GILLESPIE v. ACME MARKETS, INC. et al

Filing 13

OPINION. Signed by Judge Joseph H. Rodriguez on 09/30/2015. (db, )

1

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAWN GILLESPIE,
Plaintiff,

:

ACME MARKETS, INC. and UNITED
FOOD AND COMMERCIAL WORKERS,
LOCAL 1360,
Defendant.

Hon. Joseph H. Rodriguez

:

v.

:

Civil Action No. 14-7779

:

OPINION

:
:

These matters are before the Court on Defendants’ separate Motions to Dismiss,
both filed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has
considered the submissions of the parties, including the numerous attachments to the
briefs. 1 For the reasons that follow, the Court is notifying the parties of its intent to
convert the motions to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)
(6) to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56.
Plaintiff Dawn Gillespie brings this action individually. The Complaint alleges
bare claims of wrongful termination and breach of contract against Defendants Acme
Markets, Inc. (“Acme”) and United Food and Commercial Workers, Local 1360 (“Local

1

Plaintiff failed to timely file an opposition. The present motions were filed on January 5, 2015. Opposition was
due on January 20, 2015. On February 5, 2015, counsel for Plaintiff filed a request for additional time to file
opposition papers. Dkt. No. 8. Counsel was informed by telephone that Defendants’ consent was necessary for an
extension. Counsel never filed an opposition. Then on June 29, 2015, the Court issued an Order requiring Plaintiff
to show cause in writing why the motions should not be considered unopposed. Dkt. No. 9. The Court gave a
response deadline of July 6, 2015. Plaintiff filed opposition on August 10, 2015. The one and a half page letter
issued in opposition fails to adequately address the issues raised by the Defendants and attaches a letter from the
arbitrator.

1

2

1360”) (Count I) and a claim of breach of contract and breach of fiduciary duty against
Local 1360 (Count II) 2. The Complaint contains vague factual allegations, but relates to
Gillespie’s discharge from Acme as a full time cashier following allegations that she had
stolen money from her cash register. 3 Gillespie is a member of Local 1360 and the
union filed a timely grievance on her behalf following the termination.
The parties went to arbitration and on November 2, 2013, the arbitrator issued a
written decision which awarded to Gillespie reinstatement without loss of seniority and
with full back pay. See Acme, Ex. 1. It appears that Gillespie has not been reinstated
because, according to Acme, she has not presented proof that she is medically fit to
work. Acme attaches a note, dated January 14, 2014, from Dr. Andrew Cogan that
states that Gillespie was unable to return to work and that she has been unable to work
since September, 2012. In its brief, Acme states that Gillespie never provided a letter
which medically clears her for work. Acme also attaches court records from the
Superior Court of New Jersey which detail the procedural history of this case and
includes Plaintiff’s previous failed attempts to pursue litigation in the state courts on the
present claims. 4

Count II is titled “Union’s Breach of Contract and Fiduciary Duty.” See Complaint, ¶11.
As such, the Court construes this claim as against only Local 1360.
3 “Although a district court may not consider matters extraneous to the pleadings, a
document integral to or explicitly relied upon in the complaint may be considered
without converting the motion to dismiss into one for summary judgment.” U.S. Express
Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.2002) (internal quotation marks and
citations omitted) (emphasis deleted). In this case, the arbitration award is integral to
and referenced in the Complaint. As a result, the Court will look to the award to frame
the present issue and provide context to the issue, which is lacking in the Complaint.
4 The Third Circuit has held that a court hearing a motion to dismiss may take judicial
notice of a judgment in another case but not the facts therein. S. Cross Overseas
Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 413 (3d Cir. 1999); see
also Brody v. Hankin, 145 F. App'x 768, 772 (3d Cir. 2005).
2

