Hosokawa v. Sag/Aftra et al

Filing 93

OPINION & ORDER re: #49 MOTION to Dismiss First Amended Complaint filed by Screen Actors Guild-American Federation of Television and Radio Artists, New York Local of Screen Actors Guild-American Federation of Television And Radio Artists. SAG-AFTRA's motion to dismiss is granted. The Clerk of Court is directed to mail a copy of this Order to Plaintiff pro se, terminate all pending motions, and mark this case as closed. (Signed by Judge William H. Pauley, III on 2/7/2017) (cla)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MIDORI HOSOKAWA,
Plaintiff,
-againstSCREEN ACTORS GUILD-AMERICAN,
FEDERATION OF TELEVISION AND
RADIO, ARTISTS, et ano.,
Defendants.

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14cv6189
OPINION & ORDER

WILLIAM H. PAULEY III, District Judge:
Plaintiff pro se Midori Hosokawa brings this action against defendants Screen
Actors Guild-American Federation of Television and Radio Artists and its New York Local
(collectively, “SAG-AFTRA” or the “Union”), alleging breaches of SAF-AFTRA’s duty of fair
representation and a breach of its constitution. SAG-AFTRA moves to dismiss the First
Amended Complaint (“Compl.”). SAG-AFTRA’s motion to dismiss is granted.
BACKGROUND
The material facts, gleaned from the First Amended Complaint and Hosokawa’s
supplemental submissions, are accepted as true for purposes of this motion.
Hosokawa is an actor and member in good standing of SAG-AFTRA, a labor
organization that represents actors and other media professionals. (Compl. ¶¶ 6, 10, 15.) In July
2013, she appeared in a Verizon “Droid” television commercial. (Compl. ¶ 19.) Two versions
of the commercial aired: a thirty-second version (“First Commercial”) and a four-minute version
(“Second Commercial”). (Compl. ¶¶ 42, 48, 54.) The signatory producer of the Droid

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commercial paid her as a “background” performer. (Compl. ¶ 43.) However, Hosokawa
believes that SAG-AFTRA’s collective bargaining agreement entitled her to be compensated as a
“principal” performer. A principal performer receives enhanced compensation. (See Compl.
¶¶ 21–22.)
Despite the fact that a production assistant told Hosokawa that she was “virtually
certain to be deemed a ‘principal,’” the signatory producer determined that she was merely a
“background” performer and paid her commensurately. (Compl. ¶¶ 42–43.) On August 9, 2013,
Hosokawa submitted a inquiry form with SAG-AFTRA, seeking to have the Union file a claim
with the signatory producer to “upgrade” her role to a “principal” performer on the 30-second
version of the Droid commercial. (Compl. ¶ 44.) Approximately three weeks later, SAGAFTRA denied her request and closed the case. (Compl. ¶ 51.) Thereafter, Hosokawa contacted
SAG-AFTRA repeatedly seeking further clarification and attempting to persuade them to pursue
an upgrade on her behalf. (See Compl. ¶¶ 52–53.)
In September 2013, Hosokawa learned of the Second Commercial. (Compl.
¶ 54.) She emailed SAG-AFTRA with information about the Second Commercial and a link to
YouTube where it could be viewed. (Compl. ¶¶ 54, 55(A); Hosokawa Mem., ECF No. 71, Ex.
4.) A SAG-AFTRA representative responded, stating:
You have been advised, on several occasions both in writing and verbally, that
this claim is closed and that no further discussion is warranted.
This claim remains closed as you do not meet the criteria for upgrade. Your
constant barrage of emails and phone calls are disruptive. If you do not cease
from contacting [a different representative] and the rest of the staff in the
Commercials Department, I will have no choice but to refer this issue to Legal[,
which] . . . means that your conduct as a member of this union will be reviewed
and a determination made about your future contact with this organization.

