United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Noranda Alumina, LLC
ORDER AND REASONS denying 6 Motion to Dismiss for Failure to State a Claim. Signed by Judge Nannette Jolivette Brown on 3/18/2014. (my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL-CIO
NORANDA ALUMINA, LLC
ORDER AND REASONS
This case is an union-employee dispute arising under Sections 301(a) and (c) of the Labor
Management Relations Act of 1947 (LMRA). United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO
(“USW”) has brought suit in this Court to seek an order to compel arbitration against Defendant
Noranda Alumina, LLC (“Noranda”). Before the Court is Noranda’s Motion to Dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6),1 wherein it seeks dismissal of the USW’s single cause
of action to compel arbitration under Sections 301(a) and (c) of the LMRA for failure to state a
claim upon which relief can be granted. The Court has considered the complaint, the parties’
respective briefs, the record, and the applicable law. For the reasons set forth below, the Court will
deny the motion.
Rec. Doc. 6.
A. Factual Background
Plaintiff USW and Defendant Noranda are parties to a collective bargaining agreement that
contains a standard grievance and arbitration provision.2 On July 12, 2013, USW filed a complaint
against Noranda, alleging that Noranda improperly refused to arbitrate a labor grievance brought by
the USW on behalf of Kent Haydel, a former Noranda employee.3 Haydel worked for Noranda until
May 1, 2006, at which time he suffered a work-place injury.4 He remained on workers’
compensation from then until May 4, 2010.5 As a result of his injuries, Haydel was never able to
return to work, and he later applied for and received a disability retirement pension from Noranda.6
The essence of the grievance USW brought on behalf of Haydel revolves around the number of years
of pension service credit with which Noranda credited Haydel. Noranda credited Haydel with one
year.7 Noranda claims it properly calculated Haydel’s monthly pension “based upon his total benefit
service, meaning his years of active service with Noranda, plus one additional year” while Haydel
was on workers’ compensation.8 It is USW’s position that Noranda should have credited Haydel
Rec. Doc. 6-2 at 2.
Rec. Doc. 1 at 4.
Rec. Doc. 6-2 at 2.
Rec. Doc. 1 at 2.
Id. at 2–3.
Rec. Doc. 6-2 at 2.
with pension service credit for all years in which he was on workers’ compensation, i.e. that is four
When Noranda and USW failed to resolve the matter, USW appealed the matter to
arbitration.10 Noranda refused to submit the matter to arbitration.11
B. Procedural Background
Prior to the filing of this lawsuit by USW to compel arbitration, Noranda claims that it
“provided numerous warnings to Plaintiff that the appropriate method for challenging Haydel’s
benefit determination was through the Plan appeal procedure,”12 which will be discussed below. This
is important because, under Section 301 of the LMRA, the statute under which USW has brought
this action, a party only has 6 months from when the other party refuses to arbitrate the dispute to
file a lawsuit to compel arbitration under a collective bargaining agreement.13 Noranda claims that
it first gave warning to USW that it would not arbitrate the dispute on April 4, 2012, when Noranda
advised Plaintiff that “The Noranda Alumina LLC Hourly Employee Pension Plan (‘Pension Plan’
or ‘Plan’) document details the eligibility and benefits of the pension benefits.”14 Later, on February
1, 2013, Noranda contends that its counsel again advised USW that it would not arbitrate the dispute,
telling USW that “any dispute concerning Plan benefits must be brought pursuant to Plan
Rec. Doc. 1 at 3.
Rec. Doc. 6-2 at 3.
See Aluminum, Brick and Glass-Workers International Local 674 v. A.P. Green Refractories, Inc., 895 F.2d
1053, 1054–55 (5th Cir. 1990).
