Gachett v. Retail Wholesale Department Store Union
MEMORANDUM OPINION AND ORDER: it is hereby ORDERED that: (1) The Union's 15 Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. It is granted to the extent that Count Six of the 1 Complaint, which pleads claims against fictitious partie s, is DISMISSED WITH PREJUDICE. The Union's Motion is DENIED in all other respects; (2) Gachett shall file an amended complaint clarifying the precise nature of his federal claims on or before 4/29/2013, as further set out in order. Signed by Honorable Judge Mark E. Fuller on 3/29/2013. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
RETAIL WHOLESALE DEPARTMENT
CASE NO. 2:11-cv-398-MEF
(WO – Do Not Publish)
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant Retail Wholesale Department Store
Union’s (the “Union”) Motion to Dismiss (Doc. #15) for failure to state a claim upon which
relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons
set forth below, the Union’s Motion to Dismiss is due to be GRANTED IN PART and
DENIED IN PART.
Plaintiff Henry Gachett (“Gachett”) alleges that on or about April 17, 2009, he was
terminated from his employment at Wayne Farms. (Doc. #1-1, at 1.) Gachett alleges that
he “sought assistance from the Union to appeal his termination from Wayne Farms, as he was
a dues paying Union Member[,]” and that the Union refused to provide him with
representation. Gachett further alleges that the Union deducted dues from Gachett’s
paycheck each month, and that Gachett relied on the Union’s representations that his
membership was in effect at all times relevant to this lawsuit.
On April 11, 2011, Gachett filed this suit in the Circuit Court of Bullock County,
Alabama. Gachett’s state court lawsuit included claims against the Union for
misrepresentation, fraud, negligence/wantonness, breach of contract, and bad faith. (Doc.
#1-1, at 3–5.) The Union timely removed the case to this Court on May 25, 2011. (Doc. #1.)
The Union predicated its removal on federal question jurisdiction. See 28 U.S.C § 1331.
Specifically, the Union argued that three of Gachett’s five claims are governed by § 301 of
the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185, a federal statute which
preempts any state law claim that is “inextricably intertwined” with the terms of a collective
bargaining agreement (“CBA”). See Allis-Chalmers v. Lueck, 471 U.S. 202, 211 (1985).
Gachett timely filed a Motion to Remand. (Doc. #5.)
The Court denied Gachett’s Motion to Remand by Order dated January 17, 2012 (Doc.
#12), concluding that Counts One through Three of Gachett’s Complaint were preempted by
§ 301 of the LMRA. In so ruling, the Court found that Gachett’s state law claims for failing
to provide union representation, fraudulent failure to disclose denial of benefits, and
negligent or wanton misrepresentation concerning union benefits required interpretation of
the Union’s CBA with Gachett’s employer, Wayne Farms. The Court did not address
whether Counts Four through Six were preempted, because such issues were not raised
during the remand proceedings. The Court concluded that it would exercise supplemental
jurisdiction over any remaining state law claims pursuant to 28 U.S.C. § 1367. (Doc. #12,
In its Motion to Dismiss, the Union argues that all of Gachett’s claims for relief are
due to be dismissed because they are preempted by § 301 of the LMRA. The Union further
argues that all of Gachett’s claims are preempted by the judicially created cause of action
against a union for breach of its duty of fair representation and, therefore, are time-barred.
Ignoring the Court’s ruling on his Motion to Remand, Gachett responds that none of his
claims are preempted by federal law.1
II. MOTION TO DISMISS STANDARD
Rule 12(b)(6) provides that a defendant may defend against the allegations of a
complaint by persuading the Court that the complaint fails to state a claim upon which relief
can be granted. Such a contention necessarily implicates the requirements for pleading set
forth in Federal Rule of Civil Procedure 8(a)(2).
Under Rule 8, a pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The “pleading
standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
Gachett also argues that the Union should be estopped from asserting a preemption
defense because the Union previously denied that Gachett was a member of the union. Gachett
contends in his response brief that, in denying Gachett representation in appealing his termination,
the Union told him that his job as a forklift operator was not a covered union position and that he
was not an active union member. (Doc. #18, at 6.) The Court does not consider this fact in its
analysis of the motion to dismiss because Gachett failed to allege it in his Complaint and has not
sought leave to amend the Complaint. See Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999)
(“Filing a motion is the proper method to request leave to amend a complaint.”); Burger King Corp.
v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999) (“[A] trial court is not required sua sponte to grant
leave to amend prior to making its decision.”).
