Estevez et al v. Consolidated Bus Transit, Inc. et al

Filing 37

OPINION & ORDER re: (10 in 1:15-cv-08000-RA) MOTION to Dismiss filed by Dana Mancuso, JSJ Service, Inc., Consolidated Bus Transportation, Inc., (11 in 1:15-cv-07995-RA) MOTION to Dismiss filed by Dana Mancuso, JSJ Service, Inc., Consolidated Bus Transportation, Inc., (12 in 1:15-cv-07634-RA) MOTION to Dismiss filed by Consolidated Bus Transit, Inc., Dana Mancuso, JSJ Service, Inc., (24 in 1:15-cv-07634-RA) CROSS MOTION to Amend/Correct (12) MOTION to Dismiss Cross Motion to Amend Complaint filed by Julia Reyes, Annette Malpica, Gloria Lugo, Aida Torres, Carlos A. Pena, Andrea Russell, Thelma Hidalgo, Jose Estevez, Jose A. Silverio, Amporita Ortiz, Gl adys Archange, Pedro B. Diaz, Hector Rivera, Wendy Y. Diaz, Angel M. Garces, Nathan D. Garcia, Sergio Vasquez, Felipe E. Mella, Jose V. Naranjo, Angelia Blanco, Alba Baez, Jose Rios, Hector Lora, Carmen Montemoino, Marisela Rodriguez, Salomo n Viteri, Kimbo Rodriguez, Sonia Ortiz, (10 in 1:15-cv-08003-RA) MOTION to Dismiss filed by Dana Mancuso, Consolidated Bus Transit, Inc., JSJ Service, Inc., (10 in 1:15-cv-08005-RA) MOTION to Dismiss filed by Dana M ancuso, Consolidated Bus Transit, Inc., JSJ Service, Inc., (10 in 1:15-cv-08006-RA) MOTION to Dismiss filed by Dana Mancuso, Consolidated Bus Transit, Inc., JSJ Service, Inc., (12 in 1:15-cv-07998-RA) MOTION to Dismiss filed by Dana Mancuso, JSJ Service, Inc., Consolidated Bus Transportation, Inc., (10 in 1:15-cv-08007-RA) MOTION to Dismiss filed by Dana Mancuso, Consolidated Bus Transit, Inc., JSJ Service, Inc., (10 in 1:15-cv-07999-RA) MOTION to Dismiss filed by Dana Mancuso, JSJ Service, Inc., Consolidated Bus Transportation, Inc. Defendants' motion to dismiss this action is granted, and Plaintiffs' motion for leave to file the PSAC is denied. As st ated above, Plaintiffs may submit a letter to the Court by July 1, 2016 indicating (1) whether they seek to amend their federal and/or state WARN Act claims, and (2) whether they plan to bring LMRDA claims, and, if so, why such claims are not barr ed by the statute of limitations. Defendants shall have until July 8, 2016 to respond. The Clerk of Court is respectfully directed to terminate the motions pending at docket entries 12 and 24. (As further set forth in this Opinion & Order.) (Signed by Judge Ronnie Abrams on 6/20/2016) Filed In Associated Cases: 1:15-cv-07634-RA et al.(mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 6/20/2016

JOSE ESTEVEZ, et al.,
Plaintiffs,
v.
CONSOLIDATED BUS TRANSIT, INC.;
JSJ SERVICE, INC; and DANA MANCUSO,
Defendants.

No. 15-CV-7634 (RA)
No. 15-CV-7995 (RA)
No. 15-CV-7998 (RA)
No. 15-CV-7999 (RA)
No. 15-CV-8000 (RA)
No. 15-CV-8003 (RA)
No. 15-CV-8005 (RA)
No. 15-CV-8006 (RA)
No. 15-CV-8007 (RA)
OPINION & ORDER

RONNIE ABRAMS, United States District Judge:
Twenty-eight Plaintiffs bring this action against Defendants Consolidated Bus Transit,
Inc., JSJ Services, Inc., and Dana Mancuso for breach of contract, negligence, wrongful
termination, violation of the federal and New York Worker Adjustment and Retraining
Notification Act (the “WARN Act”), 29 U.S.C. § 2101 et seq. and New York Labor Law § 860 et
seq., violation of 18 U.S.C. § 1341, and violation of Title VII of the Labor Management Reporting
and Disclosure Act (the “LMRDA”), 29 U.S.C. § 401 et seq. Defendants move to dismiss the
Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. They
argue, inter alia, that (1) the claims for breach of contract, negligence, and wrongful termination
are preempted by the Labor Management Relations Act, (the “LMRA”), 29 U.S.C. § 185(a), and
that the breach of contract claim is also barred by collateral estoppel and the negligence claim by
the economic loss doctrine; (2) the WARN Act claims must be dismissed because Plaintiffs fail to
allege that Defendants employed and terminated a sufficient number of employees for the federal
and state acts to apply and because Plaintiffs fail to allege that there was a mass layoff or plant

closing; and (3) Plaintiff’s claim pursuant to 18 U.S.C. § 1341 must be dismissed because there is
no private right of action under that statute. Defendants also argue that the Amended Complaint
should be dismissed in full pursuant to New York Judiciary Law § 478 because a non-attorney,
Edward Rivera, furnished legal advice to Plaintiffs and drafted and filed the original and Amended
Complaint.
Plaintiffs oppose the motion, and cross-move for leave to file a second amended complaint.
For the reasons that follow, Defendants’ motion to dismiss is granted, and Plaintiffs’ motion for
leave to file the Proposed Second Amended Complaint (“PSAC”) is denied. The Court will,
however, permit the Plaintiffs to file a letter indicating (1) whether they seek to amend their federal
and/or state WARN Act claims, and (2) whether they seek to bring LMRDA claims, and, if so,
why such claims are not barred by the statute of limitations.
BACKGROUND
I.