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(Hosokawa Mem., ECF No. 71, Ex. 4.)
Undeterred, in late September 2013, Hosokawa contacted a representative of the
commercial’s signatory producer who agreed with her that the two Verizon Droid commercials
were separate and that the Union should assist her. (Compl. ¶ 56.) In October 2013, SAGAFTRA reiterated to Hosokawa by letter that her claim was closed. (Compl. ¶ 57; Hosokawa
Mem., ECF No. 71, Ex. 9.) SAG-AFTRA’s letter stated:
It is my understanding that you have been informed both verbally and in writing
that you do not have a valid or meritorious claim for the above-referenced
Verizon Wireless advertisement. This decision was made by the Commercials
Department after carefully researching the matter. Subsequent to being informed
of this decision, you have continued to relentlessly and repeatedly call and email
the Commercials Department staff.
...
Your repeated calls and emails require staff to spend a disproportionate amount of
time engaged in unproductive conversations with one member, and our resources
are therefore denied to other members. In addition, your manner and attitude at
times are extremely discourteous and rude, and there is never a place for that type
of behavior between members and staff.
If you have new matters to bring to our attention, we look forward to working
with you to resolve them. However, we will no longer respond to any inquiries
related to the above-referenced matter.
(Hosokawa Mem., ECF No. 71, Ex. 9.)
Notwithstanding SAG-AFTRA’s October letter, Hosokawa filed two
additional upgrade claims in February 2014. (Compl. ¶ 61.) One of the claims related to
the Second Commercial, while the other pertained to a third version of the commercial
that aired during the Super Bowl. (Compl. ¶ 61; Hosokawa Mem., ECF No. 85, at 3;
Letter from Hosokawa dated October 20, 2016, ECF No. 91, at 1.) In her cover-email,
Hosokawa explained that she was “filing another claim re Verizon Wireless Droid

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Commercial. . . . On Sep.23rd 2013, I showed you the long version incorporated in the
‘Drop’, the entirety of about 4min. Droid TV Commercial . . . but you never handled my
valid claim, then.” (Declaration of Edward Hudson-Plush (“Hudson0Plush Decl.”) dated
June 23, 2016, ECF No. 55, Ex. C, at 1.)
Aside from filing two additional “upgrade” claims, Hosokawa filed an unfair
labor practice charge with the National Labor Relations Board (“NLRB”). (Compl. ¶ 62;
Hudson-Plush Decl., Ex. D.) The NLRB charge related to SAG-AFTRA’s failure to pursue
Hosokawa’s “upgrade” claims. (Hudson-Plush Decl., Ex. D.) Then, in April 2014, Hosokawa
filed two additional claims with the NLRB relating to her February “upgrade” claims. (HudsonPlush Decl., Ex. E.) In June 2014, NLRB’s Regional Director dismissed all of the charges,
reasoning that the “Union’s decision against proceeding to arbitration over [her] claims was
based solely upon its good-faith evaluation of the merits of the grievance.” (Hudson-Plush
Decl., Ex. F.) Hosokawa appealed the Regional Director’s decision to the NLRB’s General
Counsel.
In August 2014, Hosokawa filed this action. Her appeal of the Regional
Director’s decision was denied by the NLRB’s General Counsel in September 2014. (HudsonPlush Decl., Ex. G.)
LEGAL STANDARD
On a motion to dismiss, the factual allegations in a complaint are accepted as true
and all reasonable inferences are drawn in a plaintiff’s favor. Gonzalez v. Hasty, 802 F.3d 212,
219 (2d Cir. 2015). To withstand dismissal, a 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

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U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Where a plaintiff is proceeding pro se, courts construe “the complaint to raise the strongest
claims that it suggests.” Williams v. Correction Officer Priatno, 829 F.3d 118, 122 (2d Cir.
2016) (citation omitted). But “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
In considering a motion to dismiss, courts “may consider only the complaint, any
written instrument attached to the complaint as an exhibit, any statements or documents
incorporated in it by reference, and any document upon which the complaint heavily relies.”
ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014) (quoting In re Thelen LLP, 736
F.3d 213, 219 (2d Cir. 2013)).
DISCUSSION
I.

