Fajfar v. The Cleveland Electric Illuminating Company et al
Memorandum Opinion & Order. Defendants' 4 Motion to Dismiss is granted. Plaintiff's claim(s) are hereby dismissed with prejudice as time-barred. Signed by Magistrate Judge Greg White on 8/6/2013. (S,S)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
THE CLEVELAND ELECTRIC
ILLUMINATING COMPANY, et al.,
CASE NO. 1:13-cv-00897
MAGISTRATE JUDGE GREG WHITE
MEMORANDUM OPINION & ORDER
I. Procedural and Factual Background
On March 15, 2013, Plaintiff James Fajfar (hereinafter “Plaintiff”) filed a Complaint in
the Cuyahoga County Court of Common Pleas, alleging claim(s) against his former employer,
the Cleveland Electric Illuminating Company (hereinafter “CEI”) and Utility Workers Union of
America, AFL-CIO, Local Union 270 (hereinafter “Local 270”). (ECF No. 1-1.) Plaintiff avers
that while employed with CEI, he was a member of Local 270. (ECF No. 1-1 at ¶¶3, 16.)
Plaintiff admits that he failed a drug test on April 18, 2011. (ECF No. 1-1 at ¶4.) On May 15,
2011, Plaintiff alleges that he entered into a “Last Chance Agreement (LCA)” with CEI, attached
to the Complaint as Exhibit A. (ECF No. 1-1 at ¶6.) Plaintiff avers that on May 27, 2011, he
was required to submit to or pass a drug/alcohol test pursuant to the LCA and that he complied.
(ECF No. 1-1 at ¶¶9-10.) Plaintiff claims his subsequent termination on June 9, 2011 was
contrary to the LCA. (ECF No. 1-1 at ¶13.) Plaintiff states that he filed a grievance with Local
270 the same date he was terminated. (ECF No. 1-1 at ¶17.) On July 1, 2011, Local 270
withdrew the grievance indicating no further action would be taken. (ECF No. 1-1 at ¶19, Exh.
E.) Plaintiff asserts that CEI breached the LCA while Local 270 failed in its duty as his
representative, resulting in joint and several liability. (ECF No. 1-1 at ¶¶14, 20-21.) While the
causes of action are not clearly set forth, Plaintiff is plainly attempting to raise a hybrid action
pursuant to § 301(a) of the Labor-Management Relations Act, 29. U.S.C. § 185(a) (hereinafter
“LMRA”) and concedes as much in his Brief in Opposition.1 (ECF No. 10 at 6.)
On April 22, 2013, Defendant CEI filed a Notice of Removal with the consent of
Defendant Local 270. (ECF No. 1.)
On April 9, 2013, CEI and Local 270 filed a joint Motion to Dismiss.2 (ECF No. 4.)
After multiple extensions, Plaintiff filed a brief in opposition on July 10, 2013, to which
Defendants replied on July 25, 2013. (ECF Nos. 10 & 11.) This matter is now fully briefed.
II. Civil Rule 12(b)(6) Standard
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6) “should not be granted unless it appears beyond a doubt that the plaintiff can prove no
set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S.
41, 45-46 (1957). Well-pleaded allegations must be taken as true and construed most favorably
toward the non-moving party. See, e.g., Mayer v. Mylod, 988 F.2d 635, 637 (6th Cir. 1993).
“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is
Plaintiff’s prior suit against Defendant CEI only was also on this Court’s docket. See
Fajfar v. Cleveland Electric Illuminating Company, 1:11-cv-02524. Therein, after CEI
filed a motion to dismiss, Plaintiff voluntarily dismissed. (ECF Nos. 4 & 15.)
