Cummings v. MVM, Inc. et al
MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 11/18/2016. (kw2s, Deputy Clerk)(c/m 11.18.16)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. RDB-16-1868
SECURITY, POLICE, AND FIRE
AMERICA, LOCAL 555, et al.,
Civil Action No. RDB-16-1869
MVM, INC., et al.,
Plaintiff Annette Cummings (“plaintiff” or “Cummings”) has filed a pro se Complaint
alleging breach of her employment contract by defendant MVM, Inc. (“MVM”), her former
employer, and International Union, Security, Police and Fire Professionals of America and
its Local No. 555 (“SPFPA”), her union representative, and certain named agents of these
(ECF No. 1.)
Originally filed as two separate Complaints, the cases were
consolidated on June 13, 2016. (ECF No. 4.)
Now pending before this Court are two Motions to Dismiss. SPFPA and Gordon
Gregory have filed a Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure (“SPFPA’s Motion”). (ECF No. 12.) MVM and Dario
Marquez have filed a Motion to Dismiss pursuant to Rules 12(b)(2), 12(b)(4), 12(b)(5), and
12(b)(6) of the Federal Rules (“MVM’s Motion”). (ECF No. 31.)1 The parties’ submissions
have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For
the reasons stated below, SPFPA’s Motion (ECF No. 12) is GRANTED, and MVM’s
Motion (ECF No. 31) is also GRANTED.
This Court accepts as true the facts alleged in the plaintiff’s complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). The facts giving rise to plaintiff’s Complaint
were previously set forth in this Court’s Memorandum Opinion dated June 28, 2016 (RDB16-216, ECF No. 36) and are repeated in part below:
“At some point prior to July 7, 2015, Plaintiff Annette Cummings was terminated
from her employment at MVM, Inc., a private security contractor, after an
allegedly unintentional discharge of her firearm. Cummings subsequently filed an
unfair labor practice charge with her local chapter of Defendant National Labor
Relations Board—Region 5—on July 22, 2015.
After conducting an investigation of Plaintiff’s allegations, the Regional
Director of Region 5 concluded that neither charge had the requisite evidence to
proceed to prosecution. The Regional Director accordingly notified Cummings of
Ms. Cummings has also filed a series of motions, unrelated to the pending dispositive motions, which are
also ripe for the Court’s resolution. (ECF Nos. 18, 24, 27, 28, 30, 36, 38, 42, and 43.) In light of the result
reached herein, however, these motions are DENIED AS MOOT.
the dismissals of Board Case Nos. 05-CA-159905 and 05-CB-156648 on October
27 and 28, 2015, respectively. Cummings subsequently appealed both dismissals
to the General Counsel of the Board. The General Counsel denied the appeals
after a review “did not disclose that either [MVM or the Union] violated the
[National Labor Relations] Act.” On December 2, 2015, Plaintiff sought
reconsideration of the denial, but the General Counsel again denied her appeals.
Specifically, the General Counsel stated that the “decision to discipline [the
Plaintiff] was based solely on the firearm incident.” Neither MVM nor the Union
was deemed to have violated the Act for their alleged actions.
Cummings v. Nat’l Labor Relations Bd., No. RDB-16-216 (ECF No. 36), 2016 WL 3523573, at
*4 (D. Md. June 28, 2016) (internal references omitted).
After this Court dismissed
Cummings’ claims against the National Labor Relations Board (“NLRB”), Cummings filed
several motions, including a Motion for Reconsideration, challenging the dismissal. These
motions were denied on October 19, 2016. (RDB-16-216, ECF Nos. 55, 56.)
The case now pending before the Court is based on the same underlying facts, but
seeks relief against different parties.
STANDARDS OF REVIEW
Motion to Dismiss Pursuant to Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for
lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought
by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This
challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the
allegations in the complaint are insufficient to establish subject matter jurisdiction, or a
factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not
true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With
respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter
jurisdiction “where a claim fails to allege facts upon which the court may base jurisdiction.”
Davis, 367 F. Supp. 2d at 799.
Where the challenge is factual, “the district court is entitled to decide disputed issues
of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. “[T]he court may
look beyond the pleadings and ‘the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine whether in fact subject
matter jurisdiction exists.’” Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003)
(citation omitted). The court “may regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings without converting the proceeding to one for
summary judgment.” Velasco v. Gov’t of Indon., 370 F.3d 392, 398 (4th Cir. 2004); see also
Sharafeldin v. Md. Dep’t of Pub. Safety & Corr. Servs., 94 F. Supp. 2d 680, 684-85 (D. Md. 2000).