Facts1
Plaintiffs were employees of Consolidated Bus and members of the International

Brotherhood of Teamsters, Local 854. Am. Compl. 2. Local 854 and Consolidated Bus were
signatories to a five year collective bargaining agreement (the “CBA”), dated July 1, 2010 through
June 30, 2015. Am. Compl. Ex. A. The CBA has sections governing Wages, Discharge,
Modification of the CBA, and Vacation. Am. Compl. Ex. A §§ 2, 4, 6, and 23. It also has an
arbitration provision, which provides that “[a]ll grievances must be filed in writing . . . within five
(5) business days from the alleged activity in violation of the Collective Bargaining Agreement.”
Felsen Decl. Ex. A § 8.2

1

Unless otherwise noted, all facts are taken from the Amended Complaint and its attachments.
The version of the CBA attached to Plaintiffs’ Amended Complaint omits certain pages; therefore, the Court
refers to the version attached to the Felsen Declaration for citations to these omitted sections.
2

2

Plaintiffs allege that on August 13, 2013, they were notified that they were permanently
laid off, effective immediately. Am. Compl. 2–3. The letter notifying the employees of their
termination states: “Consolidated Bus Transit, Inc. is required to provide you with this notice
regarding the reduction in force pursuant to a federal and state stature [sic] called Worker
Adjustment and Retraining Act (“WARN”). Please consider this to be your official notice as
required under WARN and specifically under section 2102(b)(2)(A).” Am. Compl. Ex. B.
Plaintiffs also allege that, on or about August 22, 2013, “the Union Representative made a
decision to replace Local Union 854 with Local Union 553 without [their] consent,” as a “part of
the plan to roll back wages and benefits.” Am. Compl. 4–5. Although the circumstances
supporting this allegation are not made clear in the Amended Complaint, Plaintiffs’ Affidavits
attached to their opposition to the motion to dismiss indicate that Local 854 effected this alleged
scheme by calling a meeting of its members on August 22, 2013, when they knew a majority of
members were unable to attend because it was school vacation and the end of the school year.
Dermesropian Decl. Ex. A ¶ 8. At that meeting, those in attendance were presented with a voting
ballot that gave them a choice between an “Open Contract” and “No Work.” Id. ¶ 10; see also
Am. Compl. Ex. G (“[O]n August 22 and 23, 2013, the Union held a vote by bargaining unit
employees on whether or not to reopen the contract currently in effect between the Employer and
Union, and to ratify certain modifications to the terms of the contract.”). The majority of attendees
appear to have voted in favor of an Open Contract, and, as a result, “[h]ourly rates were rolled
back, and vacation pay was cancelled.” Am. Compl. 5. Plaintiffs allege that “under duress, with
no place to go [Plaintiffs] held on to the job with a reduction in hourly rates and vacation pay.” Id.

3

II. Procedural History
Plaintiffs, proceeding pro se, originally filed individual actions against Defendants in New
York City Civil Court, County of Bronx, and Defendants removed these actions to the United
States District Court for the Southern District of New York on September 28, 2015. Defendants
moved to dismiss on October 30, 2016, and on December 1, 2015, the individual actions were
consolidated. Plaintiffs subsequently retained counsel, and cross-moved for leave to file a second
amended complaint on January 20, 2016.
DISCUSSION
I. Motion to Dismiss
To survive a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, a complaint must allege “enough facts to state a claim to relief that is plausible
on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In other words, facial plausibility “asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557). Ultimately, although “the pleading standard Rule 8
announces does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). In
applying this standard, courts must “accept all factual allegations as true, and draw all reasonable
inferences in the plaintiff’s favor.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110–11 (2d

4

Cir. 2010) (internal alterations omitted) (quoting Shomo v. City of New York, 579 F.3d 176, 183
(2d Cir. 2009)).
“In adjudicating a motion to dismiss, a court 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)). “Although litigants generally may not constructively amend their complaints by raising
new factual allegations in their opposition papers, courts often consider such assertions when made
by pro se litigants. Smith v. City of New York, No. 14-CV-443 (LTS), 2015 WL 1433321, at *2
(S.D.N.Y. Mar. 30, 2015) (collecting cases) (internal citation omitted). Here, although Plaintiffs
are now represented by counsel, at the time the Amended Complaint was filed, they were
proceeding pro se. The Court will therefore rely on certain facts asserted in the affidavits
accompanying their opposition.
The Court “must construe pro se complaints liberally, applying a more flexible standard to
evaluate the sufficiency than [it] would when reviewing a complaint submitted by counsel.”
Lerman v. Bd. of Elections in City of New York, 232 F.3d 135, 140 (2d Cir. 2000). Consistent with
Second Circuit guidance, the Court will interpret the complaint with special solicitude “to raise
the strongest arguments that [it] suggest[s].” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015)
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
A. Alleged Representation by Non-Attorney Edward Rivera
Defendants first move to dismiss the Amended Complaint in its entirety on the grounds
that the Plaintiffs were represented by a non-attorney, Edward Rivera, when these cases were
originally brought in state court. Defs.’ Mot. Dismiss 16–17. Specifically, Defendants argue that