(2007) and Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading regime of a prior era, but it does
not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Ashcroft v. Iqbal, 129 S. Ct. at 1950.
Prior to the Supreme Court’s decision in Twombly, a motion to dismiss could only be
granted if a plaintiff could prove “no set of facts . . . which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45–46 (1957); see also Hishon v. King & Spalding, 467 U.S.
69, 73 (1984); Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986). Now, the standard
is somewhat different. As the Supreme Court has explained,
[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.”
A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that are
“merely consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’”
Ashcroft v. Iqbal, 129 S. Ct. at 1949; Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1268
(11th Cir. 2009).
A court seeking to apply this standard should begin the analysis of a complaint “by
identifying the allegations in the complaint that are not entitled to the assumption of truth.”
Ashcroft v. Iqbal, 129 S. Ct. at 1951. According to the Supreme Court, the allegations in the
complaint which merely state legal conclusions, constitute bald assertions devoid of further
factual enhancement, or set forth formulaic recitations of the elements of the claim are not
entitled to the assumption of the truth and should not be considered in the court’s analysis
of whether the complaint plausibly gives rise to entitlement to relief. Id. at 1949–51. Next,
the court is to consider the well-pleaded, nonconclusory factual allegations that are entitled
to the presumption of truth “to determine if they plausibly suggest an entitlement to relief.”
Id. at 1950–51. “A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate
only if it is apparent from the face of the complaint that the claim is time-barred.” Bhd. of
Locomotive Eng’rs and Trainmen Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX
Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008).
The Union claims that all of Gachett’s claims are preempted by § 301 of the LMRA
and the federal duty of fair representation and should be dismissed. Because the Court has
already ruled that Counts One through Three of Plaintiff’s Complaint are preempted by §
301, these claims will not be reanalyzed for § 301 preemption. Thus, the Court will turn to
the remainder of Plaintiff’s claims.
The issues before the Court are: (1) whether Gachett’s remaining claims are due to be
dismissed as preempted by § 301 of the LMRA and/or the federal duty of fair representation;
and (2) whether Gachett’s remaining claims, if they are preempted by federal law, are due
to be dismissed outright on preemption grounds, or as time-barred under the applicable
statute of limitations.
Section 301 Preemption
It is well established that a state law claim is preempted by § 301 of the LMRA unless
it exists independently of the CBA. See, e.g., Allis-Chalmers, 471 U.S. at 218; Int’l Bhd. of
Elec. Workers v. Hechler, 481 U.S. 851, 859 (1987); Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 408–09 (1988); United Steelworkers of Am. v. Rawson, 495 U.S. 362,
370–71 (1990). A state law claim is not sufficiently independent when it depends upon an
interpretation of the CBA. Allis-Chalmers, 471 U.S. at 218; see also Hechler, 481 U.S. at
859 n.3 (restating the rule set forth in Allis-Chalmers that, “when a state-law claim is
substantially dependent on analysis of a collective-bargaining agreement, a plaintiff may not
evade the pre-emptive force of § 301 of the LMRA by casting the suit as a state-law claim”);
Lingle, 486 U.S. at 408–09 (“[A]s long as the state-law claim can be resolved without
interpreting the [CBA] itself, the claim is ‘independent’ of the [CBA] for § 301 preemption
purposes.”). To determine whether a claim is independent, the Court must examine the
elements of the state law claim to see if any of those require interpretation of the CBA. See
Palmer v. Local 8285, 234 Fed. App’x 884, 887–88 (11th Cir. 2007) (“[W]e must look to the
elements of the state law claim to determine ‘whether evaluation of the tort claim is
inextricably intertwined with consideration of the terms of the labor contract.’” (quoting
Allis-Chalmers, 471 U.S. at 213)); Bartholomew v. AGL Res., Inc., 361 F.3d 133, 138 (11th
Cir. 2004); Jordan v. Equity Grp. Eufala Div. LLC, No. 2:08-cv-152-MEF, 2008 WL
4671781, at *2-3 (M.D. Ala. Oct. 21, 2008).
