Milk Wagon Drivers and Dairy Employees v. Elmhurst Dairy, Inc. et al
ORDER granting 8 Motion to Dismiss; granting 15 Motion to Dismiss for Failure to State a Claim. Ordered by Judge I. Leo Glasser on 4/17/2014. (Parachini, Alexander)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MILK WAGON DRIVERS & DAIRY
MEMORANDUM AND ORDER
- against -
13 CV 5083 (ILG) (VVP)
ELMHURST DAIRY, INC., et al.,
GLASSER, United States District Judge:
Plaintiffs, a group of former employees of Elmhurst Dairy, Inc. (“Elmhurst”),
bring this action against Elmhurst and Milk Wagon Drivers and Dairy Employees, Local
584, International Brotherhood of Teamsters, the union representing certain employees
of Elmhurst (the “Union,” and together with Elmhurst, “Defendants”), seeking to vacate
the award issued in an arbitration between Elmhurst and the Union. Specifically,
plaintiffs assert that Elmhurst violated its collective bargaining agreement with the
Union, that the Union failed to fairly represent plaintiffs at the arbitration, and that
Defendants colluded to mislead the arbitrator and manipulate the arbitration process.
Currently before the court are motions from each of the Defendants to dismiss the
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons that follow, both of the motions are GRANTED.
Facts & Procedural History
Except where otherwise noted, the following facts are taken from Plaintiffs’
verified petition, Dkt. No. 1. Ex. A (the “Petition”), and other documents the Court may
consider, and are accepted as true for purposes of deciding this motion. Plaintiffs are 42
former senior employees of Elmhurst and members of the Union. Petition ¶¶ 1–2. 1
Plaintiffs were laid off by Elmhurst on September 16, 2012. Petition ¶ 11; Award and
Opinion of Arbitrator Jeffrey B. Tener, dated May 28, 2013 [Dkt. No. 16-2] (the
“Arbitrator’s Decision”) at 7. The Union challenged the layoffs in arbitration for
violating the seniority provisions of the collective bargaining agreement between
Elmhurst and the Union (the “CBA”). Arbitrator’s Decision at 1. The arbitration
resulted in a decision in favor of Elmhurst. Id. at 18.
At the heart of the Petition is Plaintiffs’ allegation that Elmhurst and the Union
worked together to undermine the arbitration process and render it a “charade.”
Petition ¶ 8. Because of this collusion, the Arbitrator’s Decision “was based on wrong,
inaccurate and incomplete information.” Id. ¶ 29. The arbitrator accordingly failed to
consider a number of relevant factors and so decided the matter incorrectly. Id. ¶¶ 15–
17, 26–29. In support of these allegations, Plaintiffs catalog a number of “blatant
inaccuracies” in the Arbitrator’s Decision. Id. ¶ 13.
In addition to its conduct during the arbitration, Plaintiffs refer to a number of
other instances when the Union breached its duty to fairly represent Plaintiffs, including
misappropriating a clothing allowance, id. ¶ 13(i), and secretly agreeing to increase the
length of the probationary period for Elmhurst employees, id. ¶ 13(o). And beyond the
layoffs, Plaintiffs list additional instances of Elmhurst breaching the CBA, including
leasing work to non-union subsidiaries. Id. ¶ 7.
Plaintiffs initiated this action by filing the Petition in the Supreme Court of the
State of New York, County of Queens on September 3, 2013. See Dkt. No. 1. Defendants
As discussed below, the number and identity of the Plaintiffs was not made clear in the Petition and only
addressed for the first time in Plaintiffs’ Oppositions. Indeed, the Petition in general contains few details
about the factual background of Plaintiffs’ claims—the layoffs and subsequent arbitration.
filed a joint notice of removal in this court on September 12, 2013. Id. On October 11,
2013, Plaintiffs moved to remand the case to New York state court pursuant to 28 U.S.C.
