Hall v. The Kroger Co.

Filing 30

REPORT AND RECOMMENDATION: Magistrate Judge Griffin RECOMMENDS: (1) the Motion to Dismiss filed by The Kroger Co. 5 be DENIED as MOOT; (2) the plaintiff's Motion for Summary Judgment 13 be DENIED; (3) the Motion to Dismiss the plaintiff' ;s Amended Complaint filed by The Kroger Co. 24 and the motion to Dismiss filed by the United Food and Commercial Workers, Local 1995 26 be GRANTED; and (4) this action be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted. Signed by Magistrate Judge Juliet E. Griffin on 2/28/12. (xc:Pro se party by regular and certified mail.)(dt)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

LEROY CALVIN HALL
v.
THE KROGER CO.

TO:

)
)
)
)
)

NO. 3:11-0577

Honorable Kevin H. Sharp, District Judge

REPORT AND RECOMMENDATION
By Order entered June 21, 2011 (Docket Entry No. 3) this action was referred to the
Magistrate Judge, pursuant to Rule 72(a) and (b) of the Federal Rules of Civil Procedure and
28 U.S.C. §§ 636(b)(1)(A) and (B), for consideration of all pretrial matters and for proposed findings
of fact and recommendations for disposition of any dispositive motions.
Presently pending before the Court are: (1) the Motion to Dismiss filed by The Kroger Co.
(Docket Entry No. 5); (2) the plaintiff’s Motion for Summary Judgment (Docket Entry No. 13);
(3) the Motion to Dismiss the plaintiff’s Amended Complaint filed by The Kroger Co. (Docket Entry
No. 24); and (4) the Motion to Dismiss filed by the United Food and Commercial Workers, Local
1995 (Docket Entry No. 26). Also before the Court are the parties respective responses to the
motions. See Docket Entry Nos. 17, 21, and 29. Set out below are the Court’s recommendations
for disposition of the motions.

I. BACKGROUND
This action was originally filed by the pro se plaintiff in the Davidson County, Tennessee
General Sessions Court on May 27, 2011, against The Kroger Co. (“Kroger”).1 The entirety of the
allegations made by the plaintiff in the Complaint are: “Breach of Collective Bargaining Agreement,
$25,000.” See Docket Entry No. 1-2, at 2.
On June 16, 2011, Kroger filed a notice of removal of the action to this District pursuant to
28 U.S.C. §§ 1331, 1441, and 1446, asserting that the plaintiff’s allegation of a breach of a collective
bargaining agreement (“CBA”) raises a claim arising under federal law. See Docket Entry No. 1.
In lieu of an answer, Kroger filed a Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure arguing that the plaintiff fails to state a claim upon which relief can be granted
because (1) the plaintiff’s five word Complaint fails to satisfy minimal pleadings standards by not
alleging facts showing a claim that is plausible on its face, and (2) to the extent that the plaintiff
alleges a state law claim based on breach of the CBA, such a claim is preempted by Section 301 of
the Labor Management Relations Act (“LMRA”), 28 U.S.C. § 1985 (“Section 301").
In response, the plaintiff filed a Motion to Amend (Docket Entry No. 9), a Motion to Add
the United Food and Commercial Workers, Local 1995 (“Local 1995") as a Third Party (Docket
Entry No. 15), and his pending Motion for Summary Judgment (Docket Entry No. 13). By Order
entered August 15, 2011 (Docket Entry No. 19), the Court granted the plaintiff’s request to amend
but denied his request to add Local 1995 under Rule 14(a)(3) of the Federal Rules of Civil Procedure
because Local 1995 is not a third party defendant.
On August 30, 2011, the plaintiff filed an Amended Complaint adding Local 1995 as a
defendant and amended his factual allegations as follows:
Additionally, the plaintiff is seeking the amount of $1,000,000 for compensatory and
punitive damages. The Kroger Co. and the United Food and Commercial Workers
Local 1995 acted bilaterally and jointly against the plaintiff and in conjunction with
themselves to serve their best interest since the “Collective Bargaining Agreement”
1