Pursuant to the consent of the parties, this action was transferred to this Court on May
13, 2013. (ECF No. 6.)
inapplicable to legal conclusions[, as] [t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Although a court may not
grant a Rule 12(b)(6) motion based on its disbelief of the factual allegations contained in the
complaint, Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990), a court “need not accept as
true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Fried Chicken,
829 F.2d 10, 12 (6th Cir. 1987). “In order to survive a motion to dismiss under Rule 12(b)(6), a
complaint must appear ‘plausible’ on its face, if all of its factual allegations are assumed to be
true.” Alli v. City of New York, 2012 WL 4887745 (S.D.N.Y. Oct. 12, 2012) (citing Iqbal, 556
U.S. at 678; Twombly, 550 U.S. at 560–70. Consequently, a claim should not be dismissed
unless it is unsupported by the law or the facts alleged are insufficient.
When ruling on motions to dismiss, a Court should normally look no further than the
complaint, but “[d]ocuments that a defendant attaches to a motion to dismiss are considered part
of the pleadings if they are referred to in the plaintiff’s complaint and are central to [plaintiff’s]
claim.” Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir.1997) (citations omitted); see also
Bassett v. Nat'l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008); Amini v. Oberlin
Coll., 259 F.3d 493, 502 (6th Cir. 2001).
A. § 301 Preemption
As a threshold matter, Plaintiff’s brief in opposition concedes that the Complaint raises a
hybrid § 301 cause of action. (ECF No. 10 at 6.)
“A hybrid section 301 action involves two constituent claims: breach of a collective
bargaining agreement by the employer and breach of the duty of fair representation by the
union.” Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 583 (6th Cir.1994) (citation
omitted). The two claims are “inextricably interdependent.” DelCostello v. Teamsters, 462
U.S. 151, 164, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) (internal quotation marks and
citation omitted). Unless a plaintiff “demonstrates both violations, he cannot succeed
against either party.” Bagsby v. Lewis Bros. Inc. of Tenn., 820 F.2d 799, 801 (6th Cir. 1987)
(emphasis omitted). In order to prove a breach of the duty of fair representation, an
employee must demonstrate that the union’s actions or omissions during the grievance
process were arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 87
S.Ct. 903, 17 L.Ed.2d 842 (1967). Each of these wrongs is mutually independent, meaning,
that “the three named factors are three separate and distinct possible routes by which a
union may be found to have breached its duty.” Black, 15 F.3d at 584. “Actions for a
union’s breach of its duty of fair representation depend for their rationale on the union’s
otherwise-complete control over the handling of an employee’s grievance.” Id. “Just as ...
fiduciaries owe their beneficiaries a duty of care as well as duty of loyalty, a union owes
employees a duty to represent them adequately as well as honestly and in good faith.” Air
Line Pilots Ass’n Int’l v. O'Neill, 499 U.S. 65, 75, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991)
(citations omitted). There is no requirement, however, that the grievance process be
“error-free.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571, 96 S.Ct. 1048, 47
L.Ed.2d 231 (1976).
Garrison v. Cassens Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003)
To the extent Plaintiff may assert that his Complaint also raises separate state law claims,
all of his claims involve alleged breaches of the LCA and/or the collective bargaining agreement
and are, therefore, preempted by § 301 of the LMRA. See, e.g., Perez v. Roadway Exp., Inc.,
281 F. Supp. 2d 936, 938 (N.D. Ohio 2003). In Perez, the court observed that preemption of
state law claims is “well established.” Id. It found that the plaintiff’s claims – state-law based
allegations of fraud in the inducement, breach of contract, and breach of fiduciary duty all based
on state law – comprised a classic § 301 hybrid action, and, therefore, were preempted because
resolution of the claims required reference to and interpretation of a collective bargaining
agreement. Id.; see also Northwestern Ohio Adm’rs, Inc. v. Walcher & Fox, Inc., 270 F.3d 1018,
1030 (6th Cir. 2002) (explaining that “[s]ince federal law is the exclusive law used to interpret the
duties and obligations contained within collective bargaining agreements, any state law claim
that is not independent of rights established by an agreement, and that is ‘inextricably
intertwined’ with a determination of the meaning of the terms of an agreement, is preempted by
section 301”); Winters v. Ford Motor Co., 2006 U.S. Dist. LEXIS 90243, 12-13 (E.D. Mich.