§ 1447, Dkt. No. 14, which motion was denied by Memorandum and Order dated
December 26, 2013, Dkt. No. 25. Elmhurst and the Union filed motions to dismiss the
Petition on September 26, 2013 and October 15, 2013, respectively. Dkt. Nos. 10
(“Elmhurst Mem.”); 17 (“Union Mem.”). Plaintiffs filed oppositions to each motion on
March 13, 2014. Dkt. Nos. 29 (“Pls.’ Elmhurst Opp’n”); 31 (“Pls.’ Union Opp’n”).
Defendants filed their replies on March 27, 2014, Dkt. No. 34 (“Union Reply”), and
March 31, 2014 (“Elmhurst Reply”).
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to
include “a short and plain statement of the claim showing that the pleader is entitled to
relief.” To survive a motion to dismiss, the plaintiff’s pleading must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim has facial plausibility “when the plaintiff pleads factual
content that allows the Court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Although detailed factual allegations are not necessary, the pleading must include
more than an “unadorned, the-defendant-unlawfully-harmed-me accusation;” mere
legal conclusions, “a formulaic recitation of the elements of a cause of action,” or “naked
assertions devoid of further factual enhancement” by the plaintiff will not suffice. Id.
(internal quotations and citations omitted). This plausibility standard “is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Determining whether a
complaint states a plausible claim for relief is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense. But where 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 pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Thus, on a
motion to dismiss for failure to state a claim, “the issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support the
claims.” York v. Ass’n of the Bar of City of N.Y., 286 F.3d 122, 125 (2d Cir. 2002)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
“In adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which
judicial notice may be taken.” Serdarevic v. Centex Homes, LLC, 760 F. Supp. 2d 322,
328 (S.D.N.Y. 2010) (quoting Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107
(2d Cir. 1999)). The Court will accordingly consider the Arbitrator’s Decision, which is
referred to extensively in the Petition, and of which the Court may take judicial notice.
See Henneberger v. Cnty. of Nassau, 465 F. Supp. 2d 176, 185 (E.D.N.Y. 2006)
Plaintiffs’ Motion to Amend
Rule 10(a) of the Federal Rules of Civil “expressly requires that civil actions be
brought in the true name of the plaintiffs.” Doe v. Del Rio, 241 F.R.D. 154, 156 (S.D.N.Y.
2006); see also Fed R. Civ. P. 10(a) (“The title of the complaint must name all the
parties.”). The Petition, which identifies the Plaintiffs only as “Milk Wagon Drivers and
Dairy Employees,” fails to comply with Rule 10(a).
In their Oppositions, Plaintiffs for the first time identify themselves as the 42
Elmhurst employees who were laid off on September 16, 2012. 2 Pls.’ Elmhurst Opp’n at
11; Pls.’ Union Opp’n at 5. Plaintiffs explain that they did not list their individual names
in the Petition “for the sake of brevity” and seek leave to amend the Petition to comply
with Rule 10(a). Pls.’ Elmhurst Opp’n at 11–12; Pls.’ Union Opp’n at 5–6. As explained
more fully below, the Petition ultimately fails to state claims that are facially plausible.
Because the additional information would not cure the Petition, leave to amend is
denied as futile. Mortimer Off Shore Servs., Ltd. v. Fed. Republic of Germany, 615 F.3d
97, 114 (2d Cir. 2010).
Plaintiffs’ Petition to Vacate the Arbitration Award
The first count of the Petition seeks vacatur of the arbitration award in favor of
Elmhurst. Petition at 13. The Union does not contest Plaintiffs’ allegation that the
arbitrator committed reversible error. 3 Elmhurst opposes vacatur, arguing that the
petition to vacate is untimely and that it fails to allege sufficient grounds to justify
vacating the award.
Because Section 301 of the LMRA does not contain a statute of limitations,
federal courts must borrow the appropriate state statute of limitations. Local 802,
Associated Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d 85, 88 (2d Cir.
