Mendoza v. Amalgamated Transit Union International et al

Filing 13

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 7 plaintiffs' motion for a temporary restraining order be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that 6 plaintiff's motion for leave to file excess pages be, and the same hereby is, DENIED as moot. IT IS FURTHER ORDERED that 8 plaintiff's ex parte motion to withdraw plaintiff's motion for leave to file excess pages be, and the same hereby is, DENIED as moot.IT IS FURTHER ORDERED that 12 plaintiff's motion to strike be, and the same hereby is, GRANTED. The clerk shall strike 11 defendants' statement from the record in this case. Signed by Judge James C. Mahan on 9/28/17. (Copies have been distributed pursuant to the NEF - MR)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 JOSE MENDOZA JR., 8 Plaintiff(s), 9 10 11 Case No. 2:17-CV-2485 JCM (CWH) ORDER v. AMALGAMATED TRANSIT UNION INTERNATIONAL, et al., Defendant(s). 12 13 Presently before the court is plaintiff Jose Mendoza Jr.’s motion for a temporary restraining 14 15 order. (ECF No. 7).1 Also before the court is plaintiff’s motion for leave to file excess pages (ECF No. 6) and 16 17 ex parte motion to withdraw plaintiff’s motion for leave to file excess pages, (ECF No. 8). Also before the court is plaintiff’s motion to strike defendants’ statement. (ECF No. 12). 18 19 20 21 I. Facts The factual background of this case spans seven years. The court briefly summarizes plaintiff’s allegations as relevant to the instant motion for temporary restraining order. 22 23 24 1 25 26 27 28 James C. Mahan U.S. District Judge Plaintiff has not filed a motion for preliminary injunction. Plaintiff styles his motion for a temporary restraining order alternatively as a motion for a preliminary injunction. See (ECF No. 7). This does not comport with the Local Rules. See LR IC 2-2(b) (“For each type of relief requested or purpose of the document, a separate document must be filed and a separate event must be selected for that document.”). This local rule serves an important function in the context of temporary restraining orders and preliminary injunctions, as although the motions contain similarities, there are different standards for granting each motion. Compare Fed. R. Civ. P. 65(a) (requirements for granting a preliminary injunction), with Fed. R. Civ. P. 65(b) (requirements for granting a temporary restraining order). 1 Plaintiff Mendoza was the president of Amalgamated Transit Union Local 1637 (“Local 2 1637”), which is a local union that is affiliated with Amalgamated Transit Union International 3 (“International”). 4 Between 2010 and 2016, plaintiff had multiple disputes with International, many of which 5 revolved around the appropriate way to read Local 1637’s bylaws. Two primary disagreements 6 between plaintiff and International concern the appropriate rate of pay for the president of Local 7 1637 and whether the president could designate the secretary-treasurer position as less than full- 8 time. 9 Article 4 of Local 1637’s bylaws governs the president’s rate of pay. (ECF No. 7-11). 10 Plaintiff asserts that the version of the 2012 local bylaws sent to him by International president 11 Lawrence Hanley reads “The President/Business Agent shall be paid at a daily rate of 8 hours 12 times the highest hourly rate paid to an employee in their respective job classification for 40 hours 13 per week to perform duties of the office.” (ECF No. 7-11). Plaintiff contends that International 14 has the wrong version of Article 4 on file. (ECF No. 7). Plaintiff believes that the correct version 15 of Article 4 omits the term “respective.” (ECF No. 7). Plaintiff thus reads the bylaw language as 16 entitling plaintiff to the highest rate of pay of any employee in the union (which is a mechanic’s 17 rate). (ECF No. 7). Plaintiff alleges that defendant International attempted to limit plaintiff’s pay 18 to the highest hourly rate paid to an employee in plaintiff’s job classification of driver. (ECF No. 19 7). 20 The dispute over whether president could designate the secretary-treasurer position as less 21 than full time turns on whether Local 1637 ever adopted amendments to its bylaws. (ECF No. 7). 22 Plaintiff contends that Local 1637’s executive board’s adopted bylaws that would allow the 23 president to designate the secretary-treasurer as less than full time. (ECF No. 7). Plaintiff alleges 24 that defendant International would not approve of the adopted bylaws. (ECF No. 7). 25 Plaintiff alleges that he took proactive measures to resolve the outstanding issues with 26 International. On December 31, 2016, plaintiff agreed to repay Local 1637 for the alleged 27 overpayments he received as president. (ECF No. 7). Plaintiff asserts that he continues to make 28 these payments without delay. (ECF No. 7). James C. Mahan U.S. District Judge -2- 1 On January 14, 2017, plaintiff sent a correspondence to Hanley requesting information on 2 the proper way to amend the bylaws to avoid future conflicts with International. (ECF No. 7). 