The Kroger Co. asserts that its correct name is Kroger Limited Partnership I. See Docket
Entry No. 1, at n.1, and Docket Entry No. 2.
2

was between the two entities. See Exhibit A; this document was filed on my behalf
by the United Commercial and Food Workers Local 1995 to the Kroger Co., and
consequently, a contract was bartered against the plaintiff without plaintiff’s consent.
The plaintiff expressed both verbally and via text to the United Commercial and
Food Workers Local 1995 not to barter a decision without the plaintiff’s consent.
See Docket Entry No. 22. Although the plaintiff referred to “Exhibit A” in his Amended Complaint,
an exhibit was not attached to his Amended Complaint.2
In response to the Amended Complaint, Defendant Kroger moves for dismissal of the
Amended Complaint arguing that the Amended Complaint fails to cure the pleading deficiencies of
the Complaint. See Docket Entry No. 24. Kroger asserts that the factual allegations made by the
plaintiff still fail to set out a plausible claim against Kroger upon which relief can be granted and
that, to the extent that the plaintiff’s allegations can be construed to allege a claim based upon the
CBA, such a claim is preempted by Section 301 as argued in its initial motion to dismiss. Local
1995 also moves for dismissal of the Amended Complaint and adopts the arguments for dismissal
made by Defendant Kroger. See Docket Entry No. 26.
The plaintiff responds to the defendants’ motions to dismiss the Amended Complaint by
asserting that “[t]his claim is plausible due [to] the fact that this is an ongoing practice that both
Kroger and the United Commercial and Food Workers Local 1995 jointly participate against the
employees of the Kroger Co.” See Docket Entry No. 29. He also attaches a copy of a grievance
form filed by Local 1995 on his behalf against Kroger over the way that he was scheduled for work
and the resulting change from a full time employee to a part-time employee. See Docket Entry
No. 29-1. Neither defendant has filed a reply to the plaintiff’s response in opposition.

II. STANDARD OF REVIEW
A motion to dismiss filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure is
reviewed under the standard that the Court must accept as true all of the factual allegations contained

2

Presumably, the plaintiff referred to the CBA filed by Defendant Kroger in support of its
first motion to dismiss. See Docket Entry No. 5-1.
3

in the complaint, resolve all doubts in the plaintiff’s favor, and construe the complaint liberally in
favor of the pro se plaintiff. See Kottmyer v. Maas, 436 F.3d 684 (6th Cir. 2006); Boswell v.
Mayer, 169 F.3d 384, 387 (6th Cir. 1999); Morgan v. Church’s Fried Chicken, 829 F.2d 10, 11-12
(6th Cir. 1987). However, although the complaint need not contain detailed factual allegations, the
plaintiff must provide the grounds for his entitlement to relief and this “requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v.
Gibson, 355 U.S. 41 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). See also Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The factual allegations supplied must be enough to show a plausible right to relief.
Twombly, 550 U.S. at 555-61. More than bare assertions of legal conclusions are required to
withstand a motion to dismiss and the complaint must contain either direct or inferential allegations
respecting all of the material elements to sustain a recovery under some viable legal theory. Id.;
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436-37 (6th Cir. 1988). The Court need
not accept as true legal conclusions or unwarranted factual inferences. See Gregory v. Shelby Cnty.,
220 F.3d 433, 446 (6th Cir. 2000). A complaint does not “suffice if it tenders ‘naked assertions'
devoid of ‘further factual enhancement.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at
557).

III. CONCLUSIONS
The plaintiff’s motion for summary judgment clearly warrants denial. The motion consists
of just two sentences, does not contain any actual arguments showing that the plaintiff is entitled to
judgment as a matter of law, is not supported by any type of evidence whatsoever, and fails to
comply with the requirement of Local Rule of Court 56.01 that the motion be accompanied by a
concise statement of undisputed material facts.

4

Defendant Kroger’s first motion to dismiss should be denied as moot given that the plaintiff
subsequently filed an Amended Complaint, which the Court construes as completely supplanting
the original Complaint which was filed in state court.
However, the motions to dismiss the Amended Complaint filed by Kroger and Local 1995
should be granted. The Court agrees with both defendants that the plaintiff’s pleadings fail to set
forth sufficient facts upon which the Court can conclude that he has stated a plausible claim for
relief.
One primary deficiency of the Amended Complaint is that the plaintiff fails to specifically
state the legal claim or claims he asserts. Although the Court gives some leeway to the plaintiff in
the construction of his pleadings because of his pro se status, the Court and the defendants are
essentially left to guess at the exact nature of the plaintiff’s lawsuit. "The factual allegations,
assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause
of action; they must show entitlement to relief." League of United Latin Am. Citizens v. Bredesen,
500 F.3d 523, 527 (6th Cir. 2007) (citing Twombly, 127 S.Ct. at 1965). The plaintiff’s Amended
Complaint fails in this regard. To the extent that the plaintiff’s Amended Complaint can be
construed to allege a state law claim based on a breach of the CBA, the defendants are correct that
any such claim is completely preempted by Section 301 and fails to state a claim upon which relief
can be granted. See DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994).
A second deficiency is that the Amended Complaint fails to set out distinct and
understandable factual allegations which clearly show the factual basis for the lawsuit. Even if the
Court were able to ascertain the legal claim made by the plaintiff, there is a fatal lack of “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S.Ct. at 1949–50.
Although the insufficiency of the plaintiff’s Amended Complaint warrants dismissal of the
action, the Court nonetheless recognizes that the plaintiff’s inclusion of Local 1995 as a defendant,
the plaintiff’s argument in his response in opposition that he objects to the manner in which Local
5