The Arbitrator’s Decision states that only 39 employees were ultimately laid off. Arbitrator’s Decision at
3 The Court notes, however, that the Union did not oppose Elmhurst’s action to confirm the award. See
Elmhurst Dairy, Inc. v. Milk Wagon Drivers & Dairy Emps., Local 584, Int’l Bhd. of Teamsters, No. 13-cv5001 (ILG)(VVP) [Dkt. No. 10].
1998). The appropriate limitations period for motions to vacate arbitration awards is
the ninety-day statute of limitations contained in New York Civil Practice Law and Rules
(“CPLR”) § 7511(a), which runs from delivery of the award. Id.; N.Y. C.P.L.R. § 7511(a).
New York courts have repeatedly held that “delivery” includes delivery to the union or
agent representing an individual. See, e.g., Case v. Monroe Cmty. College, 89 N.Y.2d
438, 443 (N.Y. 1997); Lowe v. Erie Ins. Co., 865 N.Y.S.2d 465, 468 (N.Y. App. Div.
The arbitration award was issued on May 28, 2013 and mailed to the parties—
Elmhurst and the Union—on May 29, 2013. Elmhurst’s Reply at 2. 4 Section 2103 of the
CPLR provides that the statute of limitations begins to run five days after mailing where
service is made by mail. N.Y. C.P.L.R. § 2103(b)(2). Accordingly, the statute of
limitations began to run on June 3, 2013—five days after the award was delivered to the
Union. 5 Ninety days after June 3, 2013 is September 1, 2013. Because September 1,
2013 was a Sunday, and September 2, 2013 was Labor Day—a public holiday—the
limitations period expired on September 3, 2013—the day Plaintiffs filed the Petition.
See Scuderi v. Bd. of Educ. For City Sch. Dist. Of Yonkers, 374 N.Y.S.2d 130, 133 (N.Y.
App. Div. 1975); N.Y. Gen. Constr. Law § 25-a(1). Accordingly, the Petition is timely.
“[C]ourts play only a limited role when asked to review the decision of an
arbitrator.” United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36
(1987). They “are not authorized to reconsider the merits of an award even though the
parties may allege that the award rests on errors of fact or on misinterpretation of the
The award was also delivered to the parties by email on May 29, 2013. Doren Decl., Ex. F.
Plaintiffs’ calculations are erroneous, but their mistake is ultimately irrelevant. See Pls.’ Elmhurst Opp’n
at 5 (“June 4, 2013 is five days after . . . May 29, 2013.”).
contract.” Id. Indeed, “as long as the arbitrator is even arguably construing or applying
the contract and acting within the scope of his authority, that a court is convinced he
committed serious error does not suffice to overturn his decision.” Id. at 38.
Accordingly, the party seeking vacatur “bears the heavy burden of showing that the
award falls within a very narrow set of circumstances,” including “corruption, fraud, or
some other impropriety on the part of the arbitrators.” Duferco Int’l Steel Trading v. T.
Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003). A court may also vacate an
award that exhibits “manifest disregard of law,” that is, “that the arbitrators were fully
aware of the existence of a clearly defined governing legal principle, but refused to apply
it, in effect, ignoring it.” Id. at 389.
It is not immediately clear from the Petition on what grounds Plaintiffs seek to
vacate the arbitration award. Plaintiffs cite a laundry list of alleged factual inaccuracies
in the Arbitrator’s Decision, but disagreement with an arbitrator’s fact-finding is not an
appropriate ground for vacating an arbitration award. Misco, 484 U.S. at 37–38
(“Because the parties have contracted to have disputes settled by an arbitrator chosen by
them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of
the contract that they have agreed to accept . . . . [A]n arbitrator must find facts and a
court may not reject those findings simply because it disagrees with them.”). Plaintiffs
also assert that the “arbitration process was nothing but a charade” because the
Defendants colluded to mislead the arbitrator. Petition ¶ 8. This conclusory allegation
is insufficient to state a claim that the award was procured through fraud. See Iqbal,