5

Plaintiffs entered into a retainer agreement with Rivera, that they paid him for legal services, that
he drafted and filed the original and Amended Complaint, and that he has appeared before the
Supreme Court of the State of New York, Bronx County on Plaintiffs’ behalf. Id. at 17. They also
point out that Rivera has previously been found to have engaged in the unauthorized practice of
law and has been enjoined from doing so. Id. Plaintiffs counter that the issue is moot because
they are now represented by counsel, and argue that Defendants’ claims regarding the extent of
Rivera’s involvement are unsubstantiated.3
“In the federal courts, ‘parties may plead and conduct their own cases personally or by
counsel.’” Berrios v. New York City Hous. Auth., 564 F.3d 130, 132 (2d Cir. 2009) (quoting 28
U.S.C. § 1654). “Although § 1654 thus recognizes that an individual generally has the right to
proceed pro se with respect to his own claims or claims against him personally, the statute does
not permit unlicensed laymen to represent anyone else other than themselves.” Id. (emphasis in
original and citations and alternations omitted). Accordingly, “[w]hen a non-attorney pro se
litigant is improperly seeking to represent another entity or individual . . . a district court should
refrain from addressing the merits of the claim under a Rule 12(b)(6) motion because to do so
could potentially prejudice a properly represented party with standing in a subsequent litigation.”
Gabayzadeh v. Taylor, No. 08-CV-3239 (JFB), 2009 WL 2983013, at *4 (E.D.N.Y. Sept. 4, 2009);
see also Berrios, 564 F.3d at 134–35.
Rivera’s apparent involvement in this case is concerning. The Amended Complaint is
accompanied by an affidavit from Rivera, in which he attests that his organization, the Homeward
Bound Program for Children, Inc., is “entitled to reasonable compensation for services rendered”
as well as “[a]ccounting fees to testify as an agent for the employees to cover the expenses while

3

Plaintiffs, however, appear to concede in their Reply in Further Support for Leave to Amend the Amended
Complaint that Rivera prepared the Complaint and Amended Complaint. Reply Mot. Amend 2.

6

working on this case.” Rivera Aff. 8. He further claims that he has spent “more than nine hundred
forty five (945) hours . . . on this case.” Id. There is also a “Disclosure of Quid Pro Quo
Contributions,” attached to the Amended Complaint, which appears to be a retainer between
Plaintiffs and the Homeward Bound Program for Children. Am. Compl. Ex. I. In that agreement,
in exchange for “Accounting/Legal Services” fees of $60,900, the Homeward Bound Program
commits to assist the bus drivers and matrons in “recover[ing] wages and benefits earned pursuant
to a Collective Bargaining Agreement (CBA) from [their] employer [ ] Consolidated Bus
Transportation.” Id. Homeward Bound also represents that, “[w]e will accept responsibilities on
the Power of Attorney to represent them before the Court,” and that “[i]f we prevail (win), the
Court can order Consolidated to pay [Homeward Bound] for the services rendered.” Id.
Plaintiffs, however, are now represented by counsel who assert that “Mr. Rivera is not
associated or affiliated with any of the attorneys representing Plaintiffs, and is not represented by
either Counsel of Record.” Pls.’ Opp. Mot. Dismiss 20. In Berrios v. New York City Housing
Authority, 564 F.3d 130 (2d Cir. 2009), the Second Circuit instructed that, even where a court finds
that a litigant is improperly represented, “it should not dismiss the action without affording such
guardian the opportunity to retain counsel or to seek representation from a pro bono attorney or
agency.” Id. at 137. Although Berrios involved the representation of an allegedly incompetent
person, the Second Circuit’s reasoning applies here as well. Thus, even assuming Plaintiffs were
improperly represented by Rivera earlier in the case, because they have now retained qualified
counsel, the Court is not compelled to dismiss this case before considering the merits of Plaintiffs’
claims.

7

B. State Law Claims: Breach of Contract, Negligence, and Wrongful
Termination
Defendants next move to dismiss Plaintiffs’ breach of contract, negligence, and wrongful
termination claims on the grounds that they are preempted by Section 301 of the LMRA. Section
301 seeks “to ensure uniform interpretation of collective-bargaining agreements” and “to promote
the peaceable, consistent resolution of labor-management disputes.” Lingle v. Norge Div. Magic
Chef Inc., 486 U.S. 399, 404 (1988). The Supreme Court has therefore held that “if the resolution
of a state-law claim depends upon the meaning of a collective-bargaining agreement, the
application of state law . . . is pre-empted and federal labor-law principles . . . must be employed
to resolve the dispute. Id. at 405–6. Accordingly, a plaintiff’s formulation of his or her complaint
as based on state tort law is not binding on a court “where rights and obligations under the pertinent
collective action agreement are inextricably involved in the underlying claim.” Doughtery v.
American Tel. and Tel. Co., 902 F.2d 201, 203 (2d Cir. 1990); see also Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 211 (1985) (“Thus, questions relating to what the parties to a labor agreement
agreed, and what legal consequences were intended to flow from breaches of that agreement, must
be resolved by reference to uniform federal law, whether such questions arise in the context of a
suit for breach of contract or in a suit alleging liability in tort.”).
Plaintiffs’ state law clams of breach of contract, wrongful termination, and negligence
plainly require interpretation of the CBA, and are therefore preempted by the LMRA. Plaintiffs’
breach of contract claim alleges that Defendants “acted on their [sic] ‘outside’ agreement by
reducing hourly rates and benefits, and vacation pay.” Am. Compl. 6. Plaintiffs do not identify
the agreement to which they refer, but given that the CBA is attached as an exhibit to the Amended
Complaint, Plaintiffs assert in the Amended Complaint that the “CBA states the terms of the hourly
wages and benefits from July 1, 2010 through June 30, 2015,” Am. Compl. 2, and Plaintiffs point
8