Application to Plaintiff’s Claims
As an initial matter, the Court does not find it necessary to analyze all of Plaintiff’s
claims for § 301 preemption. Plaintiff alleges a state law claim of bad faith. (Compl., Count
Five, Doc. #1-1.) However, Alabama does not recognize the tort of bad faith except in the
insurance contract context. Nat’l Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala.
1982) (stating that the first element of the tort of bad faith is “an insurance contract between
the parties and a breach thereof by the defendant”). Plaintiff does not allege the existence
of an insurance contract in his Complaint, so this claim, on its face, fails to state the most
essential elements of an adequate state law claim that could be analyzed for preemption §
301. Allis-Chalmers, 471 U.S. at 213 (explaining that a court must look to the elements of
the state law claim to determine “whether evaluation of the tort claim is inextricably
intertwined with consideration of the terms of the labor contract”). However, to the extent
that this claim can be construed as alleging a breach of the Union’s federal duty to represent
Gachett fairly, the Court will treat it as such.2
Furthermore, Count Six of Plaintiff’s Complaint is due to be dismissed because it
merely realleges the same claims set forth in previous Counts against fictitious defendants.
Because there is no fictitious party practice in federal courts, this claim must be dismissed
outright, irrespective of preemption. See, e.g., Fed. R. Civ. P. 10(a); New v. Sports &
Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th Cir. 1997); Harris v. Palm Harbor Homes,
Inc., 198 F. Supp. 2d 1303, 1304 n.6 (M.D. Ala. 2002); Edwards v. Ala. Dep’t of Corr., 81
F. Supp. 2d 1242, 1257 (M.D. Ala. 2000).
Counts Four and Five of Plaintiff’s Complaint will be analyzed for preemption pursuant
to the federal duty of fair representation later in this opinion.
Thus, the only claim that the Court is left to analyze for § 301 preemption is Gachett’s
breach of contract claim in Count Four. (Doc. #1-1, Count Four, ¶¶ 25–27.) As discussed
above, where a claim would require interpretation of a CBA, that claim is preempted under
§ 301 of the LMRA. The Court finds that there is no way of determining whether Gachett
should prevail on his breach of contract claim without first determining what obligations the
Union owed Gachett pursuant to the CBA between Wayne Farms and the Union.
In making this determination, the Court first examines the elements of a breach of
contract claim under state law to determine whether an “evaluation of the [contract] claim
is inextricably intertwined with consideration of the terms of the labor contract.” AllisChalmers, 471 U.S. at 213. To recover on a breach of contract claim in Alabama, a plaintiff
must prove four elements: “(1) the existence of a valid contract binding upon the parties in
the action, (2) his own performance under the contract, (3) the defendant’s non-performance,
and (4) damages.” Employees’ Benefit Ass’n v. Grissett, 732 So. 2d 968, 975 (Ala. 1998).
The Union argues that Gachett’s breach of contract claim requires the Court to
interpret the CBA to determine what representation it owed Gachett as a dues-paying union
member. Gachett argues in response that the contractual relationship at issue is not
determined by the CBA, but is established by Gachett’s payment of dues to the Union from
each paycheck for over twenty years. Gachett further argues that interpretation of the CBA
is not necessary to measure the adequacy of the Union’s actions with respect to his
termination appeal, because the Union completely failed to act on his behalf in his
The Court is not convinced by any of Gachett’s arguments. Any obligation that the
Union owed Gachett, a dues-paying member of the Union, is derived from the Union’s CBA
with Wayne Farms. Thus, a determination of whether the Union had a contractual obligation
to represent Gachett in the appeal of his termination and whether the Union failed to perform
that obligation would require interpreting the terms of the CBA. For this reason, the Court
concludes that Gachett’s breach of contract claim is preempted by § 301 of the LMRA.
Preemption and the Duty of Fair Representation
The Union also argues that Gachett’s state law claims are completely preempted by
the federal duty of fair representation. The duty of fair representation is implied from a
union’s statutory authority under § 9(a) of the National Labor Relations Act (“NLRA”), 29
U.S.C. § 159(a), to act as the exclusive bargaining agent with the employer on behalf of the
members of the bargaining unit it represents.4 Chauffeurs, Teamsters and Helpers, Local No.
