Garity v. APWU-AFl-CIO et al

Filing 126

ORDER Granting 91 and 95 Motions to Dismiss. The Clerk of Court shall forthwith enter judgment in favor of Defendant APWU-AFL-CIO and against Plaintiff Rosemary Garity. Signed by Judge Philip M. Pro on 1/14/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ROSEMARY GARITY,
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Plaintiff,

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vs.
APWU-AFL-CIO, et al.,

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Defendants.
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2:11-CV-01109-PMP-CWH
ORDER

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On January 8, 2013, the Court conducted a hearing regarding Defendant

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American Postal Workers Union’s fully briefed Motions to Dismiss (Docs. #91 &

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#95). For the reasons set forth in Defendants Motions, and having considered the

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arguments presented at the hearing conducted, the Court finds Defendant’s Motions

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to Dismiss must be granted.

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Specifically, by its Motion to Dismiss filed October 10, 2012 (Doc. #91),

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Defendant APWU seeks dismissal of the discrimination claims contained in

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Plaintiff’s Amended Complaint on the basis of issue preclusion resulting from the

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decision of the Honorable Kent J. Dawson in Case No. 2:11-cv-01110-KJD-CWH.

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Defendant correctly argues that on July 6, 2011, Plaintiff filed two separate

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complaints, the instant case before this Court assigned Case No. 2:11-cv-01109-

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PMP-CWH and the other assigned to Judge Dawson under Case No. 2:11-cv-01110-

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KJD-CWH. Defendant also argues correctly that while the claims made by Plaintiff

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in the two separate cases are not identical in every respect, each requires that

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Plaintiff demonstrate that Defendant APWU breached its duty of fair representation

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and that its actions were “arbitrary, discriminatory, or in bad faith.” On July 18,

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2012, Judge Dawson entered an Order in Case No. 2:11-cv-01110-KJD-CWH

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granting Defendant APWU’s Motion to Dismiss Amended Complaint on the specific

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ground that Plaintiff had failed to demonstrate a breach of the duty of fair

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representation essential to her discrimination claims. Defendant correctly argues that

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in this case, Defendant’s First, Second, Fourth, and Fifth Claims must be dismissed

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because each requires Plaintiff to prove the same breach of the duty of fair

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representation arising from a common nucleus of operative facts. Under the

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Doctrine of Issue Preclusion, Defendant maintains Plaintiff should be barred from re-

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litigating this issue already adjudicated adversely in the related case. Clark v. Bear

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Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992). The Court agrees.

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By its separate Motion to Dismiss (Doc. #96) filed October 22, 2012,

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Defendant seeks dismissal of Plaintiff Garity’s negligent retention claim based on the

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same argument of Issue Preclusion flowing from the decision of Judge Dawson in

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the related case, but adds an additional argument in support of dismissal.

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Specifically, Defendant argues there is no legal basis in either state of federal law to

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support a claim of negligent retention against a labor union such as Defendant. The

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Court has reviewed the many case tendered by Defendant which support Defendant’s

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argument that a common law negligent retention claim derives from the “special

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relationship” between an employer and employee, but not between a union member

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and a labor organization. Indeed, Defendant argues applying the negligent retention

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doctrine in the context of this case would contravene the well-settled federal policy

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of non-interference with labor union administration. Rockwell v. Sun Harbor Budget

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Suites, 925 P.2d 1175 (Nev. 1996). Again, the Court agrees. Moreover, the Court

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finds that Plaintiff’s common law negligent retention claim is preempted by Section
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301 of the Taft-Harley Act, 39 U.S.C. § 185(a).
IT IS THEREFORE ORDERED that Defendant APWU’s Motions to
Dismiss (Docs. #91 & #95) are GRANTED.
It further appearing that this ruling resolves all remaining claims between
all Parties in this case, and good cause appearing,
IT IS ORDERED that the Clerk of Court shall forthwith enter judgment in
favor of Defendant APWU-AFL-CIO and against Plaintiff Rosemary Garity.

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DATED: January 14, 2013.

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PHILIP M. PRO
United States District Judge

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