to no other agreement to which this could refer, the Court concludes that the Plaintiffs were
referring to the CBA in their breach of contract claim. Indeed, even if there was another yet
unidentified agreement to which the Amended Complaint referred, Plaintiffs’ claims that
Defendants unlawfully reduced their wages, benefits, and vacation pay would still require
interpretation of the CBA: the wages of bus drivers and matrons are provided for in Section 2 of
CBA; vacation, including the provision of vacation pay, is provided for in Section 23; and Section
26 and 27 cover health and welfare benefits and pension benefits respectively. See Adonna v.
Sargent Mfg. Co., 485 F. App’x 445, 447 (2d Cir. 2012) (holding that plaintiff’s claims that his
employer improperly suspended him, reassigned him and reduced his pay could not “be
determined without examining the CBA provisions pertaining to the employer’s right to manage,
direct, and discipline the workforce, and set employee wages.”); Avedisian v. Quinnipiac Univ.,
387 F. App’x 59, 62 (2d Cir. 2010) (“Breach of contract claims founded directly on rights created
by collective bargaining agreements or substantially dependent upon analysis of the terms of such
agreements are completely preempted by Section 301.”) (internal citations and alterations
omitted); Spiegel v. Bekowies, No. 14-CV-3045 (LGS), 2015 WL 3429107, at *3 (S.D.N.Y. May
27, 2015) (“[T]here is no way to adjudicate breach of contract absent interpretation of the
underlying contract.”) (internal citation omitted). To the extent that Plaintiffs allege that these
reductions took place by wrongful modification or termination of the CBA, this also requires its
interpretation: Section 6 outlines the method for modifying the CBA. Am. Compl. Ex. A. Given
that Plaintiffs’ breach of contract claim is preempted, the Court need not reach the question of
whether it is also barred by collateral estoppel.
Plaintiffs’ claim for wrongful termination in “breach of employment contract and/or
employment policy” also requires interpretation of the CBA. Id. at 7. Plaintiffs aver that they

9

were discharged without just cause. Id. The only just cause provision that has been brought to the
Court’s attention is in the CBA, which provides, “[t]he Employer shall have no right to summarily
discharge any employee except for conduct detrimental to Employer’s business, under authority
of the New York City Board of Education, insubordination, dishonesty, theft, drunkenness, assault,
chronic absenteeism or chronic lateness.” Id. Ex. A § 4. Section 4 also outlines the grievance
procedure for the union to contest discharge. Id. (“Immediately upon discharge, the Employer
shall notify the Union in writing, by certified mail, of alleged reasons for the discharge. Should
the Union dispute the discharge and the matter cannot be adjusted between the parties within fortheight (48) hours, it shall be settled by arbitration as provided in Section 8.”). There is therefore
no way to determine whether Plaintiffs’ alleged terminations were wrongful without interpreting
the CBA. See Civardi v. Gen. Dynamics Corp., 603 F. Supp. 2d 393, 397–98 (D. Conn. 2009)
(“[R]esolution of the plaintiff’s wrongful discharge claim is dependent on interpretation of the
CBA because any limitation on [defendant’s] right to terminate the plaintiff’s employment would
arise from the CBA and depend upon the meaning and interpretation of the ‘just cause’
provision.”); Sheehan v. U.S. Postal Serv., 6 F. Supp. 2d 141, 148 (N.D.N.Y. 1997) (same);
Heaning v. Nynex–New York, 945 F. Supp. 640, 645 (S.D.N.Y. 1996) (Plaintiff’s claim that he was
discharged without just cause was “indisputably” preempted where duty was drawn from the
language of the CBA.); Anderson v. Coca Cola Bottling Co. of New York, Inc., 772 F. Supp. 77,
81 (D. Conn. 1991) (dismissing breach of contract claim for termination without just cause because
it required interpretation of the CBA’s just cause provision).4

4

Plaintiffs argue that it is not necessary to interpret Section 4 because they do not argue that they were
discharged for “conduct detrimental to Employer’s business.” Pls.’ Opp. Mot. Dismiss 12. But Plaintiffs’ argument
highlights exactly why it is necessary to interpret the discharge section of the CBA: to understand the circumstances
in which the employer is permitted—and not permitted—to discharge an employee requires such interpretation.

10

Plaintiffs also allege that their terminations violated the “progressive discipline policy
contained in its policy manual,” and that “the policy manual constituted an implied contract of
employment, such that plaintiff’s employment could only be terminated for good cause and only
in conformity with the provisions of defendant’s policy manual.” Am. Compl. 7. First, this
allegation, “unaccompanied by any language from the employee handbook that purportedly
created the contract,” is insufficient to state a claim. Willis v. Verizon New York, Inc., No. 11-CV5078 (JG), 2012 WL 2370125, at * 6 (E.D.N.Y. June 22, 2012) (citing Blaise-Williams v.
Sumitomo Bank, Ltd., 592 N.Y.S. 2d 41, 42 (N.Y. App. Div. 1993). Second, the CBA expressly
prohibits employers from “enter[ing] into any individual agreement with any of the employees
covered by [the CBA].” CBA § 6.

