Steward v. International Longshoremen's Association, Local No. 1408

Filing 25

ORDER granting 23 Defendant's Motion to Dismiss; dismissing 18 Plaintiff's Amended Complaint without prejudice. Plaintiff may file a second amended complaint no later than 10/3/2022. Defendant shall respond no later than 10/24/2022. If Defendant files a motion to dismiss, Plaintiff shall respond no later than 11/14/2022. See Order for details. Signed by Judge Timothy J. Corrigan on 9/16/2022. (RMV)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ALBERT STEWARD,
Plaintiff,
v.

Case No. 3:21-cv-973-TJC-MCR

INTERNATIONAL
LONGSHOREMEN’S
ASSOCIATION, LOCAL NO. 1408,
Defendant.
ORDER
This case is before the Court on Defendant International Longshoremen’s
Association, Local No. 1408’s (“the union”) Motion to Dismiss Amended
Complaint with Prejudice. (Doc. 23). Pro se Plaintiff Albert Steward has
responded. (Doc. 24). The Motion is now ripe.
This is, as far as the Court can ascertain, the third case since 2005 that
Steward has filed to attempt to receive redress on similar claims. Steward v.
Int’l Longshoremen’s Ass’n, Local No. 1408, No. 3:05-CV-1094-J-25TEM, 2008
WL 11336515, at *2 (M.D. Fla. Apr. 21, 2008), aff’d 306 F. App’x 527 (11th Cir.
2009) (“Steward I”); No. 3:16-CV-1194-J-39PDB, 2019 WL 13065834, at *2

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(M.D. Fla. Oct. 30, 2019), aff’d 829 F. App’x 913 (11th Cir. 2020) (“Steward II”). 1
The union primarily argues that Steward’s Amended Complaint should be
dismissed with prejudice under res judicata and collateral estoppel because it
realleges issues that the Court and the Eleventh Circuit already considered and
rejected in Steward II. (Doc. 23 at 9–12); see 829 Fed. App’x. 913 (11th Cir.
2020). The union alternatively argues that Steward’s claims are time-barred
and that the Amended Complaint fails to state a claim. (Doc. 23 at 12–18).
Steward’s Amended Complaint has three counts: (1) failure to represent,
based on the Executive Board’s refusal to hear his grievance; (Doc. 18 at 9); (2)
improper removal of hours from his annual work record; id. at 12; and (3) unjust
enrichment for removing hours from his account; id. The Court addresses each
count in turn.
Beginning with Count I, failure to represent, Steward alleges that the
union violated its duty to represent Steward by failing to hold a hearing on a
grievance letter Steward filed in 2020. (Doc. 18 at 9; Doc. 18-1 at 9). Steward
does not describe or attach the grievance, so it is unclear what Steward was
asking of the Executive Board. The other paragraphs in Count I discuss another
union member, more junior than Steward, who Steward alleges recovered his

Local 1408 does not discuss Steward’s 2005 action, thus referring to the
second action, 3:16-cv-001194-BJD-PDB, as “Steward I.” (Doc. 23 at 2). For
clarity, the Court identifies and distinguishes between both prior cases.
1

