Cloke v. Yeggy et al

Filing 63

ORDER that plaintiff's 40 MOTION for additional time is Denied as Moot. Defendants' 55 MOTION to strike plaintiff's reply memorandum in part is Granted; and plaintiff's 49 MOTION to withdraw his motion to proceed to tria l is Denied as Moot. REPORT AND RECOMMENDATION that plaintiff's 58 MOTION to amend the complaint be Denied; defendants UBC, McCarron and Yeggy's 37 MOTION to dismiss the amended complaint be Granted; the new party defendants' [46 ] MOTION to dismiss the amended complaint be Granted; and plaintiff's 42 51 MOTIONS to proceed to trial be Denied as Moot. Any appeal of this matter would not be taken in good faith and therefore, deny plaintiff leave to appeal in forma pauperis. ( Objections to R&R due by 3/4/2013). Signed by Magistrate Judge Karen L. Litkovitz on 2/15/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ALFRED K. CLOKE, III,
Plaintiff,

Case No. 1:11-cv-677
Black, J.
Litkovitz, M.J.

vs.
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, et al.,
Defendants.

ORDER AND REPORT AND
RECOMMENDATION

Plaintiff, proceeding pro se, filed the original complaint in this action against defendants
United Brotherhood of Carpenters and Joiners of America (UBC), Bobby Y eggy and Douglas
McCarron on October 14,2011. (Doc. 3). Plaintiff subsequently filed an amended complaint on
May 9, 2012, naming these defendants and adding as defendants Donald Crane 1, Todd
Ruswinkle, Todd Weinbrecht, Keith Kistler, Bob Elliott, Jason Clark, E.J. Scheiderer, Jack
Lamb, Buck Rector, Jerry Thornsberry, Millwrights and Pile Drivers Local Union 1090 (Local
1090), David Tharp, and the Indiana/Kentucky/Ohio Regional Council of Carpenters (IKORCC).
(Doc. 32). The lawsuit arises out ofthe merger of several local unions, which plaintiff claims
violated his rights under the Labor Management Reporting and Disclosure Act (LMRDA), 29
U.S.C. §§ 411 and 481, and§ 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. §
185.
This matter is before the Court on the following motions filed by plaintiff: ( 1) plaintiffs
motion for additional time to file a response to defendants' answers to the amended complaint
(Doc. 40); (2) plaintiffs motions to proceed to trial (Docs. 42, 49, 51), defendants UBC, Yeggy,
and McCarron's motion to strike in part motion to proceed to trial (Doc. 55), plaintiffs motion to

withdraw motion to proceed to trial (Doc. 57), and defendants' response in opposition to
plaintiffs motion to withdraw motion to proceed to trial (Doc. 61); and (3) plaintiffs motion to
amend the complaint (Doc. 58), defendants' memoranda in opposition to the motion (Docs. 60,
61), and plaintiffs reply in support ofhis motion (Doc. 62).
The matter is also before the Court on (1) the motion to dismiss the amended complaint
filed by defendants UBC, Yeggy and McCarron (Doc. 3 7), plaintiffs memorandum in
opposition (Doc. 41), and defendants' reply (Doc. 47); and (2) the motion to dismiss the
amended complaint filed by defendants UBC, Yeggy, and McCarron and newly-added
defendants Crane, Ruswinkle, Weinbrecht, Kistler, Elliott, Clark, Scheiderer, Lamb, Rector,
Thornsberry, Local1090, Tharp, and the IKORCC (Doc. 46), plaintiffs memorandum in
opposition (Doc. 52), and defendants' reply in support of their motion (Doc. 56).

I. Plaintiff's amended complaint
Plaintiff makes the following allegations in support of his claims: On August 8, 2011,
pursuant to§ 6(A) of the UBC General Constitution2, UBC General President McCarron
dissolved the Ohio and Vicinity Regional Council of Carpenters (OVRCC) and merged it with
the Indiana/Kentucky Regional Council of Carpenters (IKRCC), thereby forming the new
Indiana/Kentucky/Ohio Regional Council of Carpenters (IKORCC). (Doc. 32, § 1, p. 6). This
merger was accomplished by a "military style assault" on the OVRCC's offices in Cleveland,

1

The amended complaint incorrectly identifies Donald Crane as "Dan Crane."
The UBC General Constitution is attached as an exhibit to defendants' motion to dismiss. (Doc. 37, Exh. A). The
Court may consider exhibits attached to a motion to dismiss so long as they are referred to in the complaint and are
central to the plaintiff's claims. Bassett v. Nat'/ Collegiate Athletic Ass 'n, 528 F.3d 426, 430 (6th Cir. 2008). The
UBC Constitution satisfies these criteria and may be considered by the Court. Section 6(A) of the Constitution
states: "The United Brotherhood is empowered, upon agreement of the Local Unions and Councils directly affected,
or in the discretion of the General President subject to appeal to the General Executive Board, where the General
President finds that it is in the best interests of the United Brotherhood and its members, locally or at large, to
establish or dissolve any Local Union or Council, to merge or consolidate Local Unions or Councils, to establish or
alter the trade or geographical jurisdiction of any Local Union or Council, to form Councils and to permit, prohibit
or require the affiliation with or disaffiliation from any Council by any Local Union." (Doc. 37, Exh. A).
2

2

Ohio, in which all of the elected officers of the OVRCC were fired, and the IKRCC's officers
were placed in control of the new IKORCC and of delegates appointed from the affected locals
to the new IKORCC. (!d., pp. 6-7). Defendants sent a notice to the membership dated August
10, 2011, following the merger. (!d.; Exh. 1)3 . Section 6(A) ofthe UBC General Constitution
does not specifically state that the reasons for this type of action by the General President are to
be sent to the membership, but settled law required that plaintiff, as a member of Local 1066, be
notified of the underlying reasons for the merger sufficiently in advance of its implementation so
as to allow him to appeal the decision to the UBC General Executive Board. (!d. at 7-9).
On September 11, 2011, at the monthly meeting of Local 1066, it was verbally
announced that Local1066 was being merged with the other millwright locals in the area
covered by the old OVRCC. (!d., § 2, p. 11 ). Plaintiff subsequently learned that defendant
Yeggy, Midwest Vice-President of the UBC, had informed union officers that the locals were to
be merged as ofNovember 1, 2011. (!d., pp. 11-12). Plaintifffiled for an injunction in this court
on September 28, 2011. (!d., p. 12). The merger took place before defendants were served with
notice of the request for the injunction. (!d.). Plaintiff requested a copy of the reports that led to
the merger from McCarron on November 28, 2011, but received no response. (!d.; Exh. 7).
McCarron has acted in a "patently unreasonable" manner by failing to allow for an appeal to the
General Executive Board of his decision to allow the merger before proceeding with the action.

