air Line Pilots Ass'n, Intern., 759 F.2d 1161 (4th Cir. 1985) ................ 4 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ............................................. 12 Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016) ...................................................... 8 Shaw v. Brown, CIV.A. 13-2086 RMB, 2013 WL 5467072 (D.N.J. Sept. 30, 2013) ........................................................................................................................ 13 Vaca v. Sipes, 386 U.S. 171 (1967) ........................................................................... 2 Veggian v. Camden Bd. of Educ., 600 F. Supp. 2d 615 (D.N.J. 2009) ................ 5, 11 West v. Atkins, 487 U.S. 42 (1988) .......................................................................... 10 Williams v. U.S. Dept. of Veterans Affairs--New Jersey Healthcare System, CIV.A. 11-3719 DMC, 2011 WL 4352370 (D.N.J. Sept. 16, 2011) ..................................... 7 Zepperi-Lomanto v. Am. Postal Workers Union, AFL-CIO, 751 F.3d 482 (7th Cir. 2014) .......................................................................................................................... 5 Statutes: 29 U.S.C. § 185 (§ 301) ......................................................................................... 3, 8 42 U.S.C. § 1983 ............................................................................................ 9, 10, 11 42 U.S.C. § 1981 ...................................................................................................... 12 Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 4 of 20 PageID: 431 iv Other Authority: L.Civ.R. 7.1 ................................................................................................................ 1 Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 5 of 20 PageID: 432 1 Pursuant to L.Civ.R. 7.1 and Judge Linares’ Order (D.E. 15), Defendants the International Association of Sheet Metal, Air, Rail and Transportation Workers- Transportation Division (SMART-TD), together with its named officers and agents, as well as SMART-TD Local 759 (hereinafter collectively referred to as “Union Defendants”) submit the following as their Reply to Plaintiff’s Opposition to Union Defendants’ Motion to Dismiss. I. INTRODUCTION While Plaintiff attempts to keep his claims active in this Court, he offers no New Jersey law under which his claims could possibly exist that is not preempted by federal law, offers new theories that are not in his Complaint, and attempts to argue that dismissal of his state court case was not a decision on the merits. Each of these arguments is baseless and should be disregarded. II. ARGUMENT Plaintiff claims his case is not preempted by the LMRA nor res judicata, and further asserts that his claims against Union Defendants, which are for “union bad faith,” “fraud and misrepresentation,” and “intentional infliction of emotional distress,” are not the same as a duty of fair representation (DFR) claim. Such assertions are incorrect and contrary to the well-settled law in this area. Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 6 of 20 PageID: 433 2 A. All Plaintiff’s Claims against Union Defendants Comprise An Inadequate, Untimely Claim for Breach of The Duty of Fair Representation Plaintiff repeatedly asserts that Counts One, Seven, and Eight of his Complaint, for “Union Bad Faith Toward Member,” “Fraud and Misrepresentation,” and “Intentional Infliction of Emotional Distress,” respectively, somehow are separate and distinct from a DFR claim. This assertion is nonsensical, especially given that Plaintiff himself repeatedly contends that Union Defendants “breached the relevant duty of care” (Complaint ¶ 51) and that they “failed to represent Plaintiff with complete good faith and honesty of purpose” (D.E. 12). The United States Supreme Court has used that exact language when describing the duty of fair representation: The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, and was soon extended to unions certified under the N.L.R.A. Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. It is obvious that Owens’ complaint alleged a breach by the Union of a duty grounded in federal statutes, and that federal law therefore governs his cause of action. Vaca v. Sipes, 386 U.S. 171, 177 (1967) (internal citations omitted). See also Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 322 (3d Cir. 2004) (“The importance of uniform relations among employees, unions, and employers may call for Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 7 of 20 PageID: 434 3 preemption of state protections of federal rights, even where federal law does not impose an analogous duty. Appellants’ relief for any violations of their contractual or statutory rights must come in the manner prescribed by federal law.”) (internal citations omitted). Plaintiff uses the exact words to describe his claims as what the United States Supreme Court has stated constitutes the duty of fair representation. What Plaintiff is asserting is a breach of the DFR, and it is the only claim Plaintiff can assert against the Union Defendants here. Plaintiff asserts that a claim for bad faith or intentional infliction of emotional distress does not fall under the DFR. The Supreme Court and this Circuit, however, make clear that it does. Air Line Pilots Ass’n, Intern. v. O’Neill, 499 U.S. 65, 71 (1991) (“A union breaches the duty if its conduct is “‘arbitrary, discriminatory, or in bad faith.’”) (internal citation omitted). Suits for a tortious act, i.e. “a fraudulent scheme, outrageous conduct, [or] infliction of emotional distress,” are preempted by federal labor law. Capraro v. United Parcel Serv. Co., 993 F.2d 328, 333 (3d Cir. 1993). Articulated as far back as 1987, this Circuit stated: the district court concluded that the allegations of negligence and fraud were essentially claims that the unions and their officers had violated their duty of fair representation. We find no error in that characterization and reject the plaintiffs' attempt to cast the allegations as state tort claims not preempted by federal law. The duty of fair representation is imposed by federal statute, and federal law applies whether the section 301 suit is brought in federal or state court. Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 8 of 20 PageID: 435 4 The Supreme Court has made it clear that one cannot avoid federal preemption of alleged state law claims by artfully phrasing the language in the complaint. “It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.” Johnson v. United Food and Com. Workers, Intern. Union Loc. No. 23, 828 F.2d 961, 967 (3d Cir. 1987) (internal citations omitted). This Circuit is in agreement with the well-settled precedent. Garland v. US Airways, Inc., CIVA 05-140, 2006 WL 3692591, at *5–6 (W.D. Pa. Dec. 12, 2006), aff'd, 270 Fed. Appx. 99 (3d Cir. 2008) (dismissing counts against union defendants for state law claims of, among others, intentional and negligent infliction of emotional distress, because they were “related to [the union’s] representational functions and obligations” and were therefore “inextricably intertwined and embodied in” plaintiff's federal DFR claim); Arnold v. Air Midwest, Inc., 93-2426-JWL, 1994 WL 247442, at *6 (D. Kan. May 24, 1994) (noting the myriad cases where “state law claims of union misconduct” were preempted by federal law); Peterson v. Air Line Pilots Ass'n, Intern., 759 F.2d 1161, 1170–71 (4th Cir. 1985) (“In light of the significant overlap of the state and federal claims, it becomes apparent that Peterson seeks to pursue the state claims merely to take advantage of more liberal remedies. Since Peterson's state claims seek to vindicate rights largely secured by federal law, the potential conflict between remedies and administration are too great to permit the state claims to stand.”) Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 9 of 20 PageID: 436 5 Indeed, any separate or distinct punitive damages or damages for emotional distress from such a claim are disallowed as a matter of law, so it is difficult to imagine what damages arise from such a claim that are not covered in a DFR claim. See Intl. Broth. of Elec. Workers v. Foust, 442 U.S. 42, 52 (1979) (“Because general labor policy disfavors punishment, and the adverse consequences of punitive damages awards could be substantial, we hold that such damages may not be assessed against a union that breaches its duty of fair representation by failing properly to pursue a grievance.”); Zepperi-Lomanto v. Am. Postal Workers Union, AFL-CIO, 751 F.3d 482, 485 (7th Cir. 2014) (holding union’s alleged filing of a “retaliatory grievance” not enough to overcome Foust’s holding, and noting state-law claims for emotional distress are preempted by the LMRA in disputes involving the CBA); Veggian v. Camden Bd. of Educ., 600 F. Supp. 2d 615, 629 (D.N.J. 2009) (dismissing emotional distress claims where based upon union’s handling of grievance); Brown v. County of Atlantic, 07-1115, 2010 WL 2518540, at *3 (D.N.J. June 11, 2010) (dismissing emotional distress claims for lack of proof of damages). While Plaintiff attempts to recharacterize his claim by asserting he had a “right” to attorney representation, such is contrary to law. Johnson v. United Steelworkers of Am., 843 F. Supp. 944, 947 (M.D. Pa. 1994), aff'd, 37 F.3d 1487 (3d Cir. 1994) (“‘[N]o court has adopted the rule that employees are entitled to Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 10 of 20 PageID: 437 6 independently retained counsel in arbitration proceedings, or that the exclusion of such attorneys from arbitration violates the duty of fair representation.’ Federal law provides that unions are to be the exclusive bargaining representatives for workers in union shops and, as such, disfavors attorney involvement in grievance resolution.”), citing Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483-84 (9th Cir. 1985); Lettis v. U.S. Postal Serv., 39 F. Supp. 2d 181, 198 (E.D.N.Y. 1998) (“A grievant has no right to a private attorney, or to require a union to utilize a lawyer, at an arbitration.”). Similarly, Plaintiff offers no rebuttal to Union Defendants’ assertion that claims against Union officials individually named is improper and disallowed under federal law: Plaintiff's state claims against the individual defendants, Woerth and Johnson, fail for the additional reason that only the union and not its officers and employees can be liable for a breach of the duty of fair representation. See Atkinson v. Sinclair Refining Co, 370 U.S. 238, 249 (1962) (explaining that Congress intended for “the union as an entity” to be “the sole source of recovery for injury inflicted by it”). A plaintiff cannot circumvent this policy “by the simple device of suing union agents or members, whether in contract or in tort, or both, in a separate count or on a separate action for damages.” Id.; see also Montplaisir v. Leighton, 875 F.2d 1, 4 (1st Cir. 1989) (“With monotonous regularity, court after court has cited Atkinson to foreclose state-law claims, however inventively cloaked, against individuals acting as union representatives within the ambit of the collective bargaining process. This principle has become so embedded in our jurisprudence that it brooks no serious challenge.” (citations omitted)); Arnold v. Air Midwest, Inc., 100 F.3d 857, 861 (10th Cir. 1996). This rule applies equally to union attorneys such as Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 11 of 20 PageID: 438 7 Defendant Johnson who perform services as part of the collective bargaining process and precludes state-law malpractice claims against them. See, e.g., Breda v. Scott, 1 F.3d 908, 908-09 (9th Cir. 1993); Arnold, 100 F.3d at 862-63. Garland, 2006 WL 3692591, at *6; see also Carino v. Stefan, 376 F.3d 156, 160 (3d Cir. 2004) (“Our court has recognized that Atkinson provides individual union members and officers immunity from suit for union wrongs.”); Williams v. U.S. Dept. of Veterans Affairs--New Jersey Healthcare System, CIV.A. 11-3719 DMC, 2011 WL 4352370, at *5 (D.N.J. Sept. 16, 2011) (“[I]n a private sector labor dispute, state law claims against individuals acting as union representatives within the collective bargaining process are foreclosed.”); Johnson v. U.S. Postal Services, CIVA 06-CV-1275 DMC, 2007 WL 1946661, at *6 (D.N.J. June 29, 2007) (“Individual officers or members of a Union may not be held liable for breach of the duty of fair representation.”). Since all of Plaintiff’s claims against Union Defendants amount to a DFR claim, claims against individual union officers and attorneys must be dismissed. As for the remaining Union Defendants, Plaintiff fails to adequately state a claim that would rise to the level of a breach of DFR, and even if he did, as discussed in Union Defendants’ Memorandum in Support of Their Motion to Dismiss (D.E. 10- 2), such is untimely. A DFR case has an intentionally short six-month statute of limitations, which Plaintiff is well beyond since his adverse arbitration award issued on January 11, 2016 (Complaint ¶ 37). DelCostello v. International Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 12 of 20 PageID: 439 8 Brotherhood of Teamsters, 462 U.S. 151 (1983) (discussing at length why six months is an appropriate time limit for bringing a DFR claim); Bensel, 387 F.3d at 307 (“this Court has held that the employee's cause of action does not accrue until the arbitration board denies the employee's claim.”); Childs v. Penn. Fed’n. Bhd. of Maint. Way Emp., 831 F.2d 429, 434 (3d Cir. 1987) (“The court found that ‘where a duty of fair representation suit seeks to overturn an unfavorable arbitration award on the ground that the union committed errors in the arbitration proceedings, the claim accrues when the the [sic] employee learns of the arbitrator's award.’”) (internal citations omitted). As such, Plaintiff’s claims against Union Defendants should be dismissed. B. Plaintiff’s Claims Are Also Preempted under the LMRA In attempting to distinguish his claims from § 301 claims, Plaintiff cites a passage from a New Jersey Supreme Court case, Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016), which takes up over two pages. What Plaintiff fails to recognize, however, is the United States Supreme Court’s decision as quoted in that case holds that: [I]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor-law principles—necessarily uniform throughout the Nation—must be employed to resolve the dispute. Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 13 of 20 PageID: 440 9 Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405–06 (1988). Plaintiff’s Complaint cites repeatedly to the collective bargaining agreement at issue (Complaint ¶¶ 15, 18, 21). Indeed, later in his Memorandum he apparently alleges that it is the “employment manual” that somehow “alter[ed Plaintiff’s] at-will status by creating an implied contract between an employer and employee” (D.E. 12).1 Assuming he meant the collective-bargaining agreement, such indicates his claim is fully dependent on interpretation of that contract since it is where those rights originate. Lingle, 486 U.S. at 405 n.4; Capraro, 993 F.2d at 333 (“The claims that UPS undertook a fraudulent scheme to discharge Capraro for a fabricated reason, that Capraro’s discharge constituted ‘outrageous conduct,’ that UPS wrongfully inflicted emotional distress, and that UPS discharged Capraro negligently, all require interpretation of the collective bargaining agreement because each presents entirely different issues depending on whether UPS had the right to discharge Capraro without cause under the terms of the collective bargaining agreement.”). C. Plaintiff’s First Amendment and Section 1983 Claim Are Not Proper against Union Defendants Not mentioned in his Complaint, Plaintiff, for the first time now, appears to assert that his claims are “First Amendment retaliation claims” and that they 1 If Plaintiff is truly referencing an employment manual, that is a publication by the employer, not the Union, and no claim can exist under it against the Union Defendants. Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 14 of 20 PageID: 441 10 therefore “fall under the statute of limitations for a Section 1983 claim” (D.E. 12). While it is unclear what Plaintiff means by “First Amendment retaliation claim,” a Constitutional claim is not viable against a non-governmental entity. West v. Atkins, 487 U.S. 42, 49 (1988) (“To constitute state action, ‘the deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible,’ and ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.’”) (internal citations omitted). Similarly, 42 U.S.C. § 1983 provides for private citizens to recover for actions taken in deprivation of civil rights. It requires that these actions be taken under authority of state action. Arneault v. O'Toole, 864 F. Supp. 2d 361, 380–82 (W.D. Pa. 2012), aff'd on other grounds, 513 Fed. Appx. 195 (3d Cir. 2013) (“Section 1983 does not create substantive rights; instead, it provides a remedy for the violation of federal constitutional or statutory rights. To properly assert a claim under § 1983, the plaintiff must allege facts sufficient to show (1) the violation of a right secured by the Constitution or laws of the United States and (2) that the alleged deprivation was committed by a person acting under color of state law.”) (internal citations omitted). SMART-TD is not a government or state entity, as Plaintiff himself acknowledges in his Complaint paragraphs 8-12, and as such, the named individual Union Defendants’ actions as SMART-TD officers are not Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 15 of 20 PageID: 442 11 government or state actions. Murphy v. Bd. of Educ. of Rochester City Sch. Dist., 273 F. Supp. 2d 292, 324 (W.D.N.Y. 2003) (plaintiff’s labor union was “a private, non-governmental entity” and therefore there could be no § 1983 claims against it); Jones v. Intl. Ass'n of Bridge Structural Ornamental and Reinforcing Iron Workers, 864 F. Supp. 2d 760, 770 (E.D. Wis. 2012) (union’s district counsel was not a state actor). Furthermore, such a claim was never mentioned in his Complaint and therefore should be stricken or disregarded. Bell v. City of Philadelphia, 275 Fed. Appx. 157, 160 (3d Cir. 2008) (“Only in response to defendants' motion for summary judgment did Bell first raise this claim. A plaintiff ‘may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.’”) (internal citations omitted); Veggian v. Camden Bd. of Educ., 600 F. Supp. 2d 615, 628–29 (D.N.J. 2009) (“Plaintiff cannot later raise new claims in a response to a motion for summary judgment if she failed to plead them in her complaint.”) D. Dismissal on Statute of Limitations Grounds Is On The Merits and Therefore Plaintiff’s Suit Is Barred on Res Judicata Grounds Plaintiff’s argument against res judicata essentially amounts to claiming, without support, that the claims against Union Defendants could not have been litigated previously and that the dismissal of Plaintiff’s previous suit for being untimely is not on the merits. Each of these is equally unavailing. Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 16 of 20 PageID: 443 12 The allegations in Plaintiff’s Complaint all center around actions taken by Union Defendants up to, at the absolute latest, April 4, 2016. Plaintiff’s original suit was filed April 29, 2016 (D.E. 10-3). Plaintiff could have easily brought these claims at that time, given that the alleged actions underlying them were all complete by then and involve, by Plaintiff’s own admission, “similar facts and parties” (D.E. 12). Plaintiff was legally compelled to bring all related claims. Elkadrawy v. Vanguard Group, Inc., 584 F.3d 169, 173-74 (3d Cir. 2009) (“Even crediting Elkadrawy's attempt to distinguish his second set of facts as ‘new,’ it is beyond dispute that these allegations ‘could have been brought’ as part of his first complaint. Elkadrawy could have alleged the § 1981 claims in his first complaint, or amended that complaint to add these ‘new’ claims…The fact that several new and discrete discriminatory events are alleged does not compel a different result. A claim extinguished by res judicata ‘includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction or series of connected transactions, out of which the action arose.’”) (internal citations omitted). Plaintiff’s remaining argument that that court’s dismissal due to timeliness was somehow not a final judgment on the merits is equally as flawed. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (“The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations grounds the Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 17 of 20 PageID: 444 13 same way they treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits.”); Elkadrawy, 584 F.3d at 173 (noting the requirement that Title VII claims be brought within 90 days of receipt of EEOC right to sue letter is a “statute of limitations rather than a jurisdictional prerequisite to suit” and therefore dismissal of a claim on that basis counts as a decision “on the merits”); Shaw v. Brown, CIV.A. 13-2086 RMB, 2013 WL 5467072, at *2 (D.N.J. Sept. 30, 2013) (noting dismissal of first complaint’s claims as untimely as “fully adjudicated” and barred second complaint as untimely and pursuant to res judicata); Haefner v. Lancaster County, Pa., 543 F. Supp. 264, 266 (E.D. Pa. 1982), aff'd sub nom. Haefner v. County of Lancaster, Pennsylvania, 707 F.2d 1401 (3d Cir. 1983) (“dismissal of a suit as time-barred establishes a res judicata bar.”). As such, Plaintiff’s claims are clearly barred by the doctrine of res judicata. III. CONCLUSION Based on the foregoing, Union Defendants respectfully request this case be dismissed. Respectfully submitted, /s/ Timothy R. Hott Timothy R. Hott, Esq. [6729] Law Offices of Timothy R. Hott, P.C. Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 18 of 20 PageID: 445 14 100 Challenger Rd., Suite 402 Ridgefield Park, NJ 07660 Tel: (201) 994-0400 x11 Fax: (201) 994-0401 timhott@gmail.com Kevin C. Brodar General Counsel Erika A. Diehl-Gibbons Associate General Counsel SMART—Transportation Division 24950 Country Club Blvd. Ste. 340 North Olmsted, OH 44070 Tel: (216) 228-9400 Fax: (216) 228-0937 kbrodar@smart-union.org ediehl@smart-union.org CERTIFICATE OF SERVICE I certify that on this 9th day of January, 2017, I electronically filed the foregoing with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day via CM/ECF on the following: Matthew T. Rinaldo, Esq. Rinaldo & Rinaldo Associates, LLC 60 Walnut Avenue, Suite 150 Clark, NJ 07066 Attorney for Plaintiff Keith Reinfeld Stanley Goodman Fox Rothschild, Esqs. Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 19 of 20 PageID: 446 15 75 Eisenhower Parkway, Ste. 200 Roseland, NJ 07068 Attorneys for Defendants Community Coach, Inc., Coach USA, Inc., Stagecoach Group, P.L.C., Newel Scoon, Stanley Fairconnetue, and Jazmine Estachio /s/ Timothy R. Hott Timothy R. Hott, Esq. Case 2:16-cv-08344-JLL-JAD Document 16 Filed 01/09/17 Page 20 of 20 PageID: 447