3 Plaintiff alleges that multiple emails were exchanged, during which plaintiff explained that quorum 4 was often not met at Local 1637’s meetings and the Executive Board was overwhelmingly in favor 5 of amending the bylaws and planned on doing so pursuant to Section 13.2 of the ATU 6 Constitution.2 (ECF No. 7). Hanley expressed concern regarding the potentially anti-democratic 7 nature of plaintiff’s proposed method of amending the bylaws and suggested that Section 13.2 did 8 not allow for amendment in the manner that plaintiff had described. (ECF No. 7). 9 On January 30, 2017, Hanley notified plaintiff that International would request an audit of 10 Local 1637 by an internal auditor (Tyler Home) with the assistance of International Vice President 11 James Lindsay. 12 In February and March of 2017, plaintiff and Hanley sent multiple emails to each other 13 related to the proposed amendments (amongst other things). (ECF No. 7). Plaintiff took the 14 position that Local 1637’s executive board had validly adopted the amendments. (ECF No. 7). 15 Hanley took the position that the amendments were not validly adopted. (ECF No. 7). 16 On March 10, 2017, Home and Lindsay produced their internal audit report. (ECF No. 7). 17 The report found that Mendoza committed financial malfeasance.3 (ECF No. 7). On April 10, 18 19 2 20 26 The bylaws and rules of LUs and amendments thereto, to be legal and effective, shall be read at two (2) regular meetings of the LU and posted at appropriate locations with notice of the meeting at which the second reading shall occur before adoption and it shall require a two-thirds vote of the membership in attendance and voting at the second union meeting to adopt. After posting the proposed bylaws, rules or amendments for adoption and failing to obtain a quorum at two (2) consecutive meetings of the LU, the local executive board shall have the power, unless otherwise restricted by law, by a two-thirds vote of the total membership of the executive board to adopt such proposals on behalf of the LU. Such a vote, if taken, shall dispose of the question and stand as the vote of the LU membership. After adoption by the LU the bylaws, rules or amendments so adopted shall be forwarded to the IP for approval and must have the approval of the IP before going into effect. 27 (ECF No. 7-28 at 58) (emphasis added). 21 22 23 24 25 28 James C. Mahan U.S. District Judge Section 13.2 of the ATU Constitution reads, in relevant part, Plaintiff’s motion cites an independent audit report, prepared by Miller Kaplan and Arase, which states that management corrected all non-trivial misstatements in their 2015 financial 3 -3- 1 2017, Hanley removed plaintiff from his position as president and imposed a trusteeship over Local 2 1637. Hanley’s trusteeship order states, in part: 3 It has come to the attention of this office that there are several issues severely impacting the effective administration and functioning of Local 1637. These problems include, but are not necessarily limited to, the following: 1) overpayment to the president/business agent in the form of salary' and vacation pay; 2) multiple instances or financial malpractice and/or malfeasance including failure to complete required audits, failure to authenticate expenses for purposes or reimbursement, and an unauthorized withdrawal of cash to pay officers' salaries; 3) impediments to democratic functioning, resulting in chronic failure to achieve quorums at membership meetings; 4) failure to timely process grievances; and 5) failure to comply with the directive of the International President with respect to the role and responsibilities of the financial secretary-treasurer. 4 5 6 7 8 9 (ECF No. 7-39). 10 The trusteeship order appointed Lindsay as trustee over Local 1637. (ECF No. 7-39). 11 Hanley appointed International representative Antonette Bryant as hearing officer for the 12 trusteeship hearing. (ECF No. 7). 13 On April 26, 2017, Hanley sent a notice of trusteeship hearing to Local 1637 and to 14 plaintiff. (ECF No. 7-42). On May 9th and 10th, 2017, Lindsay held the trusteeship hearing. 15 Plaintiff alleges that two members of International’s General Counsel, Keira McNett and Daniel 16 Smith, were present at the meeting. Plaintiff alleges that these attorneys, 17 [A]ssist[ed] Bryant during this Trusteeship hearing in denying Plaintiff Mendoza due process in the following ways, which include but are not limited to: (1) refusing to allow Mendoza to ask relevant questions during cross-examination; (2) denying Mendoza his right to cross-examine some of ATU’s witnesses; (3) presenting biased interested witnesses; (4) failing to object to Bryant’s status as hearing officer despite being an employee of Hanley; (5) presenting false evidence and testimony; and (6) failing to review the evidence and identify clearly exculpatory evidence at the hearing, which was their job based on their own representations at the hearing. 18 19 20 21 (ECF No. 7). Bryant subsequently ratified the trusteeship. (ECF No. 7). 22 Plaintiff alleges that Lindsay has requested that criminal charges be brought against 23 plaintiff for the alleged misappropriation of union funds. (ECF No. 7). 