556 U.S. at 678.
In their Opposition, Plaintiffs assert for the first time that the Arbitrator’s
Decision exhibits a manifest disregard of law because it ignores the principle of
seniority. 6 Plaintiffs are incorrect. Seniority derives from contract—it is not a “legal
principle.” Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 131 (2d Cir. 2001). But even if
it were, the Arbitrator’s Decision does not exhibit a manifest disregard of law. The
arbitrator did not disregard the seniority provisions of the CBA, but rather concluded
that Elmhurst’s employees were subject to two different collective bargaining
agreements depending on their date of hire, and therefore constituted two different
groups for seniority purposes. Arbitrator’s Decision at 16–18. And the arbitrator came
to his conclusion only after a detailed analysis of the parties’ bargaining history and the
language of their various collective bargaining agreements. Id. at 14–15.
“Only a barely colorable justification for the outcome reached” is required to
enforce an arbitration award. D.H. Blair & Co. v. Gottdeiner, 462 F.3d 95, 110 (2d Cir.
2006) (quotation omitted). The arbitrator’s reasoning far surpasses that threshold.
And given the deference due to arbitration awards, the Court cannot conclude that the
arbitrator improperly applied a clear and plainly applicable legal principle. See Duferco,
333 F.3d at 390. Accordingly, Plaintiffs’ request for vacatur is denied.
Plaintiffs’ Hybrid 301/Fair Representation Claims
The Petition also asserts a so-called hybrid 301/fair representation claim—that
Elmhurst breached the CBA and the Union breached its duty of fair representation. See
DelCostello v. Int’l Bhd. Of Teamsters, 462 U.S. 151, 164–65 (1983). Specifically,
Plaintiffs allege that they were laid off by Elmhurst in violation of the seniority
provisions of the CBA and that the Union failed to fairly represent them in the
The Court need not address this argument, Galiano v. Fidelity Nat’l Title Ins. Co., No. 08-CV-4711 (TCP)
(WDW), 2010 WL 9447505, at *3 (E.D.N.Y. Nov. 8, 2010) (stating that “[n]ew facts and allegations, first
raised in a plaintiff’s opposition papers, may not be considered” on a motion to dismiss); Scholastic, Inc.
v. Stouffer, 124 F. Supp. 2d 836, 851 (S.D.N.Y. 2000) (“parties are not entitled to assert new facts in
submissions on a motion to dismiss”), but in any event it does not cure the Petition.
arbitration proceeding regarding those layoffs. “To prevail against either the company
or the Union, employee-plaintiffs must not only show that their discharge was contrary
to the contract but must also carry the burden of demonstrating breach of duty by the
Union.” DelCostello, 462 U.S. at 165 (quotations omitted).
In order to establish a breach of a union’s duty of fair representation, a plaintiff
must establish two elements: (1) “that the union’s actions or inactions are either
arbitrary, discriminatory, or in bad faith”; and (2) that there is “a causal connection
between the union’s wrongful conduct and [plaintiff’s] injuries.” Vaughn v. Air Line
Pilots Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010) (quotations omitted). “A union’s
actions are arbitrary only if, in light of the factual and legal landscape at the time of the
union’s actions, the union’s behavior is so far outside a wide range of reasonableness, as
to be irrational.” White v. White Rose Food, 237 F.3d 174, 179 (2d Cir. 2001) (quotation
omitted). “This ‘wide range of reasonableness’ gives the union room to make
discretionary decisions and choices, even if those judgments are ultimately wrong.”
Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45–46 (1998). “[M]ere negligence,
even in the enforcement of a collective-bargaining agreement” does not establish a
breach of the duty of fair representation. United Steelworkers of Am. v. Rawson, 495
U.S. 362, 372 (1990). “A showing of bad faith requires a showing of fraudulent,
deceitful, or dishonest action,” White, 237 F.3d at 179, and that the union acted “with an
improper intent, purpose, or motive,” Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d 120,
126 (2d Cir. 1998). “A union’s acts are discriminatory when substantial evidence
indicates that it engaged in discrimination that was intentional, severe, and unrelated to
legitimate union objectives.” Vaughn, 604 F.3d at 709 (quotations omitted).