Lastly, even if Plaintiffs could sufficiently allege that the

employee handbook constituted a contract, the Court would still have to refer to and interpret the
CBA’s discharge provision to determine whether the termination was wrongful and to understand
the procedure to resolve such grievances. Civardi, 603 F. Supp. 2d at 398 (holding breach of
contract claim pled based on employee handbook preempted because it required interpretation of
CBA); Dulay v. United Techs. Corp., No. 93-CV-2020 (JAC), 1994 WL 362149, at *4 (D. Conn.
June 10, 1994) (“While the plaintiff’s breach of implied contract claim is not based directly on the
CBA, the court cannot evaluate the validity of this claim without determining whether the CBA
was intended to be the sole agreement between the parties.”). Plaintiffs’ wrongful termination
claim is therefore dismissed on preemption grounds.
Plaintiff’s negligence claim is also preempted.5 The Amended Complaint alleges that
“Defendant[s] failed to perform the duties in the written contract in a safe and effective manner
leading to the injuries sustained by Plaintiffs. Vacation pay we earned by June 2014 and by June

Given that Plaintiffs’ negligence claim is preempted, the Court need not reach the question of whether it is
also foreclosed by the economic loss doctrine.
5

11

2015 was not paid; hourly wages were rolled back on September 2013.” Am. Compl. 6. As
discussed above, the written contract that the Amended Complaint refers to is presumably the
CBA; therefore, this claim is preempted by the LMRA and must be dismissed.
Plaintiffs argue that their negligence claim does not flow from the CBA, but is instead
predicated on Defendants alleged “violation of statutory prohibitions against discrimination.” Pls.’
Opp. Mot. Dismiss 18. This argument is contradicted by the language of the Amended Complaint,
which states, “Defendant failed to perform the duties in the written contract.” Am. Compl. 6
(emphasis added). In any event, “alleged violations of federal, state, and city anti-discrimination
laws are not torts under New York law.” Baguer v. Spanish Broad. Sys., Inc., No. 04-CV-8393
(KMK), 2007 WL 2780390, at *4 (S.D.N.Y. Sept. 20, 2007) (collecting cases); see also Williams
v. H.N.S. Mgmt. Co., 56 F. Supp. 2d 215, 221 (D. Conn. 1999) (“[P]laintiff cannot circumvent
statutory remedies available for claims of employment discrimination and harassment by alleging
a common law claim of negligence in discipline or harassment.”); Karam v. Cnty. of Rensselaer,
No. 13-CV-1018 (MAD), 2016 WL 51252, at *21 (N.D.N.Y Jan. 4, 2016) (“A tort claim cannot
arise in employment settings absent some other ‘independent legal duty’ owed by the employer
beyond the anti-discrimination statutes.”) (internal citation omitted). 6 Plaintiffs’ claims for breach
of contract, wrongful termination, and negligence are thus dismissed. 7

Plaintiffs’ negligence claim also fails because it does not allege a duty distinct from the Defendants’
contractual duties. See Ellington Credit Fund, Ltd. v. Select Portfolio Servs., Inc., 837 F. Supp 2d 162, 203 (S.D.N.Y.
2011) (“Merely charging a breach of a ‘duty of due care,’ employing language familiar to tort law, does not, without
more, transform a simple breach of contract into a tort claim.”) (quoting Clark-Fitzpatrick, Inc. v. Long Island R. Co.,
516 N.E.2d 190, 194 (N.Y. 1987)).
7
To the extent that the Amended Complaint can be read to raise a claims of age discrimination, the bare
allegation that Defendants and Local 854 “acted in concert to discriminate [against] the Union members who have
been working for Defendants for more than eight (8) years; some have been with the company for more than twenty
(20) years, with new employees” is insufficient to support an inference of discrimination. Am. Compl. 9.
6

12

C. Federal and State WARN Act Claims
Defendants next seek to dismiss Plaintiffs’ federal and state WARN Act claims on the
grounds that Plaintiffs have failed to allege that Defendants employed and terminated a sufficient
number of employees to be found liable under these statutes. Defendants also argue that Plaintiffs
have failed to allege a mass layoff or plant closing because, according to Plaintiffs’ allegations,
they retained their jobs.
The federal WARN act requires an employer with more than 100 full-time employees to
give its workers 60 days’ notice before any plant closing or mass layoff. 29 U.S.C. §§ 2101–02.
A mass layoff is defined as “a reduction in force which is not the result of a plant closing and
results in an employment loss at the single site of employment during any 30-day period for at
least 33 percent of the employees (excluding any part-time employees) and at least 50 employees
(excluding any part-time employees).” 29 U.S.C. § 2101(3). The state WARN act requires
employers with 50 or more full-time employees to give 90 days’ notice before a plant closing or
mass layoff See NYLL §§ 860–(a)(3), (b)(1). A “mass layoff” is defined as “a reduction in force
which is not the result of a plant closing and results in an employment loss at a single site of
employment during any thirty-day period for at least thirty-three percent of the employees
(excluding part-time employees) and at least twenty-five employees (excluding part-time
employees).” Id. § 860–a(4).
Plaintiffs do not oppose Defendants’ motion to dismiss this claim, nor include WARN Act
claims in their PSAC. It is not clear, however, that Plaintiffs have abandoned this claim because
they do allege additional facts in the affidavits accompanying their opposition to the motion to
dismiss that appear to remedy the pleading deficiencies identified by Defendants. Plaintiffs assert
that “there were approximately seventy (70) school bus drivers and seventy (70) matrons, totaling

13

one-hundred and forty (140) individuals, who were employed by Defendants and who were
members of Local 854. On August 13, 2013, the entire class of one-hundred and forty (140)
employees/members were either handed or mailed a letter terminating their employment with
Defendants effective immediately.” Estevez Aff. ¶ 5–6. Thus, while the Court will dismiss this
claim due to the pleading deficiencies identified by Defendants, it will give the Plaintiffs an
opportunity to indicate whether they seek to amend this claim. Plaintiffs shall accordingly submit
a letter no later than July 1, 2016 notifying the Court whether they seek an opportunity to amend
these claims.
D. 18 U.S.C. § 1341
Defendants next move to dismiss Plaintiffs’ § 1341 claim because there is no private right
of action available under this statute. Plaintiffs do not oppose this portion of Defendants’ motion,
and, in any event, Defendants are correct that no private right of action is available under this
provision. See Pharr v. Evergreen Garden, Inc., 123 F. App’x 420, 422 (2d Cir. 2005) (“The law
in this circuit is clear that this criminal statute does not support any private right of action.”).
Accordingly, Plaintiffs’ § 1341 claims are dismissed.
E. Potential LMRDA Claims
Plaintiffs argue in their opposition to Defendants’ motion to dismiss that the Amended
Complaint also sought relief under the Labor Management Reporting and Disclosures Act, 29
U.S.C. § 401 et seq., and “Defendants do not move to dismiss or even address Plaintiffs’ claims
under the LMRDA.” Pls.’ Opp. Mot. Dismiss 10. Plaintiffs, however, do not include LMRDA
claims in the Proposed Second Amended Complaint, but instead indicate that they “are likely to
be brought” because “Plaintiffs were clearly denied the right to vote in its entirety, including their