Rec. Doc. 6-2 at 3.
procedures.”15 Finally, on April 5, 2013, Noranda maintains that it yet again informed USW that
“any dispute concerning Plan benefits must be brought pursuant to Plan procedures.”16
Rather that going through what Noranda claims is “the mandatory review procedure under
the Plan,”17 USW filed suit in this matter on July 12, 2013, invoking this Court’s federal question
jurisdiction because the controversy centered on LMRA Section 301.18 In its complaint, USW
alleges that “Noranda has refused without justification to arbitrate the grievance”19 and seeks an
order to compel arbitration regarding Haydel’s pension claims.20
In response, Noranda filed the pending motion to dismiss with a memorandum in support of
its motion on August 12, 2013.21 USW filed a response in opposition to Noranda’s motion to dismiss
on September 3, 2013.22 With leave of Court, Noranda filed a reply in support of its motion on
September 13, 2013.23
Rec. Doc. 1 at 1.
Id. at 3.
Rec. Doc. 6.
Rec. Doc. 15.
Rec. Doc. 18.
II. Parties’ Arguments
A. Noranda’s Arguments in Support of Motion to Dismiss
Noranda raises two arguments in support of its motion to dismiss. First, Noranda contends
that there is no right to arbitration for the grievance because grievances about pensions are
controlled by the Pension Plan, which vests final and exclusive authority for decisions regarding
pension benefits in the hands of Plan fiduciaries.24 If dissatisfied with the Plan fiduciaries’ decision,
the Plan provides for internal review of the Plan fiduciaries’ decision.25 Finally, if employees are
unsatisfied with the outcome of the internal review, the Plan allows employees to seek further
review by filing a complaint in federal or state court pursuant to the Employee Retirement Income
Security Act (ERISA) Section 502(a).26 Noranda maintains that “it is undisputed that Plaintiff did
not follow the Plan’s procedure.”27 In other words, USW did not first seek internal review of the
Plan fiducaries’ decision and did not file a lawsuit under ERISA Section 502. “As a result,”
Noranda argues, “binding precedent in this Circuit mandates the dismissal of Plaintiff’s claim.”28
Elaborating on its argument, Noranda cites Local Union No. 4-449, Oil, Chem. & Atomic
Workers Union, AFL-CIO v. Amoco Chem. Corp.29 Noranda argues, based on this case, that “[b]y
adopting the claims review procedure within the Plan and by making the Plan Administrator’s
Rec. Doc. 6-2 at 1.
589 F.2d 162 (5th Cir. 1979).
determination final and binding, the determinations of the Plan Administrator are non-artibrable.”30
Noranda maintains that the above case, Amoco, is “directly on point and controls the outcome of this
case.”31 As Noranda explains:
Not unlike the Labor Agreement applicable here, the collective bargaining agreement
in Amoco . . . provided that sickness and disability benefits would be payable in
accordance with the company’s Sickness and Disability Benefits Plan. Just as the
benefit determinations made by Noranda’s Plan Administrator are final, so too were
the benefit determinations made by the Board of Directors under the Sickness and
Disability Benefits Plan in Amoco . . . . When the Board of Directors denied sick pay
benefits for certain work absences, the union sought to have the matter resolved
through the grievance and arbitration procedure of the collective bargaining
According to Noranda, in Amoco, the Fifth Circuit concluded that it could not compel the company
to arbitrate the dispute.33 The Fifth Circuit held that, even though “arbitration must be given the
benefit of the doubt,” there was “no ambiguity as to the intent of the [Sickness and Disability
Benefits] Agreement to exclude grievances dealing with sickness and disability benefits from
arbitration.”34 Noranda cites to the Amoco Court’s reasoning:
Section IX of the [Sickness and Disability Benefits] Plan which is incorporated into
the Agreement by Article VIII directly states that the Board reserves the right to
interpret and apply the Plan, and that the decision of the Board [of Directors] will be
final. It is clear that the plain and intended meaning of Article VIII of the Agreement
and Section IX of the Plan is that questions concerning sickness and disability
benefits should be presented to the Board, whose decision would be final. The
language in Section IX of the Plan, which makes the Board’s decision final in
sickness and disability matters, obviously excludes arbitration for grievances
Rec. Doc. 6-2 at 6.
Id. at 7.
Id. at 8.