(!d., § 11, pp. 22-25).
Defendant Yeggy, under McCarron's direction, seized the funds ofLocal1066 as part of

3

Plaintiff has attached a number of exhibits to the amended complaint. The Court may consider the attached
exhibits so long as they are referred to in the amended complaint and are central to plaintiff's claims. See Rondigo,
L.L.C. v. Twp. of Richmond, 641 F.3d 673,680-81 (6th Cir. 2011).

3

the merger. (!d.,§ 12, p. 25). The funds included a death benefit fund, which was an insurance
plan that each participating member paid into on a monthly basis with the guarantee of a benefit
being paid to the member's family upon the member's death, and which was backed by the full
general fund. (!d.). When the death benefit fund was low, funds from the general fund were
transferred into it, such that the entire general fund of Local 1066 was a death benefit fund, if
needed. (!d., p. 26).
At the regularly scheduled meeting of the membership ofLocal1066 on October 3, 2011,
the membership reauthorized a number of expenditures, including a Christmas party, the retirees'
club quarterly luncheon, and the purchase of two apprentice rings for longtime instructors. (!d.,
§ 3, p. 13). The membership also authorized the sealed bid sale of a pool table and furniture.
(!d.; Exh. 8). The funds of Local 1066 were seized without regard to the votes of the

membership, following which only the sale of the pool table and furniture were allowed and the
other expenditures were cancelled. (!d., p. 14). Also, after the merger ofLocal1066 into Local
1090, the dues of the members of Local 1066 were increased without a vote by the members or
notification to them and the dues of the retiree members were also increased without a vote. (!d.,
§ 4, p. 15; Exh. 10). Plaintiffused his internal remedies under§ 53(G) of the UBC Constitution4
to challenge the increase, but he did not receive a reply. (!d., Exh. 18).
The merger has resulted in an assessment on plaintiff as a member because he must travel
long distances in order to attend Local meetings, including 8 hour round-trips between Cincinnati

4

Section 53(G) states that, "any member ... having any grievance may appeal to the General President within thirty
(30) days from the date the grievance occurred.... All grievances ... shall be in writing and shall contain a brief
statement of the grounds relied upon. Decisions of the General President on grievances may be appealed to the
General Executive Board, whose decision shall be final. Also, decisions of the General Executive Board in all cases
involving geographical jurisdiction, mergers, consolidations, and formations of Councils shall be final." Section
53(H) provides: "All appeals of decisions of the General President ... must be filed with the General SecretaryTreasurer within thirty (30) days from the date of the receipt of the General President's decision[.] Section 53(J)
provides, "All members ... are required to exhaust the administrative remedies provided in this Section before
commencing proceedings in any court or any agency provided by law."

4

and Cleveland, with only two of 12 meetings per year scheduled to be held in the Cincinnati
area. (!d.,§ 5, p. 15; Exh. 9).
Defendants have levied a fee on the membership for the sending out of three-month
notices without a required vote of the membership. (!d.,§ 7, p. 17; Exh. 11). Further, an
assessment of 30 cents per hour was levied on all members of the new Local 1090 without a vote
by the membership. (!d.,§ 8, p. 17; Exh. 19).
The merger of Local 1066 into Local1090 is in effect a trusteeship. (!d.,§ 6, p. 16). Six
of the ten appointed members of the executive board ofLocal1090 are full-time employees of
the IKORCC. (!d.). They have been placed on the board by order of defendants to control the
affairs of Local 1090 given that it would be unreasonable for any official whose full-time
employment is governed by an at-will contract with defendants to oppose his employer's will
and risk discipline or termination. (!d.).
Although the IKORCC is composed of32,000 members, the officers ofthe IKORCC are
the same officers who were selected by the 12,000 members of the old IKRCC the month before
the merger and who represented only that organization. (!d., § 9, p. 18). McCarron has chosen
not to hold new elections that would allow for the possibility that all members of the new
IKORCC would be truly represented because he does not want to take the chance that the
officers he "hand-picked" before the merger would not be re-elected if all members of the
IKORCC were permitted to vote as required under the applicable law. (!d.).
Defendants committed acts of bad faith in connection with the merger. (Doc. 32, § 10,
pp. 19-20; Exh. 6). Plaintiff contends there is contradictory evidence as to when McCarron made
the decision to implement the merger. Plaintiff further disputes that a copy of McCarron's letter
directing the merger was provided to Local Union 1066, as stated in an affidavit Y eggy filed

5

with this Court. (!d., p. 20; Exhs. 6, 14). P1aintifffurther alleges that defendants acted in bad
faith by making statements at the Local1 066 monthly meeting in October that were meant to
intimidate members and deny them their rights. (!d., p. 21; Exh. 5). Specifically, at the meeting,
Yeggy "cited past instances where out of the normal spending was done and those who signed
checks were held responsible." (!d., Exh. 5, Declaration oflvan D. Madden).
As relief, plaintiff seeks actual damages of$5,000 and punitive damages in the amount of
$9,000,000 to discourage the continued disregard ofhis rights as a union member. (!d., § 14, p.
28).
I. Motion for additional time (Doc. 40).

Plaintiff filed an amended complaint on May 7, 2012. (Doc. 32). He subsequently filed a
motion for extension of time on May 22, 2012, seeking an extension of 21 days after all of the
defendants answered the amended complaint, or after their time to answer had expired, to
respond to their answer. The defendants named in the original complaint filed a motion to
dismiss the amended complaint on May 18, 2012. (Doc. 37). Plaintiff filed a memorandum in
opposition to the motion to dismiss on June 8, 2012. (Doc. 41). The individuals added as new
defendants to the amended complaint filed a motion to dismiss the amended complaint on June
22, 2012. (Doc. 46). Plaintiff filed a memorandum in opposition to that motion to dismiss on
July 3, 2012. (Doc. 50). Accordingly, plaintiffs motion for additional time to respond to
defendants' answer to the amended complaint (Doc. 40) is DENIED as moot.
II. Plaintiff's motion to proceed to trial (Doc. 49), defendants' motion to strike (Doc. 55),
and plaintiff's motion to withdraw (Doc. 57).