Statute of Limitations for Duty of Fair Representation Claims
Claims for the breach of the duty of fair representation against a union are subject

to a six-month statute of limitations. Kalyanaram v. Am. Ass’n of Univ. Professors at N.Y. Inst.
of Tech., Inc., 742 F.3d 42, 46 (2d Cir. 2014). “In this circuit, it is well settled that the cause of
action accrues no later than the time when plaintiffs knew or reasonably should have known that
such a breach of the duty of fair representation had occurred, even if some possibility of
nonjudicial enforcement remained.” Kalyanaram, 742 F.3d at 46 (quoting Cohen v. Flushing
Hosp. & Med. Ctr., 68 F.3d 64, 67 (2d Cir. 1995)).
Here, SAG-AFTRA repeatedly advised Hosokawa that it would not pursue her
“upgrade” claims relating to the Verizon Droid commercials. The Union rejected her claim for
the First Commercial in August 2013. (Compl. ¶ 51; see also Hudson-Plush Decl., Ex. C, at 9
(“As stated to you earlier, you are not upgradable. . . . The claim will not be pursued, nor will it

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be discussed further.”).) And when she offered information about the Second Commercial,
SAG-AFTRA rejected it and told her to cease contacting SAG-AFTRA representatives.
(Hosakowa Mem., ECF No. 71, Ex. 4 (“[The] claim is closed and that no further discussion is
warranted. . . . you do not meet the criteria for an upgrade. . . . If you do not cease from
contacting . . . the staff in the Commercials Department, [the Union representative] will have no
choice but to refer th[e] issue to Legal.”).)
SAG-AFTRA’s emails to Hosokawa were clear and categorical. Any reasonable
person would have recognized that the Union was declining to pursue the “upgrade” claims.
Indeed, Hosokawa acknowledges as much in her opposition to this motion when she asserts, “the
union prohibited Plaintiff to file a 2nd grievance upgrade claim for the 2nd commercial in mid
September 2013 . . . [when] the union wrongfully, prematurely, permanently, closed the claim.”
(Hosokawa Mem., ECF No. 71, at 7.)
In October 2013, SAG-AFTRA dispelled any conceivable doubts with its formal
letter from the Union’s in-house counsel, explaining that it would not pursue Hosokawa’s claims.
(Compl. ¶ 57; Hosokawa Mem., ECF No. 71, Ex. 9.) Specifically, the Union stated that
Hosokawa “ha[d] been informed both verbally and in writing that [she] do[es] not have a valid or
meritorious claim,” a “decision made . . . after carefully researching the matter.” (Hosokawa
Mem., ECF No. 71, Ex. 9.) Accordingly, by October 2013—at the latest—Hosokawa reasonably
should have known that SAG-AFTRA would not pursue her claims. Therefore, those duty of
fair representation claims are time-barred.
Hosokawa raises three arguments challenging this conclusion. First, she asserts
that the statute of limitations was tolled because she filed an unfair labor practice charge with the

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NLRB. But “it is well settled that NLRB proceedings do not toll the six-month statute of
limitations applicable to” breaches of the duty of fair representation. Ode v. Terence Cardinal
Cooke (HCC), No. 08-CV-1528 (SHS), 2008 WL 5262421, at *3 (S.D.N.Y. Dec. 12, 2008);
Kalyanaram, 742 F.3d at 49 (“‘[P]arallel’ avenue of relief to [plaintiff’s duty of fair
representation] claim . . . did not toll the applicable limitations period.”).
Hosokawa also maintains that the statute of limitations did not begin to run on her
breach of duty of fair representation claims pertaining to the Second Commercial until she filed a
claim form in February 2014. This argument misses the mark. Hosokawa’s claim accrued when
she reasonably should have known that SAG-AFTRA was not pursuing her claim. See
Kalyanaram, 742 F.3d at 46; Demchik v. Gen. Motors Corp., 821 F.2d 102, 105 (2d Cir. 1987)
(“When the cause of action is based on a breach of the union’s duty of fair representation, the
claims against both the employer and the union begin to accrue no later than the time when
plaintiffs knew or reasonably should have known that such a breach had occurred.” (internal
quotation marks omitted)). After Hosokawa sent the Second Commercial to SAG-AFTRA and
the Union responded by informing her, among other things, that she “d[id] not meet the criteria
for [an] upgrade,” and that her “claim is closed” and “will not be reopened,” she should have
understood that a breach occurred. (Hosakowa Mem., ECF No. 71, Ex. 4.)
Finally, Hosokawa contends that the doctrine of equitable tolling is applicable.1
Courts only apply equitable tolling “in ‘rare and exceptional circumstances,’ where . . .
‘extraordinary circumstances’ prevented a party from timely performing a required act, and that
the party ‘acted with reasonable diligence throughout the period he [sought] to toll.’” Walker v.