589 F.2d at 163.
concerning such subject matter. To hold otherwise would be to render Article VIII
fo the Agreement and Section IX of the Plan totally meaningless.35
Noranda argues that “[t]here is no material difference between the terms of the labor
agreement and the sickness and disability benefits plan at issue in Amoco, and the terms of the
collective bargaining and pension benefits plan at issue here.”36 Significantly, both the labor
agreement in Amoco and the labor agreement here incorporated by reference the terms of the benefit
plans. And both of these benefits plans vest final decision-making authority in a specific person or
institution, here the Plan fiduciaries (also called the Plan Administrator), in Amoco the Board of
Directors.37 Thus, following the Fifth Circuit’s reasoning in Amoco, dismissal is appropriate here,
according to Noranda, because the Plan necessarily expresses an intent to exclude arbitration by
granting Plan fiduciaries “the sole discretion to make final benefit determinations.”38 Noranda
argues that under Amoco, the granting of such a power “obviously excludes arbitration for
grievances concerning such subject matter.”39
Second, Noranda argues that Plaintiff’s complaint is time-barred because it was not filed
within the requisite six months that Section 301 of the LMRA requires.40 For this proposition,
Noranda cites to Aluminum, Brick & Glassworkers Int’l Union Local 674 v. A.P. Green Refractories,
Id. at 164.
Rec. Doc. 6-2 at 8.
Id. (quoting 589 F.2d at 164).
Id. at 11.
Inc.,41 in which the Fifth Circuit held that “an action to compel arbitration of a collective bargaining
agreement under Section 301 of the Labor Management Relations Act is governed by the six-month
limitation included in Section 10(b) of the National Labor Relations Act.”42 Here, Noranda claims
that it made a clear refusal to arbitrate, thus triggering the six-month limitation period, on April 4,
2012, when Noranda responded to USW’s grievance claim on behalf of Haydel by stating that the
Labor Agreement did not control Haydel’s benefit determination.43According to Noranda, this
response to USW “necessarily meant that the determination was not controlled by the grievance
procedure,” and was tantamount to a refusal to arbitrate,44 which, Noranda points out, “does not turn
on whether the party resisting arbitration has filed a petition to stay arbitration or has uttered the
magic words ‘we refuse to arbitrate this dispute.’”45 Thus, Noranda concludes that USW only had
until October 4, 2012 to file suit under LMRA Section 301.46 As USW did not file suit until July
12, 2013, its claim is time-barred.47
B. USW’s Arguments in Opposition
895 F.2d 1053 (5th Cir. 1990).
Id. at 1055.
Rec. Doc. 6-2 at 12.
Id. at 11 (quoting Indep. Coca-Cola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola Bottling Co.
United, Inc., 114 F. App’x 137, 140 n.11 (5th Cir 2004)).
Id. at 12.
USW argues in response that USW is entitled to “the presumption of arbitrability” because
the parties provided in the collective bargaining agreement48 that:
Should any differences arise between [Noranda] and [USW] as to the meaning or
application of the provisions of this Agreement, or as to any question relating to the
wages, hours or work, or other conditions of employment of any employee, the same
shall be disposed of in accordance with the provisions of this Article.49
USW asserts that it “set forth the following factual basis in support of Haydel’s Grievance
and specifically alleged a violation of Article 9.D.1(c) of the [Labor Agreement],50 which provides:
Continuous service shall be calculated from date of first employment or
reemployment following a break in continuous service in accordance with the
following provisions of this Article; provided, however, that the effective date of
employment prior to the date of this Agreement shall be the date of first employment
or reemployment after any event which constitutes a break in service under the
practices in effect at the time the break occurred.51
Article 9.D.1(c) continues
There shall be no deduction for any time lost which does not constitute a break in
continuous service. Continuous service is broken by . . . . [a]bsence due either to
layoff or to disability, or both, which continues for more than three (3) years;
provided, however that employees injured while on duty for which Worker’s
Compensation is payable shall accumulate credit for Continuous service until the
termination of the period for which their statutory compensation is payable.