Plaintiffhas filed a combined memorandum in opposition to defendants' motion to
dismiss the amended complaint and a motion to proceed to trial. (Doc. 49). Defendants UBC,

6

Yeggy, and McCarron move the Court to strike the memorandum portion of plaintiffs filing on
the ground that the memorandum is actually an impermissible sur-reply to defendants' reply in
support of their motion to dismiss plaintiffs amended complaint, which defendants filed on May
7, 2012 (Doc. 37). (Doc. 55).
Plaintiff filed a response in opposition to the motion to dismiss on June 8, 2012 (Doc. 41)
and defendants filed their reply in support of the motion to dismiss on June 22, 2012 (Doc. 47).
Plaintiff filed his "Motion to Proceed to Trial and Reply to Defendants UBC, McCarron &
Yeggy Second Motion to Dismiss" on July 3, 2012. (Doc. 49). Plaintiff has confirmed in his
response to defendants' motion to strike in part the motion to proceed to trial that document 49 is
intended as a reply to defendants' motion to dismiss. (Doc. 57). He asks that the memorandum
be permitted to remain in the record and that only the portion of the document that refers to a
motion to proceed to trial be withdrawn. However, the Local Rules allow only for the filing of a
motion, an opposing memorandum, and a reply memorandum with no additional memoranda
permitted "except upon leave of court for good cause shown." S.D. Ohio Civ. R. 7.2(a)(2).
Plaintiff did not obtain leave of court to file a sur-reply and he has not shown good cause for
filing the same. Accordingly, defendants' motion to strike plaintiffs reply memorandum in part
(Doc. 55) is GRANTED. Plaintiffs motion to proceed to trial and memorandum (Doc. 49) will
be stricken from the record. Plaintiffs motion to withdraw his motion to proceed to trial (Doc.
57) is DENIED as moot.
III. Plaintiff's motion to amend the complaint (Doc. 58).

Plaintiff filed a motion for leave to file a second amended complaint on July 24, 2012.
(Doc. 58). In support of the motion, plaintiff states only as follows: "Additional actions have
come to light out of the same action of the defendants and must be added most noteably [sic] the

7

U.S. Department of Labor Decision cited in #12 in the amended complaint and the Elections held
in Local #1090 as described in #14 ofthe complaint." (!d., p. 2).
Defendants oppose plaintiffs motion. (Docs. 59, 60). They argue that plaintiffhas filed
a large number of motions in this case; he has filed two previous motions to amend the
complaint; and he should not be permitted to file a second amended complaint at this stage of the
case given there are two fully-briefed motions to dismiss that are pending. Defendants further
argue that although plaintiff is proceeding pro se, he is a relatively sophisticated and experienced
litigator who is required to comply with federal pleading requirements. Defendants contend that
plaintiffhas failed to show how his proposed amended complaint corrects any of the deficiencies
identified in the pending motions to dismiss. Defendants assert that the two supplemental
occurrences plaintiff alludes to in his memorandum in support of his motion to amend, which
defendants identify as (1) a Department of Labor decision that dismissed plaintiffs complaint to
that agency, and (2) a complaint concerning Local 1090 elections that plaintiff filed with the
Department of Labor, do not support the filing of a second amended complaint in the face of the
pending motions to dismiss. (Doc. 59 at 7-8).
In reply, plaintiff contends that the amended complaint addresses facts that were not
known to him when the original complaint was filed. (Doc. 62). He asserts that the amended
complaint addresses the objections raised by the new party defendants in their motion to dismiss.
Plaintiff further contends that defendants only suggest that he has acted with undue delay and
they do not assert that the proposed amended complaint is futile, that he is acting in bad faith, or
that they would suffer unfair prejudice if he were granted leave to amend the complaint.
Although leave to amend should be freely given under Fed. R. Civ. P. 15(a)(2) "when
justice so requires," plaintiffs motion for leave to amend the complaint should be denied under

8

the circumstances of this case. First, this matter had been pending for nearly ten months,
plaintiff had previously been granted leave to amend the complaint, and both parties had filed
motions to dismiss the amended complaint before plaintiff sought leave to file yet another
amended complaint. The motions to dismiss are fully briefed and are ready to be decided by the
Court. For the reasons discussed below, the undersigned recommends that the motions be
granted and that plaintiffs claims set forth in the amended complaint be dismissed for failure to
state a claim upon which can be granted pursuant to Fed. R. Civ. P. 12(b)(6). While plaintiffs
pleadings are entitled to a liberal construction, see Erickson v. Pardus, 551 U.S. 89, 94 (2007),
the proposed second amended complaint does not cure the deficiencies in the amended complaint
that warrant dismissal ofhis claims. Specifically, plaintiffhas not included allegations to show
that he has exhausted his internal union remedies for his claims against the new party defendants
as required under the UBC Constitution and federal law. Furthermore, while plaintiff includes
allegations in the proposed second amended complaint pertaining to the Department of Labor's
disposition of a complaint he filed challenging the merger and the failure of the IKORCC to elect
new officers (Doc. 58, Exh. 22), the decision does not demonstrate that plaintiff should be
permitted to proceed on his claims against any defendant. The Department of Labor dismissed
plaintiffs complaint, finding that the merger did not result in the creation of a new labor
organization and it therefore was not necessary for the IKORCC to hold officer elections at that
time. Thus, the decision does not, as plaintiff alleges, "clearly show[] the intent of McCarron
and the UBC was to keep the IKRCC officers in control of the IKORCC and not to have a
legally elected democratic IKORCC." (Doc. 58, § 12, p. 30). Finally, plaintiffs allegations
concerning the scheduling of a meeting in South Point, Ohio in May 2012, which he presents for
the first time in the proposed second amended complaint (!d.,§ 14, pp. 30-32; Exh. 24) fail to

9

state a plausible claim for relief for the reasons discussed in connection with defendants' motion
to dismiss the amended complaint. Accordingly, the proposed amendment would not cure the
defects in the amended complaint and would be futile. See Coe v. Bell, 161 F.3d 320, 341 (6th
Cir. 1998) (citing Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). Plaintiff should be
denied leave to file a second amended complaint.
IV. Motion to dismiss by defendants UBC, McCarron and Yeggy (Doc. 37)
To survive a Rule 12(b)(6) motion to dismiss, plaintiffs amended complaint "must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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." !d. (citing Twombly, 550 U.S. at 556). Furthermore, the plaintiff must
provide in the claim "more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." !d. (citing Twombly, 550 U.S. at 555).
It is well-settled that a document filed prose is "to be liberally construed," and that a pro
se complaint, "however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers .... " Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). However, the Sixth Circuit has recognized the Supreme Court's "liberal
construction" case law has not had the effect of "abrogat[ing] basic pleading essentials" in pro se
suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Courts are not required to devote time
to a case when the nature of a pro se plaintiffs claim "defies comprehension." Roper v. Ford
Motor Co., No. 1:09cv427, 2010 WL 2670827, at *3 (S.D. Ohio April6, 2010) (citing Jones v.
Ravitz, No. 07-10128, 2007 WL 2004755, at *2 (E.D. Mich. Feb. 22, 2007)).

