Polovino et al v Brotherhood of Electrical Workers International et al
Filing
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OPINION AND ORDER by Judge James H Payne ; granting 10 Motion to Dismiss (pll, Dpty Clk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
KEVIN POLOVINO et al.,
Plaintiffs,
v.
Action No. 15CV-023-JHP PJC
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFLCIO, et al.,
Defendants.
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OPINION AND ORDER
This matter is before the Court on the motion of defendant Edwin D. Hill
(“Hill”), for dismissal pursuant to Rules 12(b)(2), (5) and (6) of the Federal Rules of
Civil Procedure. (Dkt No. 10) For the reasons set forth below, the motion is granted
and the complaint is dismissed with prejudice because: (1) it fails to state a claim
due to its failure to comply with the basic requirements of Fed. R. Civ. P. 8; (2) it
fails to establish that this Court has personal jurisdiction over Hill; and (3) the
plaintiffs failed to serve Hill within the time limits of Fed. R. Civ. P. 4(m).
DISCUSSION
The plaintiffs filed their complaint against defendants International
Brotherhood of Electrical Workers, AFL-CIO (“IBEW”), and Hill on January 14,
2015. The IBEW was served on May 13, 2015, and Hill was served on May 16,
2015.1
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Defendant IBEW filed a separate Motion to Dismiss.
Initially, the Court notes that excluding the caption page, the complaint is
only two and a half pages long and does not include a section setting forth either
counts or causes of action.
It is comprised of four sections: the Introductory
Statement, Jurisdiction and Venue, Parties, and Class Action.
The complaint does not list Hill as a party to the case in the Parties section
(Compl. ¶¶ 2.1-2.2.) Instead, Hill is listed in the caption, and is briefly referenced in
the Introductory Statement section. (Id. at 2.)
The Introductory Statement provides a cursory and disjointed narrative of
the alleged wrongful conduct. In generalized terms, Plaintiffs allege that the IBEW
“directed” Local Union No. 584 “to engage in collusion with unionized employers”
that are involved in the construction of “a large commercial facility for Google.”
(Complaint (“Compl.”) at 2.)2 The complaint, however, fails to identify the name
and location of the facility, the nature of the alleged collusion, and the dates on
which said collusion occurred. The complaint further states that because Local
Union No. 584 refused to engage in collusion:
[T]he International office of the IBEW, in the person of Edward [sic]
Hill, traveled to Tulsa and summarily discharged all of Local 584’s
administrative staff. Hill and the IBEW’s conduct of engaging in
practices that the IBEW knew violated federal labor laws [sic]. Such
practices include:
1. The IO [IBEW International Office] decision to remove all
employees of Local 584 in the process of terminating electricians
such as the plaintiffs without notice, cause, or reason;
This order will cite to the page numbers of the complaint where Plaintiffs
have failed to provide numbered paragraphs.
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2. The IO’s authorization of [unionized employers] to create and
implement a Black List based on self-serving premises that
destroyed Plaintiffs’ marketability, de-stabilized their finances
and substantially harmed their careers; and
3. Created and publicized, nation-wide, the Black List which harmed
Plaintiffs’ ability and/or opportunity for any employment in any
market in the United States and elsewhere in the world.
(Compl. at 2-3.)
The Introductory Statement concludes by stating that the “IBEW’s conduct
violates federal and state labor laws, including Section 101(a)(1) of the LaborManagement Relations Act, the Labor Management Relations Act, 29 § 141 et seq.,
as well as purposely avoided its duty of fair representation for Plaintiffs.” (Compl.
at 3.) The complaint does not identify which state labor laws the defendants
allegedly violated. Moreover, the only federal statute cited by Plaintiffs in this
section – “Section 101(a)(1) . . . 29 [U.S.C.] § 141 et seq.” – does not exist. Plaintiffs’
citation to 29 U.S.C. § 141 et seq., presumably is to the Labor-Management
Relations Act of 1947. That Act, however, does not contain a “Section 101(a)(1).”
And nothing more is alleged on the “duty of representation for Plaintiffs” other than
the single, passing reference quoted above. (Compl. at 3.)
The other sections of the complaint are even less specific when trying to
discern what legal claims the plaintiffs assert. For example, paragraph 1.1 of the
Jurisdiction and Venue section states simply – without any elaboration – that the
Court has jurisdiction pursuant to “[1] 28 U.S.C. § 1343(3) and (4), [2] 28 U.S. [sic] §
1341 and [3] 28 U.S.C. § 1331, [4] 42 U.S.C. § 1981 et seq., and [5] 29 U.S.C. 626
(b).”