Notwithstanding the foregoing, employees shall accumulate continuous service up
to five (5) years during an absence due either to layoff or to disability, or both, for
the purpose of recall rights, only, under this Article 9.52
What Noranda refers to as the “Labor Agreement,” USW calls the collective bargaining agreement. For
consistency’s sake, this Order will adopt the term “Labor Agreement” throughout.
Rec. Doc. 15 at 4.
Id. at 4–5.
Id. at 5.
Based on these provisions in the Labor Agreement, USW argues that Haydel’s grievance set
forth a dispute over “the proper application of the [Labor Agreement] seniority provisions . . . and
raised questions concerning conditions of employment (seniority; continuous service; and pension
service credit) . . . .”53 Thus, the dispute over Haydel’s pension, according USW, is subject to
arbitration because “[t]he parties granted the impartial arbitrator’s [sic] broad authority to consider
matters other than the [Labor Agreement] when necessary in the determination of the submitted
grievance.”54 From this, USW concludes that its “requested order to arbitrate should not be denied”
because “Noranda does not point to any express provision in the [Labor Agreement] excluding
seniority grievances from arbitration,” as it is required to, according to USW, under Supreme Court
USW argues that Noranda is wrong that “the only review procedure available to Haydel and
the Union to address the dispute over Haydel’s seniority rights and the determination of Haydel’s
pension service credit is through the ‘claims procedure’ established by Noranda’s ‘Retirement
Committee’ pursuant to Articles 11.07 and 11.08 the Plan.”56 “In advancing this argument,”
according to USW, “Noranda fails to acknowledge that application of Articles 11.07 and 11.08 is
expressly limited by Article 11.17 of the Plan.” According to USW, Article 11.17 “protects
Haydel’s and [USW’s] existing [Labor Agreement] rights to pursue the present dispute through . .
. arbitration . . . .” In support, USW quotes Article 11.17, which reads: “The provisions of this
Id. at 6 (citing AT&T Techs., Inc, 475 U.S. 643, 648–51 (1986)).
Article 11 shall not apply to the extent any such provision conflicts with an agreement with a
collective bargaining unit.” According to USW, “[t]he plain and intended meaning of Article 11.17
of the Plan is to protect rights established under the [Labor Agreement] from conflicting provisions
set forth in Article 11 of the Plan.” USW argues that
To the extent Noranda requires Haydel and [USW] to submit the Haydel Grievance
to the Plan’s Review Committee pursuant to Article 11.07 of the Plan, such action
‘conflicts with’ the parties’ agreement in Article 10(A) of the [Labor Agreement] to
address disputes ‘as to the meaning or application of the provisions’ of the [Labor
Agreement] or ‘as to any question relating to . . . other conditions of employment .
. . .’57
According to USW, “[s]uch a requirement is contrary to the express provisions of Article 11.7 of
Further, USW argues that
To the extent Noranda asserts that only the Retirement Committee, pursuant to
authority granted under Article 11.08 of the Plan, can decide the issues raised in the
Haydel Grievance, such action ‘conflicts with’ the parties’ agreement in Article
10(C) of the [Labor Agreement] that the impartial arbitrator has authority to address
grievances . . . .59
Such an assertion,” USW concludes, “is contrary to the express provisions of Article 11.17 of the
USW also takes issue with Noranda’s characterization of Amoco as directly on point. USW
believes there are important differences between Amoco and the present case, most notably that
“[n]either the [Labor Agreement] nor benefits plans in Amoco [sic] contained language similar to
Id. at 7.
Id. at 8.
