Latham v. ABX Air, Inc. et al

Filing 23

ORDER granting 5 Motion to Dismiss; granting 13 Motion to Dismiss for Failure to State a Claim. Signed by Judge S Arthur Spiegel on 6/26/2012. (jlw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
THEODORE LATHAM,

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Plaintiff,
v.
ABX AIR, INC., et al.,
Defendants.

NO. 1:11-CV-00369

OPINION AND ORDER

This matter is before the Court on Defendant ABX Air,
Inc.’s

Motion

to

Dismiss

(doc.

5),

Plaintiff’s

Response

in

Opposition (doc. 15), and Defendant’s Reply (doc. 17). Also before
the Court is Defendant Airline Professional’s Association’s Motion
to Dismiss (doc. 13), Plaintiff’s Response in Opposition (doc. 16),
and Defendant’s Reply (doc. 18). For the reasons indicated herein,
the Court GRANTS Defendants’ motions and DISMISSES this matter from
the Court’s docket.
I.

Background
Plaintiff airline pilot brings this action against his

former

employer

Professionals

ABX

Air,

Association

Inc.,
of

(“ABX”)

the

and

Teamsters

the
Local

Airline
1224,

International Brotherhood of Teamsters (the “Union”), claiming
ABX violated terms of a collective bargaining agreement and that
the Union intentionally breached its duty to fairly represent him
with respect to his seniority (doc. 1).

Plaintiff started working

as a pilot for ABX on October 4, 1996, and then became an Assistant
Manager of Flight Standards until he was furloughed in August 2009
(Id.). In October 2009, ABX rehired Plaintiff as Manager of Flight
Crew Standards and issued him a new hire date for seniority
purposes, but then two weeks later eliminated such position and
furloughed Plaintiff again (Id.).

Plaintiff contends he met with

ABX management before leaving and they assured him his original
hire date would be reinstated (Id.).

A year later, Defendant

issued recall letters to furloughed pilots, including pilots with
both higher and lower seniority numbers than Plaintiff (Id.).
Plaintiff did not receive a letter, and upon inquiry, ABX told
Plaintiff that he was stripped of his seniority to settle a
grievance with the Union (Id.).

Two other management pilots who

were furloughed out of management with Plaintiff, received recall
letters and were returned to the crew line based on their original
hire dates (Id.).
Plaintiff contends ABX’s actions amount to a breach of
contract for failing to enforce terms of the collective bargaining
contract regarding his seniority and for failing to recall him
(doc. 1).

He further contends ABX intentionally or negligently

represented to him that he would retain his seniority based on his
original hire date, and negligently represented that any issues
with his correct seniority would be corrected (Id.).

Plaintiff

alleges that both ABX and the Union have acted in bad faith and
2

with malice toward his rights by failing to provide documentation
or

information

Plaintiff

regarding

contends

the

his

seniority

Union

rights

breached

its

(Id.).
duty

Next,
of

fair

representation to him by settling a grievance without notice to
Plaintiff that he was being stripped of his seniority (Id.).
Finally, Plaintiff seeks declaratory judgment that his seniority be
based on his original hire date of October 4, 1996 (Id.).
In their instant motions, both Defendants move to dismiss
Plaintiff’s Complaint under the theories that it fails to state
claims upon which relief may be granted and that Plaintiff’s claims
are

outside

the

jurisdiction

of

this

Court

(docs.

5,

13).

Plaintiff has responded and Defendants have replied such that this
matter is ripe for the Court’s consideration.
II.

Applicable Legal Standard
Rule 12(b)(1) provides that an action may be dismissed

for “lack of subject-matter jurisdiction.”

Fed.R.Civ.P. 12(b)(1).

Plaintiffs bear the burden of proving jurisdiction when challenged
by a Rule 12(b)(1) motion. Moir v. Greater Cleveland Reg’l Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990)(citing Rogers v. Stratton
Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)). “[T]he plaintiff
must show that the complaint alleges a claim under federal law, and
that the claim is substantial.”

Mich. S. R.R. Co. v. Branch & St.

Joseph Counties Rail Users Ass’n, Inc., 287 F.3d 568, 573 (6th Cir.
2002) (internal quotations omitted) (quoting Musson Theatrical,
Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)).
3

“The plaintiff will survive the motion to dismiss by showing ‘any
arguable basis in law’ for the claims set forth in the complaint.”
Id. (quoting Musson Theatrical, 89 F.3d at 1248).
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) requires the Court to determine whether a
cognizable claim has been pled in the complaint. The basic federal
pleading requirement is contained in Fed. R. Civ. P. 8(a), which
requires that a pleading "contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief."
Westlake v. Lucas, 537 F.2d 857, 858 (6th
Pardus, 551 U.S. 89 (2007).