Dec. 12, 2006) (“where a purported state law claim requires interpretation of, or is substantially
dependent on, a pertinent collective bargaining agreement or other superseding contract between
an employer and a labor organization – such as a last chance agreement – federal labor law must
be used to resolve the dispute. If not, the claim(s) must be dismissed.”)
As explained by the Sixth Circuit Court of Appeals, “section 301 constitutes an exception
to the well-pleaded complaint rule because the pre-emptive force of § 301 is so powerful as to
displace entirely any state cause of action for violation of contracts between an employer and a
labor organization.” Fox v. Parker Hannifin Corp., 914 F.2d 795, 799 (6th Cir. 1990) (internal
quotation marks omitted) (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust,
463 U.S. 1, 23 (1983)). Therefore, Plaintiff’s Complaint raises only one cognizable cause of
action – a § 301 hybrid claim under LMRA. As such, the rules governing such actions apply to
the case at bar.
B. Statute of Limitations
CEI and Local 270 argue that the Complaint should be dismissed as the § 301 hybrid action
is time-barred. (ECF Nos. 4 at 5-6; 11 at 1-3.) With respect to such actions, a six-month statute
of limitations applies:
Section 10(b) of the National Labor Relations Act (“NLRA”) provides in relevant
part “that no complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board.” 29 U.S.C.
§ 160(b). This statute of limitations is borrowed from and applies to breach
of collective bargaining agreement claims against employers as well as fair
representation claims against unions. See DelCostello v. Int’l Bhd. Of
Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); see also Martin
v. Lake County Sewer Co., 269 F.3d 673 (6th Cir. 2001). To determine when a
cause of action accrues, the court is to look at “‘when an employee discovers, or
should have discovered with exercise of due diligence, acts giving rise to the
cause of action.’” Martin, 269 F.3d at 678–79 (quoting Wilson v. Int'l Bhd. of
Teamsters, Chauffeurs, Warehousemen, and Helpers of Am., 83 F.3d 747, 757 (6th
Cir. 1996)). “The determination of the accrual date is an objective one: ‘the
asserted actual knowledge of the plaintiffs is not determinative if they did not act
as reasonable persons and, in effect, closed their eyes to evident and objective
facts concerning the accrual of their right to sue.’” Noble v. Chrysler Motors
Corp., 32 F.3d 997, 1000 (6th Cir. 1994) (quoting Chrysler Workers Ass’n v.
Chrysler Corp., 834 F.2d 573, 579 (6th Cir. 1987)). “[A] hybrid § 301 action
accrues against the company when it accrues against the union.” Moore v. United
Auto. Aerospace, Agric. Implement Workers of Am. Int'l Union Local 598, 33
Fed.Appx. 165 (6th Cir. 2002) (citing Fox v. Parker Hannifin Corp., 914 F.2d 795,
803 (6th Cir. 1990)).
Perez v. Roadway Exp., Inc., 281 F. Supp. 2d 936, 939 (N.D. Ohio 2003) (emphasis added); see
also Wilson v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO,
83 F.3d 747, 757 (6th Cir. 1996) (“The statute of limitations for filing a hybrid Section 301/duty
of fair representation claim is six months.”); accord Cole v. Cleo, Inc., 301 F. App’x 402, 407
(6th Cir. 2008).
In the case at bar, the accrual date of the cause of action is straightforward. Pursuant to the
letter attached to the Complaint, Local 270 informed Plaintiff on July 1, 2011, that it would take
no further action on his behalf. (ECF No. 1-1 at ¶19, Exh. E.) As such, the six-month statute of
limitations began running at that time and expired on or about January 1, 2012. Plaintiff’s
previous suit was filed on October 19, 2011, within the six-month limitations period. (See
1:11-cv-02524, ECF No. 1.) Thereafter, Plaintiff voluntary dismissed his claim on February 22,
2012.3 (See 1:11-cv-02524, ECF Nos. 13 & 15.)