Article 11.17 of the Plan.”61 As a result, USW concludes that “Noranda has failed to establish its
burden, presentation of the ‘most forceful evidence’ of the parties’ intention to exclude a seniority
grievance . . . from . . . arbitration . . . .”62
Regarding Noranda’s argument that USW’s lawsuit is time-barred, USW asserts that
Noranda’s April 2012 letter did not trigger the limitations period because it did not “clearly or
unequivocally” express a refusal to arbitrate, as is required.63 According to USW, “[t]he April 2012
letter never mentioned how Haydel or the Union was to address disputes over Haydel’s pension
service credit, never stated such a dispute was not subject to . . . arbitration . . ., and did not express
Noranda’s unwillingness” to arbitrate.64
Moreover, Noranda argues that Noranda’s argument is “contradicted by Noranda’s counsel’s
February 1, 2013 letter . . . and Noranda’s April 5, 2013 letter . . . .”65 According to USW, “[t]he
February 2013 letter claimed its ‘non-arbitrability’ position was presented to [USW] during the
parties’ January 16, 2013 meeting.”66 Also according to USW, “Noranda’s April 2013 letter to
[USW] . . . referenced the February 2013 letter and unidentified meetings, but made no claim that
Noranda’s ‘non-arbitrability’ position was asserted in the April 2012 letter.”67 Therefore, USW
concludes that “[t]he April 2012 letter falls short of the requisite ‘unequivocal’ notice of a refusal
Id. at 9.
Id. at 9–10.
Id. at 10.
Id. at 10.
to arbitrate that is necessary to trigger the six months limitations period for [USW]’s suit to compel
arbitration.”68 USW notes that its “suit was filed within six months of the January 16, 2013 meeting
cited in the February 2013 letter.”69 Thus, USW filed suit timely and Noranda’s argument to the
contrary “is without merit.”70
C. Noranda’s Reply in Support of Motion to Dismiss
In reply, Noranda argues that Amoco is “[a] straightforward application of binding Fifth
Circuit precedent” that “mandates dismissal of Plaintiff’s Complaint.”71 According to Noranda,
Amoco “makes clear that the language utilized by the parties in the Plan—granting each Plan
fiduciary ‘absolute discretionary authority’ which is ‘final, conclusive and binding’—renders
Plaintiff’s dispute involving pension benefits under the Plan non-arbitrable.”72
Noranda reiterates that the subject of the grievance at issue is “the proper calculation of Kent
Haydel’s pension, which is a benefit established under and governed by the Plan, not the Labor
Agreement.”73 As Noranda sees it, “[B]ecause the Labor Agreement in no way addresses or
implicates an employee’s pension benefit, there is not, nor could there be, any conflict between the
[Labor Agreement and Plan].”74
Breaking down its argument, Noranda begins by noting that Haydel’s grievance is controlled
Id. at 11.
Rec. Doc. 18 at 1.
Id. at 2.
by the Plan not the Labor Agreement.75 Noranda argues that Article 9 of the Labor Agreement, cited
by USW, “has nothing to do with an employee’s ‘benefit service’ under the Plan.”76 As Noranda
explains, “[T]he definition of ‘continuous service’ found in Article 9 of the Labor Agreement is only
used to determine how seniority is calculated.” Noranda continues that “Plaintiff points to absolutely
no language that even remotely suggests that the definition of ‘continuous service’ in Article 9
should be used to determine how an employee’s pension is calculated under the Plan.”77 For
Noranda, this distinction is key because USW is not challenging Haydel’s seniority, which would
be subject to Article 9’s definition of “continuous service.”78 Rather, “Plaintiff is challenging the
calculation of Haydel’s benefit service under the Plan.”79 According to Noranda, “For that purpose,
Section 2.01 of the Plan provides its own separate and distinct definition of the term ‘continuous
service.’”80 Noranda also points out that, “Section 2.01 clearly states that the definition of
‘continuous service’ set forth in that Section shall be used ‘for the purpose of determining [an
employee’s] Vesting Service and Benefit Service under the Plan . . . .’”81
Noranda further argues that USW’s assertion that Section 11.08 of the Plan does not
expressly exclude arbitration is misguided under Amoco.82 Quoting Section 11.08, Noranda notes
Id. at 2.
Id. at 3.
Id. at 3.