Cir. 1976); Erickson v.

In its scrutiny of the complaint, the

Court must construe all well-pleaded facts liberally in favor of
the party opposing the motion.
236 (1974).

Scheuer v. Rhodes, 416 U.S. 232,

A complaint survives a motion to dismiss if it

“contain[s] sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”

Courie v. Alcoa

Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009),
quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
A motion to dismiss is therefore a vehicle to screen out
those

cases

implausible.

that

are

impossible

as

well

as

those

that

are

Courie, 577 F.3d at 629-30, citing Robert G. Bone,

Twombly, Pleading Rules, and the Regulation of Court Access, 94
IOWA L. REV. 873, 887-90 (2009).

A claim is facially plausible

when the plaintiff pleads facts that allow the court to draw the
4

reasonable inference that the defendant is liable for the conduct
alleged.

Iqbal, 129 S.Ct. at 1949.

Plausibility falls somewhere

between probability and possibility. Id., citing Twombly, 550 U.S.
at 557.

As the Supreme Court explained,

“In keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to
the assumption of truth. While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. at 1950.
The

admonishment

to

construe

the

plaintiff's

claim

liberally when evaluating a motion to dismiss does not relieve a
plaintiff of his obligation to satisfy federal notice pleading
requirements
conclusions.

and

allege

Wright,

more

Miller

than
&

Procedure: § 1357 at 596 (1969).

bare

Cooper,

assertions
Federal

of

legal

Practice

and

"In practice, a complaint . . .

must contain either direct or inferential allegations respecting
all of the material elements [in order] to sustain a recovery under
some viable legal theory."

Car Carriers, Inc. v. Ford Motor Co.,

745 F.2d 1101, 1106 (7th Cir. 1984), quoting In Re: Plywood
Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. 1981); Wright,
Miller & Cooper, Federal Practice and Procedure, § 1216 at 121-23
(1969).

The United States Court of Appeals for the Sixth Circuit

clarified the threshold set for a Rule 12(b)(6) dismissal:
[W]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind Rule 8 and the
concept of notice pleading.
A plaintiff will not be
5

thrown out of court for failing to plead facts in support
of every arcane element of his claim.
But when a
complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th
Cir. 1988).
III.

Discussion
The parties agree, and the Court does as well, that

Plaintiff’s contract claim in the first count of his Complaint
constitutes a “minor” dispute for purposes of the Railway Labor
Act, 45 U.S.C. §§ 151 et seq., because it is premised on an alleged
violation of a collective bargaining agreement (“CBA”).

Airline

Professionals Assoc. v ABX, 400 F.3d 411, 414-15 (6th Cir. 2005)
(minor disputes can be resolved by interpreting the terms of the
CBA, and if there is any doubt as to whether a dispute is major or
minor, a court will construe the dispute to be minor), CSX Transp.,
Inc. v. Marquar, 980 F.2d 359, 361 n.2 (6th Cir. 1992), Kaschak v.
Consolidated Rail Corp., 707 F.2d 902, 904-05 (6th Cir. 1983)(minor
disputes are outside a federal court’s jurisdiction and are subject
to dismissal pursuant to Rule 12(b)(1)). As such, the only way for
the Court to exercise jurisdiction over such claim is if Plaintiff
successfully alleges a “hybrid” duty of fair representation (“DFR”)
claim tied to the contract claim.

Kaschak, 707 F.2d at 913.

In order to assert a claim for violation of duty of fair
representation, a member of the collective bargaining unit must
allege

the

union’s

conduct

toward
6

him

is

“arbitrary,

discriminatory, or in bad faith.”
(1967).

Vaca v. Sipes, 386 U.S. 171

“[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

reasonableness’ as to be irrational.”

outside

a

‘wide

range

of

Air Line Pilots Ass’n Int’l

v. O’Neill, 499 U.S. 65, 67 (1991)(quoting Ford Motor Co. v.
Huffman, 345 U.S. 330, 338 (1953).
In this case, the parties dispute as to whether Plaintiff
is a “covered employee” in the collective bargaining unit, as he
was a member of managment, and because he had signed a withdrawal
card at the time of his “severance” as Defendants frame it, or his
“furlough,” as Plaintiff frames it.