10

Upon review of the allegations of the amended complaint, it is apparent that plaintiffhas
not stated a claim for violation of his federal statutory rights against any named defendant. The
Court will address each of plaintiffs claims in turn.
a. Sections 1, 2, 11

Plaintiff alleges in§§ 1 and 2 ofthe amended complaint that defendants violated§ 301 of
the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, by failing to give notice ofthe
reasons for the dissolution of the OVRCC and its merger with the IKRCC sufficiently in advance
ofthe merger's effective date to allow him, as a member ofLocal1066, to pursue an appeal to
the General Executive Board. Plaintiff further alleges in § 11 that defendants violated his rights
to free speech and to participate as a member in the union by instituting the merger without
allowing him time to pursue an appeal of the decision to the General Executive Board.
Defendants contend that the claims presented in§§ 1 and 2 of the amended complaint must be
dismissed for failure to state a claim for violation of§ 301 of the LMRA. Defendants contend
that pursuant to § 6(A) the UBC Constitution, the UBC General President clearly has the
authority to direct the dissolution and merger of subordinate bodies. (Doc. 37 at 11, citing
cases). Defendants assert that the UBC Constitution contains no requirement that the union
membership be given advance notice of such a decision by the General President. (Doc. 37 at
11-16). In addition, defendants contend that plaintiffhad the opportunity to appeal the decision
to dissolve Local Union 1066 and merge it with other millwright locals to the UBC General
Executive Board following the merger, but plaintiff failed to so. Defendants contend that the
cases plaintiff relies on in the amended complaint to establish that the UBC Constitution requires
notice before a merger is implemented do not establish that proposition. 5 Defendants contend

5

Plaintiff concedes in the amended complaint that Section 6(A) does not, by its terms, require that the General
President notify the membership in advance of the reasons for a merger, but he alleges case precedent establishes

11

that because they did not violate any provision of the UBC Constitution by failing to give notice
of the dissolution and merger decision prior to implementation of the decision, plaintiffs claims
asserted under§§ 1 and 2 of the amended complaint must fail. Defendants argue that plaintiffs
claim asserted in§ 11 ofthe amended complaint that McCarron acted in a "patently
unreasonable" manner by implementing the merger without allowing time for an appeal must be
dismissed because plaintiff appears to offer this claim only as additional support for the § 301
claims asserted in§§ 1 and 2 of the amended complaint.
Section 301 of the LMRA, 29 U.S.C. § 185(a), provides that suits for violations of
contracts between labor organizations may be brought in the district courts. A union constitution
is a contract between labor organizations under§ 301. United Ass 'n ofJourneymen &
Apprentices of the Plumbing & Pipefitting Indus. v. Loca/334, 452 U.S. 615, 619-20 (1980).

Accordingly, the UCB Constitution is a contract under§ 301, and suit may be brought for a
violation of the Constitution's provisions.
Section 6(A) of the UBC Constitution authorizes the UBC General President, in his
discretion, to dissolve or to merge local unions when the General President "finds that it is in the
best interests of the United Brotherhood and its members, locally or at large.... " (Doc. 37, Exh.
A). Any such decision is subject to an appeal to the General Executive Board. (!d.). The UBC
Constitution includes no requirement that notice or reasons for the merger be given in any
manner or in accordance with a particular timeframe. (!d.).
Plaintiffhas failed to state a claim under§ 301 of the LMRA based on defendants' failure
to give him sufficient notice of the dissolution and merger of Local 1066 so as to allow him to

this is the correct interpretation of the provision. (See Doc. 32, § 1, pp. 7-9, citing Local 567 of the United
Brotherhood of Carpenters and Joiners ofAmerica v. Sidell, 552 F.2d 1250 (7th Cir. 1977); Local Union No. 48 of
the United Brotherhood of Carpenters and Joiners ofAmerica v. United Brotherhood of Carpenters and Joiners of

12

appeal the merger prior to its implementation. Plaintiff acknowledges that defendant McCarron
had the right as UBC General President to invoke § 6(A) ofthe UBC Constitution to effectuate a
merger, so long as he acted in the best interests of the union membership. (Doc. 41 at 3).
Plaintiff has failed to point to any provision of the UBC Constitution that required McCarron as
General President to provide notice of the merger to the membership sufficiently in advance of
its implementation to allow for an appeal by a member to the General Executive Board prior to
completion of the merger. The cases plaintiff relies on in his amended complaint in support of
his§ 301 claim do not establish that the UBC Constitution has been interpreted by the courts to
require notice to the membership before a merger is implemented. See Sidell, 552 F.2d at 1256;
Local Union No. 48, 920 F.2d 1047; Millwright Local #1079, 878 F.2d 960. To the contrary, the

court in Sidell indicated that the UBC General President is not required to give reasons for a
decision he makes pursuant to the discretionary authority vested in him under§ 6(A) of the UBC
Constitution. See Sidell, 552 F.2d at 1256 (noting the "disjunctive phraseology" of Section
6(A)). Finally, the Court notes that although plaintiff indicates it would have been futile for him
to file an appeal once the merger had been completed, he alleges no facts in support of this
allegation.
For these reasons, plaintiffs§ 301 claims asserted in§§ 1 and 2 of the amended
complaint should be dismissed for failure to state a claim for relief. Plaintiffs claim asserted in
§ 11 that McCarron acted in a "patently unreasonable" manner by implementing the merger
without allowing sufficient time for an appeal should likewise be dismissed.

America, 920 F.2d 1047 (1st Cir. 1990); Millwright Local #1079 v. United Brotherhood of Carpenters and Joiners
ofAmerica, 878 F.2d 960 (6th Cir. 1989)).