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Presumably, with respect to their first alleged basis for jurisdiction,
Plaintiffs intended to cite 28 U.S.C. § 1343(a)(3) and (4). Those statutory provisions
confer jurisdiction upon federal district courts over cases concerning the deprivation
of civil rights under color of state law, including the right to vote. The few facts
Plaintiffs allege in the Introductory Statement, however, say nothing of civil rights
deprivations, nor do Plaintiffs allege that the defendants were acting under “color of
state law.” The second statute cited, 28 U.S.C. § 1341, prohibits district courts from
enjoining the “assessment, levy or collection of any tax under State law where a
plain, speedy and efficient remedy may be had in the courts of such State.” The
citation to this provision is unclear as well.
The third jurisdictional statute cited, 28 U.S.C. § 1331, confers upon federal
district courts jurisdiction over “all civil actions arising under the Constitution,
laws, or treaties of the United States.” As stated above, however, Plaintiffs have
failed to identify which federal laws they believe the defendants have violated. The
fourth statute invoked, 42 U.S.C. § 1981, confers upon federal district courts
jurisdiction over cases concerning certain forms of racial discrimination by
employers. The complaint has made no allegations of racial discrimination. The
fifth provision cited, 29 U.S.C. § 626(b), is the remedial provision of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. The complaint
contains no allegations of age discrimination.
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Paragraph 1.2 of the Jurisdiction and Venue section simply states that,
pursuant to 28 U.S.C. § 1367, the “Court has supplemental jurisdiction over the
state law claims.” The complaint, however, does not identify any state law claims.
Paragraph 3.1 of the Class Action section requests class certification for
electricians whose names allegedly appear on black lists “managed by unionized
contractors” and “endorsed and performed by the IBEW and Edwin Hill.” (Compl. ¶
3.1.)
Subsection a. provides that class certification is warranted because the
questions of law and fact common to the class are that “the IBEW violated the
LARA, the LMRDA, did not fairly represent plaintiffs, or observe Oklahoma labor
and employment laws.” (Compl. ¶ 3.1 a.) The Plaintiffs do not explain what “LARA”
is and, as with the Introductory Statement, Plaintiffs once again fail to specify
which sections of the LMRDA and state labor and employment laws the IBEW and
Hill have allegedly violated.
Finally, subsection d. of the class action section states that “Plaintiff’s [sic]
claims stand on the evaluation that Defendants have violated ________.” (Compl. ¶
3.1 d.) This incomplete sentence captures the complaint’s fatal flaw – its complete
failure to identify what laws Plaintiffs believe the IBEW and Hill have violated.
Hill was served with the complaint at his home in the Commonwealth of
Virginia on May 16, 2015.
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I.
THE COMPLAINT FAILS TO PROVIDE FAIR NOTICE OF
PLAINTIFFS’ CLAIMS
This Opinion and Order adopts the findings and conclusions set forth in the
Opinion and Order granting defendant IBEW’s Motion to Dismiss based on the
complaint’s failure to provide fair notice of Plaintiffs’ claims. (Dkt. No. 27, at 5-10).
Nowhere in the complaint do the plaintiffs allege what, if any, laws Hill allegedly
violated, nor do they allege when Hill engaged in the conduct vaguely set forth in
the complaint. Accordingly, the complaint is dismissed against Hill under Rule
12(b)(6) for failure to state a claim upon which relief can be granted.
II.
THIS COURT LACKS PERSONAL JURISDICTION OVER HILL
The complaint against Hill is also dismissed under Rule 12(b)(2) because this
Court lacks personal jurisdiction over Hill.
A federal district court can assert
personal jurisdiction over a defendant only if that defendant is amenable to service
of process. Federal Rule of Civil Procedure 4(k)(1)(A) provides that service of a
summons establishes the court’s jurisdiction over any person “who could be
subjected to the jurisdiction of a court of general jurisdiction in the state in which
the district court is located.” Fed. R. Civ. P. 4(k)(1)(A). Accordingly, this Court can
exercise personal jurisdiction over Hill only if Hill could be subjected to the
jurisdiction of an Oklahoma state court.
The plaintiffs bear the burden of
establishing that this Court has personal jurisdiction over Hill. OMI Holdings, Inc.
v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998); Kendall v. TurnKey Specialists, Inc., 911 F. Supp. 2d 1185, 1194 (N.D. Okla. 2012).
