Price v. Local 227 UFCW et al
Filing
57
MEMORANDUM OPINION & ORDER: (1) the Motion to Dismiss by UFCW Local 227, Gary Best, and Chris Sanders, 21 , is GRANTED; (2) Pla's Motion to Amend Complaint, 27 , is DENIED; (3) the Motion to Dismiss by Kroger and Sean Stallard, 36 , is hereb y GRANTED; (4) that the Motion for Leave to Seal a Document, 37 , is hereby GRANTED; (5) that the Motion to Dismiss by Joseph Hensen and Kevin Sullivan, 39 , is hereby GRANTED; (6) that the Motion to Strike, 47 , Price's Responses located at 43 and 44 is hereby GRANTED; and (7) Bryan Price shall SHOW CAUSE by 4/24/15, why his claims against International Office of UFCW should not be dismissed with prejudice. Signed by Judge Joseph M. Hood on 04/10/2015.(LC)cc: COR, Plaintiff via U.S. Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
BRYAN PRICE,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
LOCAL 227 UFCW, et al.,
Defendants.
**
This
matter
Action No. 5:14-cv-94-JMH
MEMORANDUM OPINION AND ORDER
**
before
is
**
the
**
**
Court
upon
various
motions,
including: the motion to dismiss by United Food and Commercial
Workers
Local
227
(“Local
227”),
Gary
K.
Best,
and
Chris
Sanders, [DE 21]; the motion to dismiss by Kroger 1 and Sean
Stallard, [DE 36]; the motion to dismiss by Joseph Hensen 2 and
Kevin
Sullivan,
[DE
39];
Defendants’
motion
to
strike
Plaintiff’s second and third responses to Defendants’ motion to
dismiss, [DE 47]; Plaintiff’s motion to amend the complaint to
add an additional defendant, [DE 27]; and Kroger’s motion for
1
In its Motion to Dismiss, Kroger Limited Partnership I notified the Court
that Price had incorrectly designated it as “The Kroger Company.”
For the
sake of simplicity, the Court will simply refer to the defendant here as
“Kroger.”
2
In his Motion to Dismiss, Hensen reports that his name is Joseph Hanson and
that Plaintiff has incorrectly designated him as “Joseph Hensen.”
leave to seal a document, [DE 37].
The time for briefing is
complete and the Court has considered each of these motions.
I.
Price, proceeding pro se, filed a complaint and an amended
complaint
in
which
he
named
Local
227
and
the
International
Office of United Food and Commercial Workers (“Int’l UFCW”), as
well as several individual officers, as defendants.
While the
basis of the claims is not entirely clear, Price alleged that
the Unions failed to represent him adequately with respect to
his
employment
dispute
with
Kroger.
Price
then
filed
an
additional pleading, adding claims against Kroger for wrongful
discharge and breach of contract.
Subsequently, Price filed a
final amended complaint in which he added a claim of slander
against both Unions and Kroger.
Based on Price’s pleadings and the attachments thereto,
the Court ascertains the following:
against
Kroger
discriminated
in
against
December
him
Price filed an EEOC charge
2004,
unlawfully
claiming
during
his
that
Kroger
employment.
Price also claims that Kroger terminated his employment in March
2005 in retaliation for his having filed the earlier charge.
Following his termination, Price filed a second EEOC charge,
which resulted in a settlement with Kroger in early 2006.
2
Some
eight years later, apparently unsatisfied with the outcome of
the settlement, Price filed this action.
II.
To
survive
a
motion
to
dismiss,
a
plaintiff
must
demonstrate “a claim to relief that is plausible on its face.”
Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007).
A plaintiff’s
allegations must be sufficient to raise his or her claims above
a speculative level.
Id.
elements
of
of
a
cause
“the
Neither “[t]hreadbare recitals of the
action,
mere
supported
possibility
by
of
mere
conclusory
statements”
nor
misconduct”
is
sufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
In
considering a motion to dismiss, the Court may rely on documents
attached to or referred to in a complaint without converting the
motion into a motion for summary judgment, as documents attached
to pleadings are considered part of the pleading itself.
See
Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997); Weiner
v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997); see also Fed.
R. Civ. P. 10(c).
III.
The Court begins by addressing Price’s claims of breach of
the Unions’ duty of fair representation and Kroger’s breach of
3
contract—presumably, the collective bargaining agreement. 3
While
§ 301 of the Labor Management Relations Act does not provide a
statute of limitations, the Supreme Court has said that a sixmonth limitations period applies to these claims.
See Potts v.
Am. Bottling Co., 595 F. App’x 540, 543 (6th Cir. 2014) (citing
DelCostello
v.
Int’l
Bhd.
of
Teamsters,
462
U.S.
151,
169
(1983)). Generally, the statute of limitations begins to run
when the plaintiff “knows or should have known of the union’s
alleged breach of its duty of fair representation.”
Bowerman v.
Int’l Union Auto., 646 F.3d 360, 366 (6th Cir. 2011).
Price filed this action on March 11, 2014.
The most recent
conduct complained of in Price’s complaint occurred in 2007—
“Chris Sanders failed to represent me on December 12, 2007.”