Plaintiffs assert that the Union’s actions were arbitrary or in bad faith because the
Union “failed to fairly represent the interests of [Plaintiffs].” Petition ¶23. This is
merely “a formulaic recitation of the elements of a cause of action” and does not suffice
to state a claim. Iqbal, 556 U.S. at 678. Plaintiffs also assert that the Union failed to
correct unspecified inaccuracies during the arbitration. Petition ¶ 29. But without more
this vague allegation does not support a plausible inference of bad faith—rather, it only
suggests that the Union was negligent or made a “tactical error,” which is simply
insufficient to state a claim for breach of the duty of fair representation. See, e.g., Barr
v. United Parcel Serv., Inc., 868 F.2d 36, 43–44 (2d Cir. 1989).
Plaintiffs also assert that the Union acted in bad faith because it conspired with
Elmhurst to undermine the arbitration process and “made secret side deals” with
Elmhurst. Petition ¶¶ 25, 31. A conclusory allegation of the existence of a conspiracy,
however, is a legal conclusion not entitled to the presumption of truth and is therefore
insufficient to state a plausible claim. See Twombly, 550 U.S. at 556–57. Finally,
Plaintiffs appear to allege that the Union’s actions were discriminatory because all of the
Plaintiffs are minorities. Petition ¶ 24. Plaintiffs, however, fail to allege any facts that
would support a plausible inference of discriminatory intent on the part of the Union.
See Reyes v. Fairfield Props., 661 F. Supp. 2d 249, 269 (E.D.N.Y. 2009) (“Even liberally
construed, plaintiffs’ complaint fails to allege any facts relating to race, other than a
conclusory statement that defendants retaliated and discriminated against plaintiffs
based on their being African–American, which is insufficient under Iqbal.”).
Contrary to Plaintiffs’ arguments, the Arbitrator’s Decision demonstrates that the
Union argued vigorously against the layoffs. 7 It reflects that the Union argued that the
parties had never agreed to create two separate seniority groups, that Elmhurst had
always treated all of its employees as part of one seniority group, and that seniority is a
“key right” for which unions fight. See Arbitrator’s Decision at 8–10. Indeed, the
arbitrator noted that it was “unusual” that there were two separate seniority groups, but
the plain language of the CBA compelled that conclusion. Id. at 18. Plaintiffs may
disagree with this finding and the outcome of the arbitration, but that is simply not a
sufficient ground for a claim against the Union. Barr, 868 F.2d at 43. Because the
Petition fails to state a plausible claim that the Union breached its duty of fair
representation, Plaintiffs’ hybrid 301/fair representation claim must be dismissed.
Plaintiffs’ Remaining Claims
To the extent that the Petition alleges claims against Elmhurst for other breaches
of the CBA, or against the Union for instances prior to the arbitration in which it failed
to fairly represent Plaintiffs, those claims all accrued well more than six months prior to
the filing of the Petition and are therefore time-barred. See DelCostello v. Int’l Bhd. Of
Teamsters, 462 U.S. 151, 169 (1983).
For the foregoing reasons, Defendants’ motions to dismiss are hereby GRANTED.
Brooklyn, New York
April 17, 2014
In addition, the Court notes that the Union took action against Elmhust prior to taking the matter to
arbitration. The Union called for a strike in protest of Plaintiffs’ layoffs, which led to Elmhurst filing an
action in this Court and obtaining an injunction to stop the strike. See Elmhurst Dairy, Inc. v. Milk
Wagon Drivers & Dairy Emps., Local 584, Int’l Bhd. of Teamsters, No. 12-cv-5269 (ILG) (VVP) [Dkt. No.
I. Leo Glasser
Senior United States District Judge
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