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For this Court to exercise personal jurisdiction over Hill, a non-resident
defendant, the plaintiffs must prove facts to satisfy the Oklahoma long-arm statute
and the Due Process Clause of the United States Constitution. 12 Okla. Stat. §
2004(F); Conoco, Inc. v. Agrico Chem. Co., 115 P.2d 829, 834 (2004).
“Because
Oklahoma’s long-arm statute permits the exercise of jurisdiction that is consistent
with the United States Constitution, the personal jurisdiction inquiry under
Oklahoma law collapses into the single due process inquiry.” Intercon, Inc. v. Bell
Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000).
As the Supreme Court has frequently stated, “a state court may exercise
personal jurisdiction over a nonresident defendant only so long as there exist
‘minimum contacts’ between the defendant and the forum State.”
World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). Accord Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). “[T]he defendant’s conduct and connection
with the forum State [must be] such that he should reasonably anticipate being
haled into court there.” World-Wide Volkswagen, 444 U.S. at 297.
Personal jurisdiction may be either general or specific. General jurisdiction
over a nonresident defendant exists only if the defendant maintains “continuous
and systematic” contacts with the forum state.
Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984). Specific jurisdiction exists only in
a suit “arising out of or related to the defendant’s contacts with the forum….” Id. at
414 n.8.
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Specific jurisdiction, however, cannot be based on forum contacts that are
“random, fortuitous or attenuated….” Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472, 475-76 (1985). Rather, “it is essential in each case that there be some act
by which the defendant purposefully avails [him]self of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its
laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958).
According to Hill’s affidavit, which is not contradicted, his contacts with the
State of Oklahoma have been extremely limited. He was in Oklahoma in August of
2014 for a few days to meet with officials of IBEW Local No. 584 in Tulsa,
Oklahoma, and was in the state in 2009 for an IBEW meeting. Other than those
two occasions, Hill has not been in Oklahoma during the last twenty years. (Hill
Aff. ¶¶ 7-9.) He does not own property in Oklahoma, nor does he conduct any
business for pecuniary gain in the state. (Id. ¶¶ 5-6.) Finally, he was not served
with the summons in Oklahoma, but was instead served at his place of residence in
the Commonwealth of Virginia. (Id. ¶4.)
Hill’s limited contacts with Oklahoma do not constitute the “continuous and
systematic” contacts required to establish general jurisdiction.
e.g., Shrader v.
Biddinger, 633 F.3d 1235, 1243 (10th Cir. 2011) (to establish general jurisdiction,
contacts must approximate physical presence within the borders). Presence in the
state twice in the past twenty years, and for only a handful of days, is neither
continuous nor systematic.
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To establish specific jurisdiction, plaintiffs must show that Hill had contacts
with Oklahoma such that he purposefully directed his activities at residents of the
forum and that Plaintiffs’ claims arise out of or result from action that Hill took to
create a substantial connection with Oklahoma. OMI Holdings, 149 F.3d at 1091;
Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1160 (10th Cir. 2010).
Plaintiffs fail to meet that burden.
In their response brief, Plaintiffs appear to concede that they cannot carry
the burden of establishing that this Court has personal jurisdiction over Hill.
Instead, they admit that “they wish to have more information.” (Pls. Response at 3)
Accordingly, plaintiffs fail to establish that the Court has personal jurisdiction over
Hill.
Moreover, even if Plaintiffs could establish their claims arise out of Hill’s
purposeful activities in the state, they must also demonstrate that the exercise of
personal jurisdiction over Hill would not offend “traditional notions of fair play and
substantial justice.” Pro Axess, Inc. v. Orlux Distrib., Inc., 428 F.3d 1270, 1276-77
(10th Cir. 2005). Determining whether jurisdiction over Hill would be consistent
with fair play and substantial justice is assessed by weighing five factors:
(1) the burden on the defendant, (2) the forum state’s interest in
resolving the dispute, (3) the plaintiff’s interest in receiving convenient
and effective relief, (4) the interstate judicial system’s interest in
obtaining the most efficient resolution of controversies, and (5) the
shared interest of the several states in furthering fundamental
substantive social problems.
TH Agric. & Nutrition, LLC v. ACE European Group Ltd., 488 F.3d 1282, 1292
(10th Cir. 2007). These factors are weighed against the strength of the defendant’s
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minimum contacts such that “the weaker the plaintiff’s showing on [minimum
contacts], the less a defendant need show in terms of unreasonableness to defeat
jurisdiction.” Id. (brackets in original) (quoting OMI Holdings, 149 F.3d at 1092).
As set forth above, Hill’s contacts with the State of Oklahoma are very weak. Thus,
to defeat jurisdiction, Hill need show little with respect to the unreasonableness of
exercising personal jurisdiction over him.