2

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“original port seniority and a promotion as permanent Shop Foreman” in early
2021. (Doc. 18 at 9–10). Steward also alleges that the union “fail[ed] to refer”
Steward “to jobs for which he was . . . qualified in accordance with his seniority”
and that the union’s actions were “arbitrar[y], discriminator[y], in bad faith,
[and] without reason or cause.” Id. at 10.
Steward’s allegations do not sufficiently state a claim. A complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face
if “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678. “Conclusory allegations and legal conclusions are not sufficient . . . .”
Feldman v. American Dawn, Inc., 849 F.3d 1333, 1340 (11th Cir. 2017). To state
a failure to represent claim under the National Labor Relations Act, Steward
must show that the “union’s conduct” was “arbitrary, discriminatory, or in bad
faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967); see Steward II, 2019 WL
5188524, at *13–14 (explaining the showing Steward must make to allege a
failure to represent claim). He has not met this standard.
First, Steward does not explain how the union president’s denial of
Steward’s 2020 hearing request was arbitrary, discriminatory, or in bad faith,
aside from his conclusory statement that “the failure to investigate the merits
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of a grievance could be arbitrary conduct and a breach of a duty.” (Doc. 18 at 9).
He does not describe the grievance itself, further complicating the Court’s task.
And the president’s response, which Steward attaches, suggests that the
hearing was denied because the grievance was duplicative of an issue already
resolved by Steward’s prior litigation. See (Doc. 18-1 at 9). Steward does not
explain, nor can the Court speculate, why the president’s response was
arbitrary, discriminatory, or in bad faith.
Second, Steward does not explain how the union restoring another
worker’s seniority through amnesty 2—and subsequently promoting him ahead
of Steward—was arbitrary, discriminatory, or in bad faith. See (Doc. 18 at 3–4,
9). Steward does not argue that amnesty was improper; rather, he complains of
the result: another worker ended up with a higher seniority and a better job
than Steward, even though Steward had been on the job longer. See id. Without
Steward explaining why the other worker should not have received amnesty—
or why Steward should have received it too—the Court cannot infer a claim that
the union acted improperly. See Steward II, 829 F. App’x at 917 (finding that a
nearly identical allegation failed because Steward did not explain how granting
other union members amnesty, but not Steward, was “incorrect or improper”)
Although Steward does not use the word “amnesty” in his Amended
Complaint, the Court and the Eleventh Circuit have previously used this word
to describe related incidents of port workers having their original seniority
restored. 2019 WL 5188524, at *3; 829 F. App’x at 916–917.
2

4

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(quotations omitted). The Court will give Steward one more opportunity to
make this showing.
Turning next to Counts II and III, these closely related counts also fail to
state a claim. Steward does not identify a cause of action under Count II but
describes his injury as “[t]he removal of hours and years” from his employment
record, affecting his retirement and pension. (Doc. 18 at 12). Count III is titled
“unjust enrichment,” and cursorily mentions Steward’s “years and credit hours”
and “Retirement Plans, Benefits and Savings,” before claiming that the union
“retaliate[ed] against Steward, by refusing him a hearing on his grievances.” Id.
The Court cannot tell whether Count II is an independent breach of duty
claim under the National Labor Relations Act, or whether it is merely a
preamble to Count III. Likewise, the Court cannot determine whether Count III
is a state law claim, whether it is another breach of duty claim based on
retaliation, or both. See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d
1313, 1322–23 n.13 (11th Cir. 2015) (holding complaints that combine multiple
causes of action into one count are shotgun pleadings). The Court will give
Steward one more chance to amend Counts II and III to fix these problems.
However, a word of caution. Steward recently benefited from four
amended complaints and an Eleventh Circuit review in Steward II. See 2019
WL 5188524, at *1; 829 F. App’x 913. The union argues compellingly that most
(if not all) of Steward’s claims are now barred by collateral estoppel. (Doc. 23 at
5

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10–12). In the interests of judicial economy and preventing frivolous and
duplicative lawsuits, if Steward files a second amended complaint, he should
consider whether it simply retreads the same ground as his past failed actions.3
Cf. FED. R. CIV. P. 11(b) (outlining the pleading requirements applicable to all
parties, including pro se litigants).
Accordingly, it is hereby
ORDERED:
1.

Defendant International Longshoremen’s Association, Local No.

1408’s Motion to Dismiss (Doc. 23) is GRANTED.
2.

The Amended Complaint (Doc. 18) is DISMISSED without

prejudice.
3.

No later than October 3, 2022, Plaintiff Albert Steward, only if he

has a good faith basis to do so, may file a second amended complaint.

Collateral estoppel prevents a party from relitigating the same issue in
a new case if:
3

(1) an identical issue was presented in the prior
proceeding; (2) the issue was a critical and necessary
part of the prior proceeding; (3) the issue was fully and
fairly litigated in the previous proceeding; (4) the
parties in the two proceedings were identical; and (5) a
final decision was rendered by a court of competent
jurisdiction.
Bryant v. Jones, 575 F.3d 1281, 1303 (11th Cir. 2009).
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4.

If a second amended complaint is filed, Defendant shall respond no

later than October 24, 2022.
5.

If Defendant files a motion to dismiss, Steward shall respond no

later than November 14, 2022.
DONE AND ORDERED in Jacksonville, Florida the 16th day of
September, 2022.

rmv
Copies:
Pro se Plaintiff
Counsel of record

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