Gachett contends in response to the motion to dismiss that, when he sought union
representation to appeal his termination, the Union told him that his job as a forklift operator was
not a covered union position and that he was not an active union member. (Doc. #18, at 6.) The
Court does not consider this fact in its analysis of the motion to dismiss because Gachett failed to
plead this fact in his Complaint and has not sought properly sought leave to amend his Complaint.
See Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999) (“Filing a motion is the proper method to
request leave to amend a complaint.”); Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir.
1999) (“[A] trial court is not required sua sponte to grant leave to amend prior to making its
Section 9(a) of the NLRA provides, in pertinent part:
Representatives designated or selected for the purposes of collective bargaining by
391 v. Terry, 494 U.S. 558, 563 (1990). In describing the duty, the Supreme Court has
explained that “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.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). Pursuant
to this duty, “a union must represent fairly the interests of all bargaining-unit members during
the negotiation, administration, and enforcement of collective-bargaining agreements.” Int’l
Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 47 (1979).
A union breaches the duty of fair representation when it treats a member of the
collective bargaining unit in a manner that is “arbitrary, discriminatory, or in bad faith.”
Vaca, 386 U.S. at 190; see also Air Line Pilots v. O’Neill, 499 U.S. 65, 67 (1991)
(reaffirming the three-part standard); Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44
(1998) (same). While a union may not arbitrarily avoid an employee’s meritorious grievance
with his employer, “an individual employee [does not have] an absolute right to have his
grievance taken to arbitration regardless of the provisions of the applicable collective
bargaining agreement.” Vaca, 386 U.S. at 191.
The Eleventh Circuit has not yet spoken on the extent to which the federal duty of fair
the majority of the employees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of employment, or other
conditions of employment . . . .”
29 U.S.C. § 159(a).
representation preempts state law. But the First Circuit has held that the duty of fair
representation completely preempts any state law claims that challenge a union’s
representational activities. BIW Deceived v. Local S6, 132 F.3d 824, 830 (1st Cir. 1997).
The Fifth Circuit has similarly explained that, under the Supreme Court’s holding in Vaca,
the duty of fair representation completely preempts state law “because of the congressional
intent that federal law, developed to further the goals of the NLRA, entirely govern the duties
which an NLRA collective bargaining representative owes . . . to the workers it represents
in that capacity.” Richardson v. United Steelworkers of Am., 864 F.2d 1162, 1169–70 (5th.
Cir. 1989). Several district courts have followed the First and Fifth Circuit’s approaches to
this issue. See, e.g., Zuckerman v. Volume Servs. Am., Inc., 304 F. Supp. 2d 365, 373
(E.D.N.Y. 2004); Smith v. Local Union No. 110, Int’l Bhd. of Elec. Workers, 681 F. Supp.
2d 995, 1002 (D. Minn. 2010); Rodgers v. Callaway Golf Operations, Inc., 796 F. Supp. 2d
232, 239 (D. Mass. 2011).
Plaintiff’s Claims Are Preempted by the Duty of Fair Representation
The Union argues that all of Gachett’s state law claims amount to a claim that the
Union breached its duty to fairly represent him in his employment dispute with Wayne Farms
and, therefore, are preempted by federal law. The Court agrees. Counts One through Five,
as alleged, clearly implicate the federal duty of fair representation. Gachett alleges that the
Union failed to provide him union representation and benefits; failed to disclose to him that
they would not provide him the representation even if he paid union dues; made
misrepresentations and concealed material facts from him regarding the union benefits for
which he was paying dues; breached its contract to provide him representation; and acted in
bad faith. All of these allegations, taken together, amount to a claim that the Union acted
arbitrarily or in bad faith when it failed to provide Gachett representation, which is the
essence of a duty of fair representation claim.5 Vaca, 386 at 190. Therefore, the Court
concludes that Counts One through Five of Gachett’s Complaint are also preempted by the
federal duty of fair representation.
Dismissal on Preemption Grounds
Even though Gachett’s Complaint only alleges claims against the Union, not Wayne
Farms, the Court construes the claims as “hybrid” § 301/fair representation claims. See
Bartholomew v. AGL Res., Inc., 361 F.3d 1333, 1342 (11th Cir. 2004) (holding that the
district court did not err in characterizing plaintiff’s state law claims as hybrid § 301/fair
representation claims even though plaintiff’s complaint only named employer as defendant).