14

rights to vote on amendments, attend membership meetings, and participate in deliberations.” Id.
at 7.
If Plaintiffs seek to bring an LMRDA claim, they shall so notify the Court in their July 1
letter. In that letter, they should also indicate why any such claims are not barred by the six-month
statute of limitations. See Legutko v. Local 816, Int’l Bhd. of Teamsters, 853 F.2d 1046, 1053 (2d
Cir. 1988) (holding six-month statute of limitations applied to LMRDA claim that union violated
members’ equal voting rights under Section 101(a)(1)); Connor v. Elmhurst Dairy, Inc., No. 13CV-4769, 2016 WL 126373, at *3 (E.D.N.Y. Jan. 11, 2016) (six-month statute of limitations
applies LMRDA action “where claims have directly implicated the collective bargaining
relationship.”). If Defendants would like to respond, they shall do so by July 8.
II. Motion to Amend
The Court next turns to Plaintiffs’ cross-motion to amend. In the PSAC, Plaintiffs seek to
add claims for declaratory judgment, breach of fiduciary duties, violation of 29 U.S.C. § 158,
unjust enrichment, and attorney’s fees, and to amend their breach of contract, negligence, and
unlawful termination claims. For the reasons that follow, the Court denies Plaintiffs leave to
amend because the proposed amendment is futile.
Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend the pleading
should be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Leave to amend,”
however, “may be denied on grounds of futility if the proposed amendment fails to state a legally
cognizable claim or fails to raise triable issues of fact.” AEP Energy Servs. Gas Holding Co. v.
Bank of Am., N.A., 626 F.3d 699, 726 (2d Cir. 2010) (citing Milanese v. Rust-Oleum Corp., 244
F.3d 104, 110–11 (2d Cir. 2001)). “Futility is a determination, as a matter of law, that proposed
amendments would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6).” Lotes

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Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 416 (2d Cir. 2014) (citation omitted). To
survive a Rule 12(b)(6) motion to dismiss, in turn, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at
678 (citation and internal quotations omitted).
A. Claim 1: Declaratory Judgment
Plaintiffs first seek to add a cause of action for “Declaratory Judgment: Injunctive Relief.”
With respect to injunctive relief, “injunctions are remedies, not causes of action”; therefore
Plaintiffs cannot state a claim on this basis. Messinger v. JPMorgan Chase Bank, N.A., No. 13CV-2444 (AJN), 2014 WL 904528, at *2 (S.D.N.Y. Mar. 7, 2014) (quoting Chiste v. Hotels.com
L.P., 756 F.Supp.2d 382, 406 (S.D.N.Y. 2010)).
Defendants also seek a declaratory judgment “that Defendants’ actions are unlawful.”
PSAC ¶ 68.

As Plaintiffs’ coercive claims will necessarily resolve this question, Plaintiffs’

declaratory judgment claim is duplicative and unnecessary. U.S. Bank Nat. Ass’n ex rel. Lima
Acquisition LP v. PHL Variable Ins. Co., No. 12-CV-6811 (CM), 2014 WL 998358, at *9
(S.D.N.Y. Mar. 14, 2014) (“The fact that a lawsuit has been filed that will necessarily settle the
issues for which declaratory judgment is sought suggests that the declaratory judgment will serve
‘no useful purpose.’”) (quoting Amusement Indus., Inc. v. Stern, 693 F. Supp. 2d 301, 311
(S.D.N.Y. 2010); see also Deutsche Alt-A Sec. Mortg. Loan Tr., Series 2006-OA1 v. DB Structured
Prods, Inc., 958 F. Supp. 2d 488, 507 (S.D.N.Y. 2013) (“It is within the broad discretion of the
trial court whether to exercise declaratory jurisdiction.”) (quoting Camofi Master LDC v. College
P’ship., 452 F. Supp. 2d 462, 480 (S.D.N.Y. 2006).

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B. Claims 2 and 3: Violation of Fiduciary Duties
1. Labor Management Relations and Disclosure Act, 29 U.S.C. § 501
Defendants next oppose Plaintiffs’ motion to add a claim that Defendants breached the
fiduciary duties owed to Plaintiffs in violation of 29 U.S.C. § 501. Section 501, by its terms,
applies to representatives of labor organizations, not employers. See, e.g., Giraldo v. Rosen, 355
F. Supp. 54, 57 (S.D.N.Y. 1973) (“The purpose of the section is to insure that unions do not violate
their fiduciary responsibilities to their members.”); D’Antonio v. Metro. Transit Auth., No. 06-CV4283 (KMW), 2010 WL 1257349, at *8 (S.D.N.Y. Mar. 31, 2010) (holding § 501 claim could not
be brought against non-union officials); Morrissey v. Curran, No. 69-CV-442, 1972 WL 1051, at
*5 (S.D.N.Y. June 29, 1972) (§ 501 does not apply to employer-appointed trustees), aff’d, 483
F.2d 480 (2d Cir. 1973); Tucker v. Shaw, 308 F. Supp. 1, 3 (E.D.N.Y. 1970) (same). Plaintiffs
therefore cannot state a claim against Defendants—all of which are employers—based on this
statute.
2. New York Labor Law § 720, et seq.
Plaintiffs next seek to add a breach of fiduciary duty claim pursuant to New York Labor
Law (the “NYLL”), § 720 et seq. It is not clear, however, which provision of the NYLL gives rise
to the employer’s alleged fiduciary duty; Plaintiffs make only the generic allegation that
“Defendants occupy positions of trust in relation to Plaintiffs and all employees of Defendants,”
PSAC ¶ 77. Indeed, only two provisions of the identified sections apply to employers, both of
which prohibit them from “[p]articipat[ing] in or induc[ing] any conduct or act which violates any
of the obligations of any officer or agent of a labor organization.” NYLL §§ 724, 725(3). Plaintiffs’
conclusory and speculative claims, however, do not state a claim under either provision. Plaintiffs
allege that Defendants “planned the premature and unlawful termination of the CBA without