Additionally,
the
most
recent
date
mentioned
in
Price’s
complaint is June 3, 2008, when Price avers that he “went to the
National Labor Relations Board about [Sanders].”
Accordingly,
the
expired
no
and
six-month
relief
can
statute
be
of
DE 8, ID# 48.
limitations
granted
upon
has
these
long
claims.
Further, Price has failed to state a timely claim for breach of
the collective bargaining agreement, as Price has not worked for
Kroger
since
2005.
Additionally,
3
he
entered
into
a
binding
Price has alleged no facts to suggest the existence of any other contract
except a collective bargaining agreement and, of course, the settlement
agreement that resulted after the termination of Price’s employment.
4
settlement agreement with Kroger in 2006, releasing all claims
arising from the employment relationship. 4
Thus, the breach of
contract claim against Kroger is not only time barred—it is also
barred by the settlement agreement.
Price’s slander claims are also barred by the applicable
statute of limitations.
brought
within
statement.
one
Under Kentucky law, such claims must be
year
of
publication
of
a
defamatory
K.R.S. § 413.140(1)(d); Caslin v. Gen. Elec. Co.,
608 S.W.2d 69, 70 (Ky. Ct. App. 1980).
As stated above, the
most recent date mentioned in the complaint is in 2008.
And
even if Price’s claims of slander were not time-barred, Price
fails to put sufficient flesh on his bare bones allegations and
they would fail for that reason, as well.
See McBrearty v. Ky.
Cmty. & Tech. Coll. Sys., 262 S.W.3d 205, 213 (Ky. Ct. App.
2008)
(describing
required
elements
for
slander
action).
Accordingly, his slander claims shall be dismissed.
The
Court
notes
that
Int’l
dismiss the claims against it.
UFCW
has
failed
to
move
to
Upon a review of the record,
however, it is appears that Int’l UFCW was never served properly
and,
thus,
dismissal
without
prejudice
4
would
be
appropriate
Price filed a separate employment-discrimination suit against Kroger in this
Court, which was dismissed on March 30, 2015. No. 5:14-cv-257-JMH. The Court
determined that, based on the Voluntary Settlement Agreement and Release and
the Negotiated Settlement Agreement that Price had entered into with Kroger,
his discrimination and retaliation claims against Kroger were barred. DE 19.
5
pursuant to Federal Rule of Procedure 4(m).
In light of the
foregoing analysis, however, the Court is of the opinion that
dismissal
with
prejudice
is
appropriate.
Accordingly,
Price
will be ordered to show cause why the claims against Int’l UFCW
should not be dismissed with prejudice for the reasons given in
this opinion.
Price moves for leave to amend his complaint to add an
additional
Council 4.”
defendant—“Larry
Plumb,
President
UFCW
Regional
Although leave to amend is to be granted freely, it
will not be granted when the proposed amendment would be futile.
See Hoover v. Langston Equip. Assocs., Inc., 958 F.2d 742, 745–
46 (6th Cir. 1992).
Price failed to tender a proposed amended
complaint along with his motion, so the Court can only assume
that he intends to allege the same claims against Plumb as the
rest of the union officials. For the reasons already discussed,
however, these claims fail.
Accordingly, amending the complaint
to add Plumb as a defendant would be futile and will not be
permitted.
Defendants’
motion
to
strike
Price’s
second
and
third
responses to Defendants’ motion to dismiss will be granted, as
such filings are not authorized by the Joint Local Rules of
Civil Practice and Price did not seek leave of Court to file
additional briefing.
While pro se litigants may be given more
6
flexibility with respect to the Court’s procedural requirements,
there are no extraordinary circumstances present in this case
that warrant a sur-reply, let alone two.
See Douglas v. City of
Richmond, No. 5:09-cv-175-JMH, 2009 WL 3447285, at *1 (Oct. 22,
2009 E.D. Ky.).
Kroger has also moved to file Exhibit A to its motion to
dismiss under seal.
contains
a
Exhibit A is a settlement agreement, which
confidentiality
provision.
Having
carefully
considered this request, the Court concludes that the exhibit
should be filed under seal.
Accordingly, Kroger’s motion to
file Exhibit A under seal will be granted.
Accordingly, IT IS ORDERED:
(1)
that the Motion to Dismiss by UFCW Local 227, Gary
Best, and Chris Sanders, [DE 21], is hereby GRANTED;
(2)
that Plaintiff’s Motion to Amend Complaint, [DE 27],
is hereby DENIED;
(3)
that
the
Motion
to
Dismiss
by
Kroger
and
Sean
Stallard, [DE 36], is hereby GRANTED;
(4)
that the Motion for Leave to Seal a Document, [DE 37],
is hereby GRANTED;
(5)
that the Motion to Dismiss by Joseph Hensen and Kevin
Sullivan, [DE 39], is hereby GRANTED;
7
(6)
that
the
Motion
to
Strike,
[47],
Price’s
Responses
located at Docket Entries 43 and 44 is hereby GRANTED; and
(7)
before
that
April
Plaintiff
24,
2015,
Bryan
why
Price
his
shall
claims
SHOW
against
CAUSE
8
or
International
Office of UFCW should not be dismissed with prejudice.
This the 10th day of April, 2015.
on
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