2

3

Acme claims that the complete arbitration rule announced in Union Switch &
Signal Div. Am. Standard Inc. v. United Elec., Radio and Machine Workers of Am., Local
610, 900 F.2d 608 (3d Cir. 1990) requires that arbitration be fully exhausted before
jurisdiction lays in the district court. Here, although styled as a breach of contract
action, Acme argues that Plaintiff’s complaint seeks to implement the arbitration award.
Ostensibly, the breach relates to Acme’s failure to reinstate Gillespie and comply with
the arbitrator’s award. The arbitrator, in his written decision, retained jurisdiction over
the implementation of the remedy. See Acme Ex. 1. For this reason, and because this is
Plaintiff’s second attempt to bypass the arbitral process, Acme seeks dismissal and an
award of attorney’s fees. Acme argues Gillespie’s claim should be presented to the
arbitrator.
Local 1360 moves for dismissal on the ground that Plaintiff’s claims are timebarred. Although styled as a breach of contract and a breach of fiduciary duty claim,
Local 1360 argues that Gillespie’s claims must be considered as a “hybrid Section
301/Duty of Fair Representation Claim” arising out of both Section 301 of the National
Labor Relations Act (“NLRA”), 29 U.S.C. § 185 and the judicially created doctrine of the
union’s Duty of Fair Representation. Vaca v. Spies, 386 U.S. 171, 178-9, n. 3 (1967). A
claim that a union breached the duty of fair representation must be bought no later than
six months from the date upon which the plaintiff knew or reasonably should have
known of the union’s alleged breach. Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d
Cir. 1986). Under the facts of this case, Local 1360 argues that Plaintiff’s claim is timebarred.

3

4

In support, Local 1360 attaches two exhibits to its brief that may demonstrate
when Plaintiff knew or should have known about the union’s intention to no longer
pursue Gillespie’s claim. Local 1360 also claims that there are no facts that support
tolling the limitations period and, therefore, Gillespie’s claim is time-barred.
A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts,
taken as true, fail to state a claim. Fed. R. Civ. P. 12(b)(6). When deciding a motion to
dismiss pursuant to Rule 12(b)(6), ordinarily only the allegations in the complaint,
matters of public record, orders, and exhibits attached to the complaint, are taken into
consideration. See Chester County Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808,
812 (3d Cir. 1990). It is not necessary for the plaintiff to plead evidence. Bogosian v.
Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). 351 (3d Cir. 2005) (“[A] court need not
credit either ‘bald assertions’ or ‘legal conclusions’ in a complaint when deciding a
motion to dismiss.”)).
The Defendants’ motions ask the Court to consider documents outside of the
pleadings. Specifically, Defendants attach, inter alia, a doctor’s note, correspondence
between the parties’ counsel, a letter from the arbitrator, and an affidavit from a Local
1360 representative. All of the documents are necessary to frame the issues and lend
support to the arguments advanced in support of dismissal. In addition, Defendants’
motions both ask the Court to resolve factual issues; i.e., when the statute of limitations
began to run on Plaintiff’s claim against Local 1360 and whether the arbitration has
been exhausted. With the exception of the arbitrator’s decision, which may be
considered as integral to the complaint, consideration of documents outside of the
pleadings on a motion to dismiss is prescribed by Fed. R. Civ. P. 12 (b). As a result, the
Court will convert the Defendants’ motions to dismiss to motions for summary
4

5

judgment. See Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 517 (5th Cir. 1998)
(“When matters outside the pleadings are presented to and not excluded by the district
court, the district court must convert a motion to dismiss into a motion for summary
judgment.”); Greer v. Smith, 2003 WL 1090708, at *1 (3d Cir. Mar.10, 2003) (“the
District Court considered material outside of the pleadings and, therefore, should have
converted the motion for dismissal to a summary judgment motion, allowing the
plaintiff an opportunity for appropriate discovery and a reasonable opportunity to
present all material made pertinent to the motion.”).
In the interest of procedural fairness, the parties will have reasonable
opportunity to present all materials relevant to a summary judgment motion on the
issues contained herein. See Fed. R. Civ. P. 12(d). The motions to dismiss must be
denied.
An appropriate Order shall issue.
Dated: September 30, 2015

s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

5