13

b. Sections 3, 4, 5, 7, 8

Plaintiff alleges various violations ofTitle I ofthe LMRDA, 29 U.S.C. §§ 411(a)(2) and
411(a)(3)(A), in§§ 3, 4, 5, 7 and 8 ofthe amended complaint. Section 411(a)(2), "Freedom of
speech and assembly," provides:
Every member of any labor organization shall have the right to meet and assemble
freely with other members; and to express any views, arguments, or opinions; and
to express at meetings of the labor organization his views, upon candidates in an
election of the labor organization or upon any business properly before the
meeting, subject to the organization's established and reasonable rules pertaining
to the conduct of meetings: Provided, That nothing herein shall be construed to
impair the right of a labor organization to adopt and enforce reasonable rules as to
the responsibility of every member toward the organization as an institution and
to his refraining from conduct that would interfere with its performance of its
legal or contractual obligations.
Section 411(a)(3)(A) states:
Except in the case of a federation of national or international labor organizations,
the rates of dues and initiation fees payable by members of any labor organization
in effect on September 14, 1959 shall not be increased, and no general or special
assessment shall be levied upon such members, except-- (A) in the case of a local
labor organization, (i) by majority vote by secret ballot of the members in good
standing voting at a general or special membership meeting, after reasonable
notice of the intention to vote upon such question, or (ii) by majority vote of the
members in good standing voting in a membership referendum conducted by
secret ballot. ...
Plaintiffhas failed to state a claim for relief under either one of these statutory provisions.
First, plaintiff alleges in § 3 of the amended complaint that defendants violated his rights under §
411(a)(2) by not using the funds of Local1066 for purposes that the members had approved by
their vote at a meeting held on October 3, 2011, including the Local 1066 Christmas party,
apprentice rings for two long-time instructors, and the retirees' club quarterly luncheon. (Doc.
32, § 3, pp. 13-14). Defendants state that Local 1066 ceased to exist as ofNovember 1, 2011,

14

and the UBC disposed of the local's assets in accordance with§ 30(A)6 ofthe UBC Constitution.
(Doc. 37 at 17). Plaintiff has failed to state a plausible claim for violation of his rights under§
411(a)(2) based on defendants' failure to make expenditures on behalf of Local 1066 following
dissolution of the local and the merger. Accordingly, plaintiffs claim under § 411(a)(2) based
on defendants' failure to make expenditures approved by members of Local 1066 should be
dismissed. 7
Plaintiff alleges in§ 4 ofthe amended complaint that defendants violated§§ 411(a)(2)
and (a)(3)(A) by increasing the dues of active and retired union members without either a vote by
members or official notification to them. (!d.,§ 4, p. 15). Plaintiff references an exhibit attached
to the amended complaint in support of this claim (!d., Exh. 9), which is a notice of a dues
increase for members of Local 1090 effective December 1, 2011. Plaintiff alleges he exhausted
his internal union remedies as to this claim. (!d., Exh. 18). Defendants contend that this claim
must be dismissed because these alleged acts occurred after the merger and plaintiff does not
allege any direct involvement by them in the raising of the dues. (Doc. 37 at 17). In response,
plaintiff contends that defendant UBC is responsible for all actions of its appointed officers in
the absence of by-laws approved by the membership of the local union and officers elected in
accordance with the by-laws. (Doc. 41 at 5).
The dues increase that plaintiff challenges as a violation of his rights under the LMRDA
took place following the dissolution of Local 1066 and the merger ordered by defendant

6

Section 30(A) provides that upon dissolution of a local union, "all Property, Books, Charter and Funds held by, or
in the name of, or on behalf of said Local Union, or other subordinate body must be forwarded immediately to the
General Secretary-Treasurer for such use or disposition in the interests of the membership of the United
Brotherhood as the General President in the exercise of his or her discretion may direct or to such Local Union(s) or
Council(s) as the General President in the exercise of his or her discretion may direct."
7
Plaintiff alleges in his opposing memorandum that these same expenditures were voted on and approved by the
membership "in attendance at the meeting held on March 20, 2012," but nonetheless did not occur. (Doc. 41 at 5).
However, plaintiff failed to make this allegation in his amended complaint, which he filed on May 7, 2012, and this

15

McCarron. Plaintiff offers no factual or legal authority in support of his position that defendant
UBC is responsible for any actions of the officers ofLocal1099 taken following the merger.
Because plaintiff's allegations related to the dues increase fail to state a plausible claim for relief
against defendants, the claim asserted under the LMRDA in§ 4 of the amended complaint
should be dismissed.
Plaintiff claims in § 5 of the amended complaint that the merger of Local 1066 with the
other millwright locals violated his rights under§§ 411(a)(2) and 411(a)(3)(A) because the
scheduling of the local's monthly meetings in cities several hours' driving distance from
Cincinnati, Ohio, greatly limits his right to meet freely with other members to express views,
elect officers, and generally participate fully in the operation of his local union. (Doc. 32, § 5,
pp. 15-16). Plaintiff contends that the scheduling of the meetings in other cities has had the
effect of placing an assessment on him. (!d.). In support of this claim, he has submitted the
2012 schedule for Local1090 meetings, which shows the local will hold 12 meetings in six cities
in Ohio, including two in Cleveland and two in Cincinnati. (!d., Exh. 9). Plaintiff alleges he has
exhausted his internal union remedies for this claim. (!d., Exh. 21).
Defendants contend that plaintiff's allegations of harm made in connection with§ 5 of
the amended complaint are speculative. (Doc. 37 at 17). Defendants assert that plaintiffhas not
specifically alleged that he has not been able to vote in any election or attend any meeting.
Defendants assert that similar allegations have been found insufficient to state a claim for relief
under the LMRDA.
Plaintiffhas not stated a plausible claim for relief under§§ 411(a)(2) and 411(a)(3)(A)
based on the scheduling of the Local1090 meetings. Plaintiffhas not alleged that he will be

allegation is not properly raised for the first time in his response to the motion to dismiss. The Court therefore
declines to address this allegation.

16

precluded from participating in the meetings as a result of the rotating locations. Nor has
plaintiff made allegations which, if accepted as true, show that the schedule will hinder his right
to vote in any election. Plaintiffs allegation that some monthly meetings will be held several
hours' driving distance from his home are insufficient, standing alone, to show that plaintiff has
been deprived of any rights guaranteed under§ 411(a)(2) or§ 411(a)(3)(A) as a result of the
merger. See Millwright Local #1079, 878 F.2d at 963-64 (rejecting as speculative and
unsupported local's allegations that attempted reorganization would burden its members' voting
rights simply because its members would have to travel 150 miles to Cleveland, Ohio, to
exercise those rights where the evidence showed the meeting locations were rotated among the
district's offices in some districts and in other districts, mail-in ballots were used to facilitate
voting). Accordingly, plaintiffs claim set forth in§ 5 of the amended complaint should be
dismissed for failure to state a claim for relief.
Plaintiff alleges in §§ 7 and 8 of the amended complaint that defendants violated §
411(a)(3)(A) by levying certain fees and assessments without a vote by the membership,
including a fee for sending out three-month notices (Doc. 32, § 7; Exh. 11) and a 30 cent per
hour market recovery fund assessment. (!d.,§ 8, p. 17; Exh. 19). Defendants contend that
plaintiff does not make any allegations to show that they can be held liable for these alleged
violations, which occurred following the merger. (Doc. 37 at 18). Plaintiff asserts in response
that defendants are responsible for the actions of their appointed officers. (Doc. 41 at 7).
Plaintiff does not cite any factual or legal support to show that defendants can be held
liable for actions taken by the officers of Local 1090 following the dissolution of Local 1066 and
the merger. Accordingly, his claims asserted in§§ 7 and 8 of the amended complaint should be
dismissed for failure to state a plausible claim for relief against defendants.