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giving notice to Defendants [sic],” PSAC ¶ 44, and that Defendants colluded so as to call a
“meeting knowing that the majority [of union members] would not be able to attend.” Id. ¶ 49.
But Plaintiffs do not assert any facts to make these conclusory allegations plausible. Plaintiffs
also allege that the president of Local 854 Dany Garo “visited a garage in the Bronx where
Plaintiffs work” approximately one month before the Plaintiffs’ termination and “had a
conversation with Victor Irizarry, one of the Defendants’ drivers,” in which he “stated that Local
854 will merge with Local 553.” Id. ¶¶ 40–42. Contrary to Plaintiffs’ argument, however, this
alleged meeting and disclosure does not support Plaintiffs claim that it is therefore “obvious that
Defendants and Local 854, which are believed to be working in collusion with each other, knew
and planned ahead of time to terminate the CBA” and had sufficient time to send advanced notice
of the alleged layoffs. Pls. Opp. Mot. Dismiss 5. In sum, Plaintiffs have failed to state a NYLL
claim for an employer’s breach of fiduciary duty; the proposed amendment is thus futile.
Plaintiffs’ breach of fiduciary duty claim also fails because it would require interpretation
of the CBA and is accordingly preempted.

Plaintiffs allege that, “Defendants’ unlawful

termination of Plaintiffs, breach of the CBA, unlawful reduction of Plaintiffs salaries, and
misappropriation of funds,8 amount to a breach of fiduciary duty . . . . By virtue of the foregoing,
Defendants have violated provisions of the New York Labor Law and the CBA by breaching the
fiduciary duties and by engaging in prohibited actions.” PSAC ¶¶ 78–79. Plaintiffs specifically
allege that Defendants breached their fiduciary duties by acting in contravention of the CBA; there
can therefore be no dispute that this claim requires interpretation of the CBA. With respect to the
claims that Defendants unlawfully terminated Plaintiffs and reduced their salaries, as already
discussed, see supra at 7–11, as far as the Court is aware, the only basis for these duties is the CBA

8

With respect to the allegation that Defendants misappropriated certain funds, Plaintiffs offer no factual
support for this claim; therefore, this claim fails on plausibility grounds.

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itself; therefore, these claims rely on an interpretation of the CBA and are also preempted. See,
e.g., Buote v. Verizon New England, 190 F. Supp. 2d 693, 703 (D. Vt. 2002) (“To the extent that
[plaintiff] claims breach of provisions of the Labor Contract, his breach of contract and fiduciary
duty claims are necessarily preempted by the LMRA.”) (footnotes omitted); Thurber v. United
Parcel Serv., Inc., No. 05-CV-159, 2007 WL 3046261, at *3 (D. Vt. Oct. 16, 2007) (“[Plaintiff]
has failed to demonstrate the existence of any contract between the parties except the CBA; any
fiduciary duties UPS owed to Thurber are accordingly defined therein.”).
C. Claims 4, 8, and 10: Breach of Contract, Unlawful Termination, and Unjust
Enrichment
For the reasons discussed above, see supra at 7–11, Plaintiffs’ proposed amendments to
their breach of contract, negligence, unlawful termination and unjust enrichment require
interpretation of the CBA and are thus preempted by the LMRA.

See PSAC ¶¶ 85–86

(“Defendants reduced Plaintiffs’ salaries, stripped away their earned vacation, and cancelled other
benefits. As a direct and proximate cause of Defendants’ breach of the CBA, Plaintiffs suffered
damages); Id. ¶ 107 (“Plaintiffs were unlawfully terminated in violation of the CBA, almost two
(2) years before the expiration of the CBA.”); Id. ¶ 114 (“Defendants have been unjustly enriched
as a result of their unlawful reduction in salaries and cancellation of vacation days.”).
D. Claim 5: Violation of § 301 of the LMRA
Plaintiffs’ fifth proposed cause of action, which alleges that Defendants acted in violation
of § 301 of the LMRA, is untimely. Plaintiffs are therefore denied leave to amend.
“Section 301 of [the LMRA], 29 U.S.C. § 185, governs the employer’s duty to honor the
collective bargaining agreement, and the duty of fair representation is implied under the scheme
of the National Labor Relations Act (the “NLRA”).” White v. White Rose Food, a Div. of
DiGiorgio Corp., 128 F.3d 110, 113 (2d Cir. 1997) (citing DelCostello, v. Int’l Bhd. of Teamsters,
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462 U.S. 151, 164 (1983)). “In order to provide individual employees with recourse when a union
breaches its duty of fair representation in a grievance or arbitration proceeding, the Supreme Court
has held that an employee may bring suit against both the union and the employer.” Carrion v.
Enter. Ass’n, Metal Trades Branch Local Union 638, 227 F.3d 29, 33 (2d Cir. 2000) (citing
DelCostello, 462 U.S. at 164). “The employee may sue the employer, the union, or both in a
hybrid § 301/fair representation claim; to prevail the employee ‘must not only show that [his]
discharge was contrary to the contract, but must also carry the burden of demonstrating breach of
duty by the Union.’” Id. (quoting DelCostello, 462 U.S. at 165).