Id. at 4.
that the Section vests “absolute discretionary authority” in Plan fiduciaries to make “[r]espective
decisions, determinations, interpretations, and constructions . . . in [their] sole discretion” with
respect to Plan administration, supervision and management,” and that such actions “shall be final,
conclusive and binding on all parties.”83 Section 11.08 goes on to read that such acts by Plan
fiduciaries “shall be given the maximum possible deference allowed by law.”84 This language,
Noranda argues, tracks the language addressed by the Fifth Circuit in Amoco.85 According to
Noranda, the Fifth Circuit in Amoco rejected the very argument USW raises here: that because the
operative article does not reference the labor agreement, the provision does not exclude a particular
grievance from arbitration. Noranda argues that to the contrary, under Amoco, Section 11.08 clearly
excludes arbitration of Plan grievances because of the language used in that Section.86
Finally, Noranda contends that there is no conflict between the Labor Agreement and Article
11 of the Plan.87 First, Noranda believes that USW’s argument in this regard is flawed because it
“ignores the holding of the Supreme Court which states that ‘a party cannot be required to submit
to arbitration any dispute which he has not agreed so to submit.’”88 Because the Fifth Circuit in
Amoco held that language granting discretionary authority to plan administrators is sufficient to
exclude certain issues from arbitration, Noranda argues that there has been no willingness on its part
Id. at 6.
Id. (quoting AT&T Techs., Inc., 475 U.S. at 648).
to agree to submit pension grievances to arbitration.89 Second, Noranda points out that nothing in
the Labor Agreement prevents a Plan fiduciary from rendering final and binding determinations on
all parties.90 The one provision cited by USW, Article 9 of the Labor Agreement, “does not reference
or in any way implicate the Plan,” according to Noranda.91 Thus, “[t]here is simply no conflict
between the Labor Agreement and Article 11 of the Plan.”92
As for the issue of untimeliness, Noranda argues that it is sufficient that a party simply “take
the unequivocal position that it will not arbitrate.”93 According to Noranda, its letter to USW on
April 2, 2012 was sufficient to communicate that it would not arbitrate because it informed USW
that the grievance arose under the Plan, which does not provide for arbitration, and not under the
Labor Agreement, which provides for arbitration.94 As Noranda puts it, “it is hard to imagine any
words or conduct that could more clearly express an intent not to arbitrate than to say that a
particular dispute is not governed by the terms of the agreement containing the arbitration
provision.”95 Thus, Noranda concludes that “[b]ecause the April 4, 2012 letter constitutes an
unequivocal refusal to arbitrate, Plaintiff was required to have filed its Complaint by no later than
Id. at 7.
Id. (quoting Indep. Coca-Cola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola Bottling Co.
United, Inc., 114 F. App’x 137, 140 n.11 (5th Cir. 2004)).
Id. at 7–8.
October 4, 2012.”96 Since USW’s complaint was not filed until July 12, 2013, Noranda argues that
the claim is accordingly untimely.97
III. Standard on a Motion to Dismiss
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “the central
issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for
relief.”98 “A motion to dismiss on the basis of the pleadings alone should rarely be granted.”99
Although a court must accept the factual allegations in the pleadings as true, the plaintiff must plead
enough facts to state a claim for relief that is plausible on its face.100 “Determining whether a
complaint states a plausible claim for relief will  be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”101 “Conclusory allegations
or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.”102 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice . . . . [W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has not show[n]—that the
Id. at 8.
Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).
Madison v. Purdy, 410 F.2d 99, 100 (5th Cir. 1969).
Doe, 528 F.3d at 418 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Drs. Bethea, Moustoukas & Weaver, LLC v. St. Paul Guardian Ins. Co., 376 F.3d 399, 403 n. 7 (5th Cir.
pleader is entitled to relief.”103 Factual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all of the allegations in the complaint are true.104
Thus, “[w]hen considering a motion to dismiss, the district court must take the facts as
alleged in the complaint as true, and may not dismiss the complaint unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.”105 In evaluating the plausibility of the claim, the district court should confine itself to the
pleadings.106 “If the district court considers information outside of the pleadings, the court must treat
the motion [to dismiss] as a motion for summary judgment. Although the court may not go outside
the complaint, the court may consider documents attached to the complaint.”107
While in considering a motion to dismiss for failure to state a claim, a district court must
limit itself to the contents of the pleadings and documents attached to the complaint, the Fifth Circuit
has instructed that consideration of documents attached to the motion to dismiss may also be
considered when they are referred to in the complaint and are central to the plaintiff’s claim.108
IV. Law and Analysis
A. Consideration of Documents Outside the Pleadings in a Motion to Dismiss
As an initial matter, the Court notes that Noranda’s motion to dismiss depends in large part
on provisions in the Pension Plan that are not specifically alleged in USW’s complaint. Noranda’s
Ashcroft, 556 U.S. at 678–79 (internal quotation marks omitted).