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Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (quoting Doe v. Menefee, 391 F.3d 147, 159 (2d
Cir. 2004)). This argument is also unavailing.
In October 2013, SAG-AFTRA’s in-house counsel informed Hosokawa that the
Union would not pursue her claim. Instead of filing a federal law suit, she waited until February
2014 to file a formal claim regarding the Second Commercial. To the extent she attributes her
delay to a belief that SAG-AFTRA might eventually pursue her claim, such an excuse is
insufficient. See Cohen v. Flushing Hosp. & Med. Ctr., 68 F.3d 64, 68 (2d Cir. 1995) (rejecting
equitable tolling where plaintiff “entertained hopes of future representation by the Union”).
Further, Hosokawa does not allege extraordinary circumstances. That standard is
“‘highly case-specific,’ and the ‘burden of demonstrating the appropriateness of equitable tolling
. . . lies with the plaintiff.’” Wilder v. United States Dep’t of Veterans Affairs, 175 F. Supp. 3d
82, 90 (S.D.N.Y. 2016) (quoting Hall v. Potter, No. 06–CV–5003 (JFB), 2009 WL 577753, at
*6–7 (E.D.N.Y. Mar. 4, 2009)). To meet the extraordinary circumstances test, a plaintiff “must
prove that the cause of his delay was both beyond his control and unavoidable even with
diligence.” Pillco v. Bradt, No. 10-CV-2393 (SAS), 2010 WL 3398467, at *2 (S.D.N.Y. Aug.
26, 2010) (internal quotation marks omitted). Extraordinary circumstances exist only in limited
circumstances, such as “where plaintiff ‘attest[ed] that he did not receive’ notice of right to sue
until deadline had passed ‘because the EEOC sent it to an incorrect address, . . . and he timely
commenced court action ‘within ninety days’ after receiving the notice.” Wilder, 175 F. Supp.
3d at 90 (quoting Smith v. Chase Manhattan Bank, No. 97-CV-4507 (LMM), 1998 WL 642930,

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Hosokawa also asserts equitable estoppel, but that doctrine is not applicable as she does not claim that
SAG-AFTRA made any “misrepresentation of a material fact that lulled [her] into believing that it was not
necessary . . . to commence litigation.” Cerbone v. Int’l Ladies’ Garment Workers’ Union, 768 F.2d 45, 50 (2d Cir.
1985).

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at *4 (S.D.N.Y. Sept. 18, 1998)). Here, the Complaint does not allege any facts sufficient to
meet this threshold.
II.

Breach of Constitution
Construing the Complaint in the most favorable light to Hosokawa, her claim for

breach of the Union constitution raises two distinct issues: SAG-AFTRA breached its
constitution (1) by ignoring Hosokawa’s upgrade claims, and (2) threatening to review her
membership. (See Compl. ¶¶ 55(A), 79, 84.) Neither allegation suffices.
First, a breach of a union constitution claim that involves the “settlement of
disputes” under a collective bargaining agreement and are factually analogous to duty of fair
representation claims are subject to the same six-month limitations period. See Legutko v. Local
816, IBT, 853 F.2d 1046, 1047 (2d Cir. 1988) (holding that six-month duty of fair representation
statute of limitations applicable to claim alleging breach of union contract); Sanders v. Kiley,
No. 91-CV-6320 (KMW), 1995 WL 77916, at *9 (S.D.N.Y. Feb. 23, 1995) (applying six-month
statute of limitations to breach of constitution claim for union’s failure to provide adequate
representation); Connor v. Elmhurst Dairy, Inc., No. 13-CV-4769 (ENV), 2015 WL 5159185, at
*5 (E.D.N.Y. Aug. 17, 2015) (“The statute of limitations for a hybrid claim, under the LMRA, is
six months.”). This is because “permit[ting a] plaintiff . . . to litigate what is essentially a
‘repackaged’ [duty of fair representation] claim” after the six-month statute of limitations “would
interfere dramatically with the expedient resolution of grievances—one of the central goals of
federal labor law. It would also enable plaintiff to subvert the Supreme Court’s holding in
[DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 172 (1983)] by allowing [her] to avoid the
. . . limitations period simply by casting [her] complaint regarding the quality of [her] union’s
representation in terms of breach of a union constitution, rather than breach of the [duty of fair