“A hybrid § 301/fair

representation claim is subject to a six-month statute of limitations which governs the claims
against both the employer and the union.” Arnold v. 1199 SEIU, 420 F. App’x 48, 50 (2d Cir.
2011) (internal citations and quotations omitted); see also McKee v. Transco Products, Inc., 874
F.2d 83, 86 (2d Cir. 1989) (“Plaintiffs cannot circumvent the six-month limitations period for
hybrid actions by choosing to sue only their employer.”). “The limitations period . . . ‘begins to
run when the employee knew or should have known of the breach of the duty of fair
representation.’” Carrion, 227 F.3d at 34 (quoting White, 128 F.3d at 114).
Plaintiffs filed this action on July 21, 2015. They allege that they were unlawfully
terminated on August 13, 2013. PSAC ¶ 56. They further allege that Defendants breached the
CBA on August 22, 2013 when Local 854, purportedly in collusion with the Defendants, held a
meeting where the employees were told that “if [they] wanted to work, then they had to vote to
‘open contract’ in order to authorize Local 854 to reopen the CBA.” PSAC ¶ 57-58. Plaintiffs thus
knew or should have known of the alleged breach well over six months prior to filing this action.
Plaintiffs’ LMRA claim is barred as untimely.
E. Claim 6: Negligence

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Plaintiffs’ amended negligence claim fails to remedy the deficiencies identified above. See
supra at 11–12. First, Plaintiffs’ allegation that “Defendants violated its own policies and
responsibilities towards Plaintiffs” without identifying any such policies or responsibilities, is too
conclusory to state a claim. PSAC ¶ 95. Second, the allegations that Defendants discriminated
against Plaintiffs based on the length of their tenure does not give rise to a tort under New York
law. See Baguer, 2007 WL 2780390, at *4. Plaintiffs also concede in their Reply that their
negligence claim is premised on “a reasonable duty of care on the part of Defendants, under
common law, to follow customary practices and procedures set forth in the CBA.” Pls.’ Reply at
7. This claim is thus also preempted by the LMRA. See Almonte v. Coca-Cola Bottling Co. of
N.Y., Inc., 959 F. Supp. 569, 577 (D. Conn. 1997) (holding negligence claims were preempted by
LMRA where they depended on interpretation of the CBA).
F. Claim 7: Violation of 29 U.S.C. § 158
Plaintiffs’ seventh cause of action alleges that Defendants violated 29 U.S.C. § 158(a)(3),
which prohibits an employer from discriminating against any employee “in regard to hire or tenure
of employment or any term or condition of employment to encourage or discourage membership
in any labor organization.” “This court, however, “lacks subject matter jurisdiction to entertain
plaintiff’s claims because [the National Labor Relations Board (the “NLRB”)] has exclusive
jurisdiction over these claims.” Husain v. Smarte Carte Inc., No. 10-CV-1844 (KAM), 2011 WL
1642591, at *3 (E.D.N.Y. May 2, 2011); see also Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 277
(2d Cir. 2005) (“The Supreme Court held in San Diego Building Trades Council v. Garmon, 359
U.S. 236, 244–47 (1959), that neither state nor federal courts have jurisdiction over ‘activity [that]
is arguably subject to § 7 or § 8 of the Act,’ id. at 245.”) (alteration in original); Benjamin v. Health
& Hosps. Corp., No. 07-CV-2487 (KAM), 2009 WL 2959622, at *11 (E.D.N.Y. Sept. 11, 2009),

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aff’d, 394 F. App’x 829 (2d Cir. 2010) (holding amendment would be futile where “the court lacks
subject matter [jurisdiction] to entertain plaintiff's NLRA claims, as the National Labor Relations
Board has exclusive jurisdiction over such claims”); Commer v. Am. Fed'n of State, Cty. & Mun.
Emps., 272 F. Supp. 2d 332, 339 (S.D.N.Y. 2003), aff’d, 390 F.3d 203 (2d Cir. 2004) (“Congress
has entrusted enforcement of the NLRA to the [NLRB]). Accordingly, the Court may not hear
Commer’s claim under 29 U.S.C. § 158.”) (internal citation omitted).
G. Claim 9: Attorney’s Fees
Finally, Plaintiffs’ ninth cause of action is for attorney’s fees. Attorney’s fees, however,
are a form of relief, not a claim upon which relief can be granted. Jaffe v. Capital One Bank, No.
09-CV-4106 (PGG), 2010 WL 691639, at *10 (S.D.N.Y. Mar. 1, 2010). Plaintiffs are therefore
denied leave to amend to add this claim.
CONCLUSION
Defendants’ motion to dismiss this action is granted, and Plaintiffs’ motion for leave to file
the PSAC is denied. As stated above, Plaintiffs may submit a letter to the Court by July 1, 2016
indicating (1) whether they seek to amend their federal and/or state WARN Act claims, and (2)
whether they plan to bring LMRDA claims, and, if so, why such claims are not barred by the
statute of limitations. Defendants shall have until July 8, 2016 to respond. The Clerk of Court is
respectfully directed to terminate the motions pending at docket entries 12 and 24.
SO ORDERED.
Dated:

June 20, 2016
New York, New York
Ronnie Abrams
United States District Judge

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