The Union argues that the Court should dismiss Gachett’s claims simply because they
are preempted by § 301 and the duty of fair representation. Under Eleventh Circuit
precedent, claims that are preempted by the LMRA should either be dismissed as preempted
or treated as § 301 claims. Bartholomew, 361 F.3d at 1342 (citing Allis, 471 U.S. at 220);
see also Moon v. Goodyear Tire & Rubber Co., No. 4:12-CV-0065-KOB, 2012 WL
4479249, at *4–5 (N.D. Ala. Sept. 25, 2012). The Union offers no further argument as to
why the Court should dismiss Gachett’s claims outright rather than treating them as § 301
Nowhere in the Complaint (Doc. #1-1) does Gachett allege that the Union’s conduct was
“hybrid” claims. Thus, in fairness, the Court construes Gachett’s state law claims as a § 301
claim for a breach of the collective bargaining agreement between Wayne Farms and the
Union, 29 U.S.C. § 185(a), and as a claim for the Union’s breach of its duty to represent
Gachett fairly in the appeal of his termination. Chauffeurs, 494 U.S. at 563; Vaca, 386 U.S.
The Union also argues that Gachett’s claims, when construed as federal claims, are
due to be dismissed as time-barred. The applicable statute of limitations for a “hybrid” claim
like Gachett’s is the six-month limitations period borrowed from § 10(b) of the NLRA.
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169 (1983); Bartholomew, 361 F.3d at
This six-month period began running when the Union refused to provide
representation to Gachett following his termination. See Bartholomew, 361 F.3d at 1342
(holding that district court did not err in concluding that limitations period began to run when
plaintiffs were informed that union would not submit their grievances to arbitration).
However, it is not clear from the face of the Complaint when the Union refused Gachett
union representation. The Complaint alleges only that Gachett was terminated on April 17,
2009, and that sometime after that date, Gachett sought the Union’s assistance in appealing
his termination and was denied representation. (Doc. #1-1, at ¶¶ 4–5.) Because the
Complaint does not make clear that the six-month statute of limitations had expired before
Gachett filed his state court complaint on April 11, 2011, the Court refuses to dismiss
Plaintiff’s claims with prejudice as being time-barred.6 Bhd. of Locomotive Eng’rs and
Trainmen Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d
1190, 1194 (11th Cir. 2008) (“A Rule 12(b)(6) dismissal on statute of limitations grounds is
appropriate only if it is apparent from the face of the complaint that the claim is timebarred.”).
The Union’s Motion to Dismiss is premised solely on the propositions that preemption
is an automatic ground for dismissal, and that Plaintiff’s claims are time-barred. The Court
finds no other basis to dismiss Plaintiff’s Complaint for failure to state a claim upon which
relief may be granted. Moreover, dismissal with prejudice of all claims as preempted is
unwarranted at this time because the pleading before the Court was confined to state law
claims and state court pleading requirements. See Smith, 681 F. Supp. 2d at 1006 (allowing
plaintiff to amend complaint to clarify the precise nature of preempted state law claims).
Thus, although the Court finds that Counts One Through Five are preempted by federal law,
the Court will allow Gachett to re-plead these claims under federal law and federal pleading
For the foregoing reasons, it is hereby ORDERED that
(1) The Union’s Motion (Doc. #15) is GRANTED IN PART AND DENIED IN
In his opposition to the Union’s Motion to Dismiss, Gachett restates the facts and clarifies
that, “at the time of his discharge, [he] sought the assistance of the Union to represent him in an
appeal of his discharge, but the [Union] refused to provide that representation.” (Doc. #18, at 2.)
Because it is unclear from the face of the complaint and from the parties’ briefs when the statute of
limitations began to run, this issue is best reserved for summary judgment.
PART. It is granted to the extent that Count Six of the Complaint (Doc. #1-1), which pleads
claims against fictitious parties, is DISMISSED WITH PREJUDICE. The Union’s Motion
is DENIED in all other respects.
(2) Gachett shall file an amended complaint clarifying the precise nature of his
federal claims on or before April 29, 2013. If Gachett fails to file an amended complaint by
this date, Counts One through Five of his Complaint shall be dismissed with prejudice as
preempted by federal law.
DONE this the 29th day of March, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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