17

c. Section 6
Plaintiff claims that the merger of Local 1066 into Local 1090 is in effect a trusteeship
which should be governed by Title III of the LMRDA. (Doc. 32, § 6, p. 16). Defendants
contend that plaintiffhas not offered sufficient allegations to support this claim. (Doc. 37 at 1819). Defendants contend that General President McCarron made the appointments pursuant to
his authority under § 1O(M) of the UBC Constitution, which authorizes the General President to
"appoint interim officers and delegates of newly established, consolidated or merged Local
Unions or Councils." (Doc. 37, Exh. A). In response, plaintiff appears to allege that the
IKORCC and Local 1090 stand in a trustee relationship to one another because all of the officers
of the "new" Local 1090 are appointees of defendant McCarron and the majority are full-time
employees of the IKORCC; as such, the officers are also purportedly employees ofthe UBC by
virtue of the merger of the IKRCC and the OVRCC. (Doc. 41 at 8-9). Plaintiff asserts a "de
facto" trusteeship exists under 29 U.S.C. § 462 by virtue ofthe merger of the IKRCC and the
OVRCC.
Title 29 U.S.C. § 462 provides as follows:
Trusteeships shall be established and administered by a labor organization over a
subordinate body only in accordance with the constitution and bylaws of the
organization which has assumed trusteeship over the subordinate body and for the
purpose of correcting corruption or financial malpractice, assuring the
performance of collective bargaining agreements or other duties of a bargaining
representative, restoring democratic procedures, or otherwise carrying out the
legitimate objects of such labor organization.
Title 29 U.S.C. § 402(h) defines a "trusteeship" as "[a]ny receivership, trusteeship, or other
method of supervision or control whereby a labor organization suspends the autonomy otherwise
available to a subordinate body under its constitution or bylaws."

18

According to the allegations of the complaint, defendants did not suspend the autonomy
of Local 1066. Rather, Locall 066 was dissolved and effectively merged with the other locals of
the OVRCC. Thus, the allegations of the complaint demonstrate no trusteeship existed within
the meaning of the LMRDA. See United Broth. of Carpenters & Joiners ofAm., Dresden Local
No. 267 v. United Broth. of Carpenters & Joiners ofAm., S. Cent. Ohio Dist. Council, 992 F.2d

1418, 1425 (6th Cir. 1993) (there was no trusteeship within the meaning of the LMRDA where
the UBC dissolved the local and effectively merged it with the other locals of the Council). Even
assuming there was a trusteeship, plaintiff has not asserted a cause of action under Title III for
violation of his rights in connection with the establishment of a trusteeship. Plaintiffs claim
under Title III should therefore be dismissed for failure to state a claim for relief.

d. Section 9
Plaintiff alleges in § 9 of the amended complaint that defendants are violating Title IV of
the LMRDA by denying him the right to be represented by delegates nominated and elected by
members ofthe "old OVRCC area." (Doc. 32, § 9, p. 18). Plaintiff alleges that defendants have
effectively left him and other members of the "new" IKORCC without elected officers because
McCarron has not held new elections following the merger, instead keeping in place the officers
of the former IKRCC. (!d). Plaintiff indicates that elections must be held pursuant to 29 U.S.C.
§ 481. Plaintiffhas attached two exhibits to the amended complaint in support ofthis claim.
(Doc. 32, Exhs. 12, 13). The first is a grievance dated November 14, 2011, that plaintiff filed
with defendant McCarron under§ 53(G) of the UBC Constitution, asserting that elections should
be held for delegates to ratify the new by-laws of the "new Council." (!d., Exh. 12). The second
is McCarron's response informing plaintiff that the IKORCC rejected plaintiffs contention that
elections should be held and stating that the IKORCC was not a "new" council but only reflected

19

a name change of the IKRCC following the merger, such that elections for officers and delegates
to the regional council was not required. (!d., Exh. 13).
Defendants move to dismiss plaintiffs claim because they contend that even if the
IKORCC is a new council, there is no private right of action to enforce Title IV in these
circumstances. (Doc. 37 at 20). Plaintiff does not address this specific claim in his opposing
memorandum.
Section 481(b) provides that a local labor organization shall elect its officers at least once
every three years. 29 U.S.C. § 482(a)(l) provides that a member of a labor organization who has
exhausted his internal union remedies may file a complaint with the Secretary of Labor. The
Secretary is empowered to bring a civil action in the district court. 29 U.S.C. § 482(b).
However, there is no provision under § 482 for a private individual to bring a cause of action
under the statute. Accordingly, plaintiff is not authorized to bring an action under this provision.
The claim brought under 29 U.S.C. § 482 should be dismissed.
e. Section 10

Plaintiff alleges in § 10 of the amended complaint that defendants acted in bad faith by
misrepresenting when the decision to dissolve the local unions and implement the merger was
made; by making misrepresentations to the Court as to whether a letter advising Local 1090 of
the merger had been sent; and by intimidating members of Local 1066 by advising them that
those responsible for out-of-the-ordinary expenditures would be held responsible for the
spending. (Doc. 32, § 10, pp. 19-22). Defendants contend that plaintiff does not allege how
such instances of bad faith impact the causes of action asserted in the complaint and that
plaintiffs allegations, even accepted as true, do not show bad faith by defendants in
implementing the merger. (Doc. 37 at 7-8).