While Plaintiff sought leave to dismiss, the Court observed that “Plaintiff’s motion to
dismiss does not require this Court’s approval. Nonetheless, as Plaintiff has sought the
Plaintiff’s Brief in Opposition to Defendants’ Motion to Dismiss barely touches upon the
argument that the instant action is time barred. The entirety of Plaintiff’s argument on this point
is as follows:
Defendant, CEI’s, argument that Plaintiff attempts to Plead a Hybrid-6 Month
Sec.301 Claim under the LMRA and, thus, barred by the Statute of Limitations is
without merit. The previous action was not a “hybrid Sec.301 claim” as Local
270” was never a party. Further, the previous action was dismissed without
prejudice pursuant to Civil Rule 41(a)(1) and since Plaintiff has refiled in less
than one year his claims are not barred.
(ECF No. 10 at 6) (emphasis in original).
Essentially, Plaintiff attempts to raises two counter-arguments. The first appears to be that
the previous action was distinct and unrelated because it did not raise a § 301 hybrid action and
Local 270 was not a named Defendant. (ECF No. 10 at 6) Accepting for the sake of argument
that the previous action was unrelated, Plaintiff would not enjoy the benefit of any tolling or
savings statute, and his hybrid claim would have been untimely if not filed on or about January
Plaintiff’s second argument is also without merit. Plaintiff assumes, without citing any law,
that his claim is not barred by the statute of limitations, because he refiled his action within one
year of his voluntary dismissal. (ECF No. 10 at 6) As Plaintiff filed this action in an Ohio court,
this Court presumes that he is arguing that Ohio Revised Code (“O.R.C.”) § 2305.19(A) applies.
Commonly referred to as Ohio’s savings statute, it reads as follows:
(A) In any action that is commenced or attempted to be commenced, if in due
time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than
upon the merits, the plaintiff or, if the plaintiff dies and the cause of action
Court’s approval rather than filing a Notice of Dismissal, the motion to dismiss without
prejudice is granted.” (See 1:11-cv-02524, ECF No. 15.)
survives, the plaintiff’s representative may commence a new action within one
year after the date of the reversal of the judgment or the plaintiff’s failure
otherwise than upon the merits or within the period of the original applicable
statute of limitations, whichever occurs later. This division applies to any claim
asserted in any pleading by a defendant.
O.R.C. § 2305.19.
In a factually similar decision, the Sixth Circuit Court of Appeals held that Tennessee’s
savings statute could not be used to toll or extend the six-month statute of limitations applicable
to hybrid actions:
Plaintiff’s reliance on Tenn. Code Ann. § 28-1-105 (1986) to save his untimely
action is likewise misplaced. The Tennessee saving statute cannot be applied to
defeat the federal policy underlying the six-month statute of limitations of §
10(b). Although this court has not yet addressed this issue in the context of a
hybrid § 301 action, our previous holdings in Johnson v. Railway Express
Agency, 489 F.2d 525 (6th Cir. 1973), aff’d on other grounds, 421 U.S. 454, 44 L.
Ed. 2d 295, 95 S. Ct. 1716 (1975), and Burnett v. New York Cent. R.R. Co., 332
F.2d 529 (6th Cir. 1964), rev’d on other grounds, 380 U.S. 424, 13 L. Ed. 2d 941,
85 S. Ct. 1050 (1965), strongly imply such a result. In Johnson and Burnett this
court refused to apply state saving statutes to extend the time for filing an action
under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et
seq., and the Federal Employees’ Liability Act (FELA), 45 U.S.C. § 56,
respectively. Johnson, 489 F.2d at 530 (discussing the Tennessee saving statute in
relation to Title VII); Burnett, 332 F.2d at 530 (discussing both the Ohio and
Tennessee saving statutes in the context of the FELA). In those opinions, we
concluded that the strong federal policy of uniformity underlying the federal
statutes precluded application of the state saving statutes. This same reasoning
applies in the present case as application of Tenn. Code Ann. § 28-1-105 (1986)
would tilt the balance struck between the national interests in stable bargaining
relationships and finality of private settlements and likewise detract from the
uniformity achieved by consistently applying the six-month time period contained
in § 10(b) of the National Labor Relations Act. See DelCostello v. International
Bhd. of Teamsters, 462 U.S. 151, 171, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983).