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representation].” Sanders, 1995 WL 77916, at *8. Thus, to the extent Hosokawa’s breach of
constitution claim is premised on SAG-AFTRA’s failure to pursue her upgrade claims, they are
barred by the six-month statute of limitations.
Second, under New York law, “[a] union’s constitution and by-laws constitute a
contract between the union and its members.” Ballas v. McKiernan, 41 A.D.2d 131, 133 (2d
Dep’t 1973), aff’d, 35 N.Y.2d 14 (N.Y. 1974); Dunlop-McCullen v. Local 1-S RWDSU-AFLCIO, No. 94-CV-1254 (JSM), 1996 WL 3940, at *5 (S.D.N.Y. Jan. 3, 1996), aff’d, 104 F.3d 351
(2d Cir. 1996). “To sustain a claim for breach of contract, New York law requires the following
three elements: (1) the existence of a contract; (2) breach; and (3) damages resulting from, or
caused by, that breach.” In re M/V MSC FLAMINIA, No. 12-CV-8892 (KBF), 2017 WL
239384, at *4 (S.D.N.Y. Jan. 18, 2017) (citing Nat’l Market Share, Inc. v. Sterling Nat’l Bank,
392 F.3d 520, 525 (2d Cir. 2004)).
Here, Hosokawa fails to allege that any breach occurred. She does not claim that
SAG-AFTRA took any action against her. Rather, she alleges only that the Union “threat[ened]
to expel her.” (Compl. ¶ 79.) Not only is this allegation a misinterpretation of the Union
representative’s statement, it concedes that there was no breach, only a threat. See U. S.
Plywood Corp. v. Hudson Lumber Co., 17 F.R.D. 258, 263 (S.D.N.Y. 1955) (distinguishing
between threat to breach a contract in the future and a prior breach).
At best, these allegations are a claim for anticipatory breach. “‘Anticipatory
repudiation occurs when, before the time to performance has arisen, a party to a contract declares
his intention not to fulfill a contractual duty.’” Porwick v. Fortis Benefits Ins. Co., No. 99-CV10122 (GBD), 2004 WL 2793186, at *5 (S.D.N.Y. Dec. 6, 2004) (quoting Lucente v. Int’l

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Business Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citations omitted)). “The
contracting party must communicate a final and unequivocal intention not to perform a future
contractual obligation.” Porwick, 2004 WL 2793186, at *5 (citing Rachmani Corp. v. 9 E. 96th
St. Apartment Corp., 211 A.D.2d 262, 266 (1st Dep’t 1995)).
However, the statements made by the Union representative were neither a final
nor unequivocal statement that Hosokawa’s membership would be revoked. The SAG-AFTRA
representative only stated that if Hosokawa continued contacting the Union about her claim, she
would be referred to SAG-AFTRA’s legal department where her conduct would be reviewed.
(Hosakowa Mem., ECF No. 71, Ex. 4.) In sum, the comments that Hosokawa must conform her
conduct to Union policy in order to continue to be a Union member, amounted to little more than
a caution and did not constitute an anticipatory breach of contract.
CONCLUSION
SAG-AFTRA’s motion to dismiss is granted. The Clerk of Court is directed to
mail a copy of this Order to Plaintiff pro se, terminate all pending motions, and mark this case as
closed.
DATED: February 7, 2017
New York, New York

SO ORDERED:

________________________________
WILLIAM H. PAULEY III
U.S.D.J.

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