Twombly, 550 U.S. at 555–56.
Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004).
See Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 (5th Cir. 2012).
motion to dismiss also relies on a letter it sent to USW on April 4, 2012. Neither of these documents
was attached by USW to its complaint nor referenced by it in the complaint. It is well-established
that, in deciding whether to grant a motion to dismiss, a district court may not “go outside the
complaint.”109 To take notice of documents outside of the complaint that are not otherwise judicially
noticeable is for the district court to commit reversible error.110 The Fifth Circuit has recognized one
limited exception to this rule.111 “Documents that a defendant attaches to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to
Noranda has attached the Pension Plan113 and April 4, 2012 letter114 to its motion. The
complaint, however, only refers to the Labor Agreement (attached as Exhibit “A”)115 and not the
Plan or letter.116 While it is true that Article 19 of the Labor Agreement incorporates by reference
the terms of the Plan,117 this Court is reluctant to consider on a motion to dismiss a document that
Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).
See, e.g., Rodriguez v. Rutter, 310 F. App’x 623 (5th Cir. 2009) (reversing district court’s granting of motion
to dismiss pursuant to Fed. R. of Civ. P. 12(b)(6) because district court improperly considered evidence outside the
complaint and, thus, dismissal was not warranted); see also Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011)
(quoting Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir. 2007)) (“[I]t is clearly proper in
deciding a 12(b)(6) motion to take judicial notice of matters of public record.”).
Scanlan, 343 F.3d at 536.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citation omitted).
Rec. Doc. 6-4.
Rec. Doc. 6-5.
Rec. Doc. 1-3.
Rec. Doc. 1 at ¶¶ 5–6, 9–10.
See Rec. Doc. 6-2 (quoting Article 19 as, “The Defined Benefit Pension, Defined Contribution, 401(k)
Retirement Savings Plan, VEBA and Supplemental Unemployment Benefits Programs shall be set forth in a booklet .
. . and such booklet is incorporated herein and made a part of this 2005 Labor Agreement by such reference.”).
is only mentioned in the plaintiff’s complaint by way of an attached document that references it.
Even though the Labor Agreement incorporates the Plan by reference, the relationship between the
Plan and the complaint is too attenuated to warrant consideration of the Plan on a motion to dismiss.
The fact of the matter is that USW’s complaint never mentions the Plan at all. At the very least, then,
it is fair to conclude that at this stage in the proceedings, the Plan is not “central to [plaintiff’s]
claim,” which is what this Circuit requires for judicial noticing of documents offered by a defendant
on a motion to dismiss. Accordingly, the Court may not rely upon the Pension Plan and its
provisions in deciding Defendant’s pending motion to dismiss. For the same reason, the Court may
not consider Noranda’s April 4, 2012 letter to USW. It, too, is neither mentioned in nor attached to
the complaint. Since the Plan and the letter are not specifically cited or relied upon by USW in its
complaint, it would be error to consider either in a motion to dismiss.118
For the foregoing reasons, the Court finds that when reference is made only to the pleadings,
as must be done in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), USW
has sufficiently alleged a cause of action. Accordingly,
If the parties stipulate to the language of both the Labor Agreement and the Plan and further stipulate that
there is no material fact genuinely in dispute, the Court would reconsider the filing of the motion as a converted motion
for summary judgment. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under
IT IS HEREBY ORDERED that Noranda’s motion to dismiss119 is DENIED.
NEW ORLEANS, LOUISIANA, this ____ day of March, 2014.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
Rec. Doc. 6.
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