20

In response, plaintiff contends that a union's action, even if arguably authorized under its

governing documents and not patently unreasonable, may still be blocked by the court if
undertaken in bad faith. (Doc. 41 at 11, citing Local 48, United Brotherhood of Carpenters &
Joiners ofAm. v. United Brotherhood of Carpenters & Joiners ofAm., 920 F.2d 1047 (1st Cir.
1990) (and cases cited therein). Plaintiff contends that defendants committed acts of bad faith
that continued after the merger. Although plaintiff's arguments are not entirely clear, plaintiff
appears to allege that defendants violated§ 25(B) 8 of the UBC Constitution by permitting
elections to take place for new officers of Local 1090 when bylaws were not in place. Plaintiff
also appears to repeat his arguments made in support ofhis claim under 29 U.S.C. § 481 in
claiming that defendant McCarron acted in bad faith by ordering the merger and appointing
interim delegates from only the IKRCC to the IKORCC. Plaintiff alleges that McCarron acted
with the improper intent of (1) depriving plaintiff as a member of the majority in the IKORCC of
his right under the LMRDA to elect the officers of the IKORCC, and (2) maintaining the officers
of the IKRCC instead of allowing the majority to democratically elect the officers of the
IKORCC. Plaintiff alleges that the proper procedure for a merger and the correct interpretation
of the union constitution is set forth in United Broth. of Carpenters & Joiners ofAm., Dresden
Local No. 267, 992 F.2d 1418, where: (1) formal notice of the reorganization was sent to all the
local unions and district councils; (2) the letter providing the notice simultaneously dissolved the
old council and created the new council; (3) the newly-created council was governed by
temporary delegates until a future date; and (4) officers and temporary delegates to the new
council were sworn in and temporary by-laws were approved pending the election ofpermanent
delegates by the local unions. (Doc. 41 at 12-13). Moreover, plaintiff cites additional evidence

8

Section 25(B) of the UBC Constitution states that "Local Unions shall be governed by applicable uniform bylaws
and have the power to make laws and trade rules which in no way conflict with the Constitution and Laws of the

21

ofbad faith that he did not reference in the amended complaint, specifically, an "LM-2 form"
filed on behalf ofthe OVRCC in September 2011 by David Tharp and Michael Lauer. (!d. at 15;
Exh. 5). Plaintiff alleges that the form contains information that is "less than accurate or
complete." (!d.).
"There is a well-established, soundly based policy of avoiding unnecessary judicial
intrusion into the affairs of labor unions." United Broth. of Carpenters & Joiners ofAm.,
Dresden Local No. 267,992 F.2d at 1425 (citing Local No. 48, United Brotherhood of
Carpenters v. United Brotherhood ofCarpenters, 920 F.2d at 1051). Nonetheless, plaintiff

correctly notes that federal courts have held that "a union's action, though arguably authorized
by, and not patently unreasonable under, its governing documents, may still be blocked by the
courts if undertaken in bad faith" and "when clearly necessary to protect members' federally
assured rights." Local No. 48, United Broth. of Carpenters & Joiners ofAm., 920 F.2d at 1053
(collecting cases).
Initially, the Court will not consider the "LM-2" form plaintiff has attached to his
opposing memorandum because plaintiff made no allegations pertaining to this document in the
amended complaint. Plaintiff's remaining allegations, accepted as true, fail to demonstrate that it
is necessary to block any action by these defendants or to otherwise intervene in internal union
affairs in order to protect plaintiff's federally guaranteed rights. Accordingly, plaintiff has failed
to state a plausible claim for relief in § 10 of the amended complaint based on actions
purportedly taken by defendants in bad faith.

United Brotherhood.... "

22

f. Section 12
Plaintiff claims in § 12 of the amended complaint that defendants violated their fiduciary
obligations under 29 U.S.C. § 501 and the criminal provision ofthat statute,§ 501(c), by
canceling a death benefit fund that plaintiff and other members of the local paid into with the
guarantee of a benefit being paid to their families upon their deaths. (Doc. 32, § 12, pp. 25-27).
Plaintiff contends that defendants illegally diverted death benefits funds and used them for an
unintended purpose when they transferred the funds under§ 30 of the UBC Constitution. 9 (Doc.
41 at 9-10).
Defendants move to dismiss this claim on the ground that plaintiff does not have standing
to bring a criminal action under 29 U.S.C. § 501(c). (Doc. 37 at 20). Moreover, defendants
contend that even if there were a private cause of action under § 501, an action cannot be brought
against defendants Y eggy and McCarron under the terms of the statute because plaintiff does not
allege that either individual is an officer or individual employed directly or indirectly by Local
1066. (!d.). Finally, defendants argue that the funds in issue were lawfully transferred to Local
1090 pursuant to the provisions of§ 30(A) of the UBC Constitution. (!d., citing 325 Bleecker,

Inc. v. Local Union No. 747, 500 F. Supp.2d 110, 122 (N.D. N.Y. 2007) (upholding UBC
General President's exercise of his authority under§ 30(A) to transfer funds of dissolved local to
merged local); UFCW Local911 v. United Food and Commercial Workers Union, 301 F.3d
468, 475 (6th Cir. 2002) ("§ 501 violations generally involve 'unreasonable and arbitrary
actions' such as 'self-dealing or the misuse of union funds."')).

9

Plaintiff asserts that the Court has already granted him leave to bring a claim against defendants under § 50 I.
(Doc. 41 at 9). Although the Court granted plaintiffleave to amend the complaint to add a claim under§ 501, the
Court did not address whether plaintiff had stated a claim to relief under that statutory provision. (See Doc. 30 at 56).

23

Title 29 U.S.C. §501(a) states as follows:
The officers, agents, shop stewards, and other representatives of a labor
organization occupy positions of trust in relation to such organization and its
members as a group. It is, therefore, the duty of each such person, taking into
account the special problems and functions of a labor organization, to hold its
money and property solely for the benefit of the organization and its members and
to manage, invest, and expend the same in accordance with its constitution and
bylaws and any resolutions of the governing bodies adopted thereunder, to refrain
from dealing with such organization as an adverse party or in behalf of an adverse
party in any matter connected with his duties and from holding or acquiring any
pecuniary or personal interest which conflicts with the interests of such
organization, and to account to the organization for any profit received by him in
whatever capacity in connection with transactions conducted by him or under his
direction on behalf of the organization....
Subsection (c) states:
Any person who embezzles, steals, or unlawfully and willfully abstracts or
converts to his own use, or the use of another, any of the moneys, funds,
securities, property, or other assets of a labor organization of which he is an
officer, or by which he is employed, directly or indirectly, shall be fined not more
than $10,000 or imprisoned for not more than five years, or both
Plaintiffhas failed to state a claim for a violation of§ 501(c). First, plaintiffhas not cited
any authority to show there is a private right of action under that provision. Second, plaintiff has
not alleged any facts to support a claim that defendants embezzled, stole, or unlawfully
converted the death benefit funds to their own use.
Second, plaintiffhas failed to state a plausible claim for a violation of§ 501(a). Plaintiff
has cited no facts or legal authority to support a claim that defendants violated the trust of the
members of Local 1066 in connection with their handling of the death benefit funds. Plaintiff's
claim brought under § 501 should be dismissed.