A plaintiff carries the burden of establishing subject matter jurisdiction. Lovern v. Edwards,
190 F.3d 648, 654 (4th Cir. 1999).
Motion to Dismiss Pursuant to Rule 12(b)(6)
Under Federal Rule of Civil Procedure 8(a)(2), a plaintiff is required to plead “a short
and plain statement of the claim showing that the pleader is entitled to relief.” The purpose
of this requirement is to “to give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation and internal quotations omitted). Consequently, “a formulaic recitation of the
elements of a cause of action will not do.” Id. (citation omitted). Similarly, “an unadorned,
the-defendant-unlawfully-harmed-me accusation” is insufficient. Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 1949 (2009).
Rather, to withstand 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,” meaning the court could draw “the reasonable inference that
the defendant is liable for the conduct alleged.” Id. (internal quotations and citation omitted).
A pro se litigant’s complaint should not be dismissed unless it appears beyond doubt
that the litigant can prove no set of facts in support of his claim that would entitle him to
relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, a plaintiff’s status as
pro se does not absolve him of the duty to plead adequately. See Stone v. Warfield, 184 F.R.D.
553, 555 (D. Md. 1999) (citing Anderson v. Univ. of Md. Sch. Of Law, 130 F.R.D. 616, 617 (D.
Md. 1989), aff’d, 900 F.2d 249, 1990 WL 41120 (4th Cir. 1990)). The facts of this case were
set forth fully in this Court’s Memorandum Opinion of June 28, 2016. See Cummings, 2016
WL 3523573, at 2-3.
Dismissal Pursuant to Rule 12(b)(1)
SPFPA argues that this Court lacks subject matter jurisdiction over this case, as
SPFPA is an unincorporated labor union which, under United Steelworkers of Am., AFL-CIO v.
R. H. Bouligny, Inc., 382 U.S. 145, 153, 86 S. Ct. 272, 276, 15 L. Ed. 2d 217 (1965), is not
subject to diversity jurisdiction. (ECF No.12-1 at 3.) While SPFPA further asserts that
Cummings “does not attempt to base jurisdiction on a federal question,” SPFPA’s own brief
acknowledges that the pro se plaintiff’s Complaint might be construed liberally as alleging a
breach of the union’s duty under the Labor Management Relations Act (“LMRA”), 29
U.S.C. § 185. (Id. at 4, 8.) As claims brought pursuant to the LMRA undoubtedly involve a
federal question and are thus within this Court’s subject matter jurisdiction, SPFPA’s Motion
to Dismiss will be denied insofar as it challenges this Court’s subject matter jurisdiction.
Dismissal Pursuant to Rule 12(b)(6)
In her original Complaint, Cummings recounted the facts giving rise to her
termination and alleged that: “[t]he employer and/or labor union did not follow the
progressive disciplinary rules and regulations policy. My rights was [sic] denied as well as
violated. I fill [sic] that I was unfairly treated and totally discriminated against.” (ECF No. 1
at 7.) In the letter accompanying her pro se Complaint, Cummings further alleged that the
NLRB, MVM, and SPFPA “violated [her] rights under the National Labor Relations Act,
and breached of an employee’ contract,” [sic] by failing to complete a thorough investigation
of her termination. (ECF No. 1-2 at 1.) In her supplement to the Complaint, Cummings
again recounted the facts resulting in her termination, and faulted the NLRB for failing to
properly investigate her claims. (ECF No. 14.)
This Court has previously dismissed with prejudice plaintiff’s Complaint against the
NLRB. Cummings v. Nat’l Labor Relations Bd., No. RDB-16-216 (ECF No. 36), 2016 WL
3523573 (D. Md. June 28, 2016). To the extent that those allegations form the basis of the
Complaint now before the Court, plaintiff’s Complaint must be dismissed.
Plaintiff fails, moreover, to state with any specificity what conduct by SPFPA, MVM,
or their agents which might allow her purported breach of contract and/or statutory claims
to survive dismissal. Plaintiff already has been advised by the Court that in order to survive
dismissal, she needed to “describe how each Defendant is involved in this matter; and
provide dates for the alleged conduct.” (ECF No. 4 at 3.) Having failed to provide any
additional details regarding defendants’ alleged misconduct, plaintiff’s Complaint is
DISMISSED WITH PREJUDICE.2 Accordingly, SPFPA’s Motion to Dismiss (ECF No.
12) is GRANTED and MVM’s Motion (ECF No. 31) is GRANTED.3
For the reasons stated above, SPFPA’s Motion (ECF No. 12) is GRANTED; MVM’s
Motion (ECF No. 31) is GRANTED; Cummings’ Motions (ECF Nos. 18, 24, 27, 28, 30, 36,
38, 42, and 43) are DENIED AS MOOT; and this case is DISMISSED WITH
A separate Order follows.
Date: November 18, 2016
Richard D. Bennett
United States District Judge
The Court also notes that even if plaintiff stated a plausible claim under the Labor Management Relations
Act, it would still be barred by the six month statute of limitations under Section 301 of the LMRA. See Del
Costello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983).
In light of the result reached herein, the Court need not reach defendants’ other arguments in support of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?