24 II. Legal Standard 25 Under Federal Rule of Civil Procedure 65, a court may issue a temporary restraining order 26 when the moving party provides specific facts showing that immediate and irreparable injury, loss, 27 28 James C. Mahan U.S. District Judge reports and that none of the misstatements were material to the 2015 financial statements when considered holistically. -4- 1 or damage will result before the adverse party’s opposition to a motion for preliminary injunction 2 can be heard. Fed. R. Civ. P. 65. “Injunctive relief is an extraordinary remedy and it will not be 3 granted absent a showing of probable success on the merits and the possibility of irreparable injury 4 should it not be granted.” Shelton v. Nat’l Collegiate Athletic Assoc., 539 F.2d 1197, 1199 (9th 5 Cir. 1976). 6 Courts must consider the following elements in determining whether to issue a temporary 7 restraining order and preliminary injunction: (1) a likelihood of success on the merits; (2) 8 likelihood of irreparable injury if preliminary relief is not granted; (3) balance of hardships; and 9 (4) advancement of the public interest. Winter v. N.R.D.C., 555 U.S. 7, 20, 129 S.Ct. 365, 374 10 (2008). The test is conjunctive, meaning the party seeking the injunction must satisfy each 11 element. However, “‘serious questions going to the merits’ and a balance of hardships that tips 12 sharply towards the [movant] can support issuance of a preliminary injunction, so long as the 13 [movant] also shows that there is a likelihood of irreparable injury and that the injunction is in the 14 public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) 15 (citing Winter, 129 S.Ct. at 392). 16 III. Discussion 17 i. 18 Plaintiff’s motion for a temporary restraining order will be denied. Plaintiff fails to meet 19 Temporary restraining order the requirements for ex parte injunctive relief. 20 Most importantly, the motion does not attempt to describe how plaintiff could be harmed 21 before the defendants can be heard in opposition. Although plaintiff’s motion contains references 22 to harm that could occur as a result of defendants’ conduct, the motion does not adequately explain 23 whether the alleged harm could occur before defendants have an opportunity to respond to 24 plaintiffs claim. Plaintiff has therefore not demonstrated that a temporary restraining order is 25 appropriate on these facts. See Fed. R. Civ. P. 65(b). 26 Further, plaintiff’s motion does not demonstrate a likelihood of success on the merits of 27 plaintiff’s claims. Plaintiff’s section discussing his likelihood of success on the merits is dedicated 28 to describing and debunking the defendants’ five listed reasons for removing plaintiff from his James C. Mahan U.S. District Judge -5- 1 union office and for imposing a trusteeship over Local 1637. See (ECF No. 7). Plaintiff’s motion 2 does not discuss any relevant cause of action or why plaintiff is likely to succeed on that particular 3 cause of action. See (ECF No. 7). Plaintiff’s motion fails to show a likelihood of success on the 4 merits and will be denied on these grounds. See Winter, 129 S.Ct. at 392. 5 Finally, the public interest is decidedly against granting ex parte injunctive relief in this 6 case. Here, an injunction would greatly upset the status quo by re-instating a suspended executive 7 board and president and dissolving a trusteeship before defendants can explain their actions. 8 Plaintiff has not made a strong enough showing in his motion to justify such extreme court action 9 prior to hearing the defendants’ position. See Shelton, 539 F.2d at 1199. 10 ii. Motion to strike 11 Plaintiff filed a motion to strike defendants’ response to plaintiff’s motion. (ECF No. 12). 12 Non-moving parties are not permitted to file “statements” regarding ex parte motions. Thus, the 13 court did not review defendants’ filing, and will instruct the clerk to strike it from the record. 14 IV. Conclusion 15 Plaintiff has not shown this court that the extraordinary remedy of an ex parte injunction 16 is warranted on these facts. The court will therefore deny plaintiff’s motion for a temporary 17 restraining order (ECF No. 7). 18 Accordingly, 19 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiffs’ motion for a 20 temporary restraining order (ECF No. 7) be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that plaintiff’s motion for leave to file excess pages (ECF 21 22 No. 6) be, and the same hereby is, DENIED as moot. IT IS FURTHER ORDERED that plaintiff’s ex parte motion to withdraw plaintiff’s motion 23 24 for leave to file excess pages (ECF No. 8) be, and the same hereby is, DENIED as moot. 25 ... 26 ... 27 ... 28 ... James C. Mahan U.S. District Judge -6- 1 IT IS FURTHER ORDERED that plaintiff’s motion to strike (ECF No. 12) be, and the 2 same hereby is, granted. The clerk shall strike defendants’ statement (ECF No. 11) from the record 3 in this case. 4 5 6 DATED September 28, 2017. __________________________________________ UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -7-

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?