With respect to the other factors, although Hill concedes that Oklahoma may
have an interest in resolving the dispute, without knowing what the plaintiffs are
claiming Hill did, when he did it, and what laws he allegedly violated, it is
impossible to address the other factors applicable to determining whether fair play
and substantial justice counsel against finding personal jurisdiction. Nevertheless,
given the extraordinarily limited contacts Hill has had with the State, the burden
placed on him if jurisdiction is exercised, fair play and substantial justice require
the dismissal of Hill.
Finally, as set forth in his affidavit, all of Hill’s contacts with Oklahoma have
been within the scope of his employment as the chief executive officer of the IBEW.
Although it is unclear whether the corporate or “fiduciary” shield doctrine applies in
the State of Oklahoma, assuming it does, Hill’s contacts with Oklahoma cannot
form the basis for exercising personal jurisdiction over him.
“Under the fiduciary shield doctrine, exercise of personal jurisdiction over an
individual may not be based solely on acts the individual performed in a purely
representative capacity.” Kendell v. Turn-Key Specialists, Inc., 911 F. Supp. 2d
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1185, 1195 (N.D. Okla. 2012). Accordingly, “where the acts of individual principals
of a corporation in the jurisdiction were carried out solely in the individuals’
corporate or representative capacity, the corporate structure will ordinarily insulate
the individuals from the court’s jurisdiction.” Id. (quoting Ten Mile Indus. Park v.
W. Plains Serv. Corp., 810 F.2d 1518, 1527 (10th Cir. 1987)). This principle is based
on the view that it would be “unfair to force an individual to defend a suit brought
against him personally in a forum with which his only relevant contacts are acts
performed not for his own benefit but for the benefit of his employer.” Kendall, 911
F. Supp.2d at 1195. (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899,
902 (2d Cir. 1981)).
The fiduciary shield doctrine has been applied to dismiss union officials
where their sole contacts with the forum state were undertaken in their
representative capacity. The Court recognizes that the State of Oklahoma has not
yet adopted – nor has it rejected – the fiduciary shield doctrine.
Newsome v.
Gallacher, 722 F.3d 1257, 1278-79 (10th Cir. 2013). Nevertheless, in this case,
where the chief executive officer of an organization has extremely limited contacts
with the State, the doctrine may be applied to protect against such an individual
being brought before Oklahoma courts based on contacts made in his capacity as an
officer.
III.
PLAINTIFFS FAILED TO SERVE HILL WITHIN THE TIME PERIOD
ALLOTED BY THE FEDERAL RULES
Not only does the complaint fail to state a claim against Hill, and this Court’s
lack of personal jurisdiction over him, but the summons and complaint were served
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too late, and must be dismissed under Rule 12(b)(5) for insufficient service of
process. Accordingly, although the complaint is dismissed with prejudice for failure
to state a claim and for lack of personal jurisdiction, it is also dismissed due to the
plaintiffs’ failure to serve it timely.
Rule 4(m) of the Federal Rules of Civil Procedure provides that a plaintiff has
120 days from the filing of the complaint to effectuate service. Here, the complaint
was filed on January 14, 2015, and Hill was not served until May 16, 2015 – 122
days later.
“If a defendant is not served within 120 days after the complaint is filed, the
court – on motion or on its own after notice to the plaintiff – must dismiss the action
without prejudice against the defendant or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m). When a plaintiff fails to file within the time
frame set forth in Rule 4(m), the court first determines whether the plaintiff has
demonstrated good cause for its failure. Espinoza v. United States, 52 F.3d 838, 841
(10th Cir. 1995).
As a general matter, “inadvertence or negligence alone do not constitute ‘good
cause’ for failure of timely service.” In re Kirkland, 86 F.3d 172, 176 (10th Cir.
1996). Moreover, an attorney’s failure to monitor a hired process service to ensure
that the summons is timely filed, does not constitute good cause. Cox v. Sandia
Corp., 941 F.2d 1124, 1125-26 (10th Cir. 1991); Petrucelli v. Bohringer and
Ratzinger, 46 F. 3d 1298, 1307 (3d Cir. 1995) (“[R]eliance upon a third party or on a
process server is an insufficient basis to constitute good cause for failure to timely
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serve, and is also an insufficient basis for granting an extension of time to effect
service.”) Here, the plaintiffs failed to demonstrate good cause for their failure to
serve Hill in a timely fashion.
Accordingly, Hill’s Motion to Dismiss (Dkt. No. 10) is granted.
IT IS SO ORDERED this 7th day of August, 2015.
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