24

V. New party defendants' motion to dismiss (Doc. 46)
This matter is also before the Court on a motion to dismiss the complaint filed by the
parties named for the first time in the amended complaint. These defendants are Donald Crane,
Todd Ruswinkle, Todd Weinbrecht, Keith Kistler, Bob Elliott, Jason Clark, E.J. Scheiderer, Jack
Lamb, Buck Rector, Jerry Thornsberry, Millwrights and Pile Drivers Local Union 1090 (Local
1090), David Tharp, and the Indiana/Kentucky/Ohio Regional Council of Carpenters (IKORCC)
(collectively, "new party defendants"). The new party defendants move to dismiss the complaint
against them pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief
can be granted. Defendants Crane, Ruswinkle, Weinbrecht, Kistler, Elliott, Clark, Scheiderer,
Lamb, Rector, Thornsberry, Tharp and the IKORCC argue that the amended complaint must be
dismissed as to them because it includes no allegations that they violated federal law and seeks
no relief from them. (!d. at 7-9). Defendant Local1099 contends that plaintiffhas failed to
exhaust his internal union remedies as to any claim against it as required under§ 53(1) 10 of the
UCB Constitution and federal law. (!d. at 9-1 0).
In response, plaintiff does not dispute that he is required to exhaust his internal union
remedies. (Doc. 52 at 2). However, he contends that he filed grievances with General President
McCarron pertaining to his claims at least four months before he filed the amended complaint,
and the grievances have either gone unanswered or were answered outside the prescribed waiting
period. (Doc. 52 at 2).
In addition, plaintiff acknowledges that the "claims in the amended complaint are
directed almost entirely at the UBC defendants with the exceptions of#4, #5, #7 [and] #8 ofthe
amended complaint." (!d. at 3). In an effort to clarify the extent to which those particular

10

Section 53(J) requires a member to exhaust all administrative remedies provided in Section 54 of the UBC
Constitution before commencing proceedings in any court. (Doc. 37, Exh. A).

25

allegations are directed at the new party defendants, plaintiff asserts that § 4 of the amended
complaint clearly identifies the new party defendants and specifically charges them with a
violation of29 U.S.C. § 411(a)(3)(A) by referencing Exhibit 18 to the amended complaint. (Id.).
Exhibit 18 is a grievance filed with defendant McCarron in which plaintiff states: "My
grievance is that you have allowed unelected officers of the new merged Local 1090 to raise the
monthly dues of the members." The grievance is not addressed to any other individuals or
entities. Plaintiff asserts that the new party defendants are the appointed officers cited in Exhibit
21, which is referenced in § 5 of the amended complaint, and the violations of federal law
allegedly committed by these defendants are those described in§ 5. (Id. at 4). Exhibit 21 is a
grievance addressed only to defendant McCarron in which plaintiff states: "My grievance is that
you have failed to protect the vested rights of the members under Sec.6A. ... " The only
reference to appointed officers in the grievance is a statement by plaintiff that a meeting could be
cancelled if attendance at any location did not satisfy the appointed officer's standards. (Id.).
Plaintiff asserts that§ 8 ofthe amended complaint cites Exhibit 19, which states '"you have
allowed unelected officers of the new IKORCC' that would be new party defendants David
Tharp and the IKORCC." (Id.). Exhibit 19 is a grievance addressed only to defendant
McCarron. Finally,§ 7 of the amended complaint concerns a notice sent to plaintiffby
defendant Kistler in his capacity as Financial Secretary advising plaintiff that a $5.00 fee would
be added to his record if a three-month notice had to be sent to him for delinquent dues. (Doc.
32, Exh. 11 ). Plaintiff contends that the new party defendants are responsible for the alleged
violations identified in these portions of the amended complaint and that these defendants are
clearly identified in the amended complaint.

26

Liberally construed, the allegations of the amended complaint fail to state a claim for
relief against the new party defendants. First, it does not appear that plaintiff filed any
grievances pertaining to the new party defendants. Instead, the only grievances cited in
connection with§§ 4, 5, 7 and 8 of the amended complaint pertain to actions taken by defendant
McCarron in his capacity as General President. Generally, a union member must exhaust his
internal union remedies before filing suit in federal court. Holmes v. Donovan, 984 F.2d 732,
738 (6th Cir. 1993). See also Clayton v. International Union, UA W, 451 U.S. 679, 688 (1981)
(exhaustion policy is based on deferring judicial consideration of disputes arising over internal
union matters such as those involving the interpretation and application of a union constitution).
Because it does not appear that plaintiff exhausted his internal union remedies with respect to his
claims against any of the new party defendants, he cannot pursue his claims against these
defendants in federal court.
Furthermore, even ifplaintiffhad exhausted his internal union remedies against the new
party defendants, plaintiffhas not pled facts that would suffice to give any of these defendants
notice of the claims against them. Simply citing to exhibits that mention one or more of the
defendants indirectly or by name is not sufficient to put them on notice of the statutory violations
charged against them or the alleged conduct that forms the basis for plaintiffs claims. Plaintiff
does not make allegations against the new party defendants in the amended complaint such as
would allow the court to draw the reasonable inference that any of these defendants is liable for
the statutory violations asserted in the amended complaint. See Twombly, 550 U.S. at 556. For
these reasons, the complaint against the new party defendants should be dismissed.

27

IT IS THEREFORE ORDERED THAT:

1. Plaintiff's motion for additional time (Doc. 40) is DENIED as moot.
2. Defendants' motion to strike plaintiff's reply memorandum in part (Doc. 55) is GRANTED
and plaintiff's motion to proceed to trial (Doc. 49) is STRICKEN from the record.
3. Plaintiff's motion to withdraw his motion to proceed to trial (Doc. 57) is DENIED as moot.
IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff's motion to amend the complaint (Doc. 58) be DENIED.
2. Defendants UBC, McCarron and Yeggy's motion to dismiss the amended complaint (Doc.
37) be GRANTED.
3. The new party defendants' motion to dismiss the amended complaint (46) be GRANTED.
4. Plaintiff's motions to proceed to trial (Docs. 42, 51) be DENIED as moot.
5. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an appeal of
any Order adopting this Report and Recommendation would not be taken in good faith and
therefore deny plaintiffleave to appeal in forma pauperis. Plaintiff remains free to apply to
proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F .3d 800,
803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277
(6th Cir. 1997).

Date:

~$?/

~;!~

Karen L. Litkovitz
United States Magistrate Judge

28

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1: 11-cv-677

ALFRED A. CLOKE, III,
Plaintiff

Black, J.
Litkovitz, M.J.

vs
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, et al.,
Defendants

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

29

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