However, the Court need not

resolve any of these issues as it is clear that “[a]n employee
seeking a remedy for his employer’s breach of the collective
bargaining agreement and his union’s breach of its duty of fair
representation

must

exhaust

the

grievance

and

arbitration

procedures established by the collective bargaining agreement. . .”
Wiggins v. Chrysler Corp., 728 F. Supp. 463, 466 (N.D. Ohio
1989)(citing Republic Steel Corp. v. Maddox, 379 U.S 650, 652-53
(1965)).
As such, if Plaintiff was indeed covered by the CBA, he
had a duty to exhaust a grievance with the union, something which
the allegations of his Complaint do not show he accomplished.
Plaintiff’s Complaint makes the bare allegation that “his attempts
to pursue this matter through the union and ABX have been futile”
7

(doc. 1).

However, he has failed to plead any effort to invoke or

exhaust any internal union grievance procedures, or any reason why
such failure should be excused.
1:10-CV-450,

Spicer v. Ford Motor Co., No.

2011 U.S. Dist. LEXIS 51608, *11-14 (S.D. Ohio, May

13, 2011)(citing LaPerriere v. UAW, 348 F.3d 127, 131 (6th Cir.
2003) for the proposition that an employee has a duty to pursue an
appeal with the union even when told at the local level that an
appeal would bring no benefits).

At most Plaintiff indicates he

left a few phone calls with the union that were not returned, and
this hardly constitutes hostility rising to the level showing union
officials were “so hostile” such that Plaintiff “could not possibly
obtain a fair hearing.”

Clayton v. Int’l Union, 451 U.S. 679, 689

(1981).

circumstances,

Under

these

the

Court

agrees

with

Defendants that Plaintiff has failed to state a claim against the
union for breach of duty of fair representation.

Accordingly, the

Court also lacks jurisdiction over Plaintiff’s breach of contract
claim.
Defendant ABX further contends that because Plaintiff did
not respond to its challenges to his intentional misrepresentation,
bad faith, and declaratory judgment claims, each of such claims
should be dismissed, while the union similarly argues on the same
basis as to the claim levied against it for bad faith (docs. 17,
18, citing Scott v. Tennessee, 878 F.2d 382, 1989 WL 72470 at *2
(6th Cir. 1989)(“if a plaintiff fails to respond or otherwise oppose
a defendant’s motion [to dismiss], the then district court may deem
8

the plaintiff to have waived opposition to the motion), Sharp v.
Cleveland Metropolitan School Dist., 2009 U.S. Dist. LEXIS 5358,
*6-7 (N.D. Ohio January 12, 2009), Tiernan v. Sigma Capital, Inc.
Retirement Savings Plan, No. C-1-09-905, 2010 U.S. Dist. LEXIS
117818 (S.D. Ohio September 30, 2010). The Court finds Defendants’
position

well-taken,

Plaintiff’s

federal

and
law

in

any

claims

event,

are

concludes

dismissed,

the

that
Court

as
may

properly decline supplemental jurisdiction over these state law
claims.

For the same reason, the Court declines jurisdiction over

Plaintiff’s

only

misrepresentation.

remaining

claim,

against

ABX,

for

negligent

Carnegie-Mellon University v. Cohill, 484 U.S.

343, 356 (1988)(“[W]hen a removed case involves pendent state-law
claims, a district court has undoubted discretion to decline to
hear the case.”).
IV.

Conclusion
The Court concludes that because Plaintiff has failed to

allege that he exhausted his union remedies prior to filing this
lawsuit, and has failed to allege the requisite hostility at every
step of the grievance process so as to allow him to forgo such
remedies,

Plaintiff’s

representation

fails.

claim

for

As

such,

breach
the

of
Court

duty

of

further

fair
lacks

jurisdiction over his hybrid claim for breach of contract, which
constitutes a minor dispute for purposes of the applicable Railway
Labor Act.

Finally, the Court declines to exercise supplemental

jurisdiction over Plaintiff’s claim against ABX for negligent
9

misrepresentation, as well as the balance of Plaintiff’s claims,
which the Court nonetheless considers waived.
Accordingly, the Court GRANTS Defendants’ Motions to
Dismiss (docs. 5, 13), and DISMISSES this matter without prejudice
to refiling.

SO ORDERED.

Dated: June 26, 2012

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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