Davis v. Smith’s Transfer, Inc., 841 F.2d 139, 140 (6th Cir. 1988).
Relying on the holding in Davis, the United States District Court for Southern Ohio found
that “both logic and the weight of authority confirm that the Ohio savings provision found at
Ohio Rev. Code § 2305.19(A) cannot be applied to extend the limitations period applicable to
the federal hybrid claim” and dismissed the action as time-barred. Lee v. Nat'l Ass'n of Letter
Carriers, 2009 U.S. Dist. LEXIS 125395 (S.D. Ohio Jun. 22, 2009). In another analogous case,
the United States District Court for Central Illinois found that Illinois’s savings statute, which
allows a plaintiff one year from the date that a complaint is voluntarily dismissed in which to file
new action, does not apply to § 301 hybrid actions brought in federal court under the LMRA.
Beck v. Caterpillar Inc., 855 F. Supp. 260 (C.D. Ill. 1994) aff’d, 50 F.3d 405 (7th Cir. 1995)
(explaining that federal courts have original federal question jurisdiction over such claims and
that the plaintiff’s voluntary dismissal of hybrid claims did not trigger the savings statute and,
therefore, did not allow plaintiff an additional year in which to reinstitute the action).
Based on the weight of the above authority, Ohio’s savings statute cannot be used to toll the
applicable six-month statute of limitations. The assumption of Plaintiff’s counsel that he had
one year to refile after a voluntary dismissal without prejudice has no basis in federal rules or
laws. “[N]umerous federal courts have made clear, a voluntary dismissal without prejudice
under Rule 41(a) leaves the situation as if the action never had been filed.” Wright and Miller, 9
Fed. Prac. & Proc. Civ. § 2367 (3d ed.). As explained by the Sixth Circuit, a plaintiff’s
argument “that the filing of a complaint which is later dismissed without prejudice tolls the
statutory filing period finds little support in the federal courts. It is generally accepted that a
dismissal without prejudice leaves the situation the same as if the suit had never been brought,
and that in the absence of a statute to the contrary a party cannot deduct from the period of the
statute of limitations the time during which the action so dismissed was pending.” Wilson v.
Grumman Ohio Corp., 815 F.2d 26, 27 (6th Cir. 1987) (citing with approval Bomer v. Ribicoff,
304 F.2d 427 (6th Cir. 1962)). Although the Wilson decision did not involve an LMRA claim, its
explanation is applicable to dismissals without prejudice in all civil actions, including hybrid
actions under LMRA.
Although plaintiff commenced his second lawsuit4 within six months of when the
limitations period began to run, the limitations period was not tolled because that
lawsuit was voluntarily dismissed under Fed.R.Civ.P. 41(a). Davis v. Smith’s
Transfer, Inc., 841 F.2d 139 (6th Cir.1988). Accord Beck v. Caterpillar Inc., 50
F.3d 405 (7th Cir.1995). In Davis, the plaintiff filed a § 301 action within the
six-month statutory period, voluntarily dismissed the action, and refiled the case
less than a year later. This court held that the second action was not timely
because (1) the filing of the first lawsuit had no effect on the limitations period
since it had been voluntarily dismissed, and (2) the “Tennessee saving statute
cannot be applied to defeat the federal policy underlying the six-month statute of
limitations of § 10(b).” 841 F.2d at 140.
Howell v. Gen. Motors Corp., 19 Fed. App’x 163, 166 (6th Cir. 2001).
Because Ohio’s savings statute is inapplicable and Plaintiff’s previous voluntary dismissal
had no impact on the statute of limitations pursuant to federal rules of procedure, Plaintiff’s §
301 hybrid action was filed well beyond the six-month statute of limitations. Since the
Complaint is time-barred, the Court declines to address Defendants’ argument that Plaintiff has
failed to state a plausible claim for relief.
For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 4) is GRANTED.
Plaintiff’s claim(s) are hereby dismissed with prejudice as time-barred.
IT IS SO ORDERED.
/s/ Greg White
U.S. Magistrate Judge
Date: August 6, 2013
It was the plaintiff’s third lawsuit that was deemed untimely.
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