1995 acted on his behalf in a grievance proceeding with Kroger and/or settled his grievance, and
the exhibit attached to his response all suggest that what the pro se plaintiff may be attempting to
plead in the action is a “hybrid” Section 301 claim.3 When a union member files claims alleging
breach of a collective bargaining agreement by the employer and breach of the duty of fair
representation by the union, the action is known as a hybrid § 301 action. See Black v. Ryder/P.I.E.
Nationwide, Inc., 15 F.3d 573, 583 (6th Cir. 1994).4
However, even given the most generous reading, the plaintiff’s pleadings supplemented by
his response in opposition fails to support such a claim. In order to make out a breach of the duty
of fair representation, the plaintiff cannot rely merely on conclusory statements. Williams v.
Molpus, 171 F.3d 360, 366 (6th Cir. 1999). He must allege specific facts that the union’s actions
during the grievance process were “arbitrary, discriminatory, or in bad faith.” Garrison v. Cassens
Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003). A union’s act of settling a grievance, even if done
without consultation with the worker or in a manner with which he disagrees, does not amount to
a breach of its duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 192, 87 S.Ct. 903, 17
L.Ed.2d 842 (1967); Courie v. Alcoa Wheel & Forged Prodcuts, 577 F.3d 625, 631 (6th Cir. 2009);
Whitten v. Anchor Motor Freight, Inc., 521 F.2d 1335, 1341 (6th Cir. 1975). Further, the plaintiff
has failed to allege in what way Defendant Kroger breached the CBA. His failure to allege facts
showing the plausibility of success on either component of his hybrid claim warrants the dismissal

3

Generally, a plaintiff cannot amend his pleadings to set forth unpled claims through a
response to a motion to dismiss. See Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th
Cir. 1984); Jocham v. Tuscola Cnty., 239 F.Supp.2d 714, 732 (E.D. Mich. 2003); Chambliss v.
Coca-Cola Bottling Corp., 274 F.Supp. 401, 409 (E.D. Tenn. 1967), aff'd on other grounds, 414 F.2d
256 (6th Cir.1969), cert. denied, 397 U.S. 916, 90 S.Ct. 921, 25 L.Ed.2d 97 (1970).
4

The statute of limitations for filing a hybrid Section 301/duty of fair representation claim
is six months. DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 169, 103 S.Ct. 2281,
2293, 76 L.Ed.2d 476 (1983); Schoonover v. Consolidated Freightways Corp., 49 F.3d 219, 221-22
(6th Cir. 1995). Because it was not readily apparent from the plaintiff’s Amended Complaint that
he could be pursuing such a claim, should this Report and Recommendation be rejected and this
action be permitted to proceed, the defendants are not deemed to have waived any possible statute
of limitations defense by not including it in their motions to dismiss.
6

of his complaint. See Roeder v. American Postal Workers Union, AFL-CIO, 180 F.3d 733, 737 (6th
Cir. 1999).

RECOMMENDATION
Based on the foregoing, the Court respectfully RECOMMENDS:
(1) the Motion to Dismiss filed by The Kroger Co. (Docket Entry No. 5) be DENIED as
MOOT;
(2) the plaintiff’s Motion for Summary Judgment (Docket Entry No. 13) be DENIED;
(3) the Motion to Dismiss the plaintiff’s Amended Complaint filed by The Kroger Co.
(Docket Entry No. 24) and the motion to Dismiss filed by the United Food and Commercial
Workers, Local 1995 (Docket Entry No. 26) be GRANTED; and
(4) this action be DISMISSED WITH PREJUDICE for failure to state a claim upon which
relief can be granted.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of the Report and Recommendation upon the party and
must state with particularity the specific portions of this Report and Recommendation to which
objection is made. Failure to file written objections within the specified time can be deemed a
waiver of the right to appeal the District Court's Order regarding the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
Respectfully submitted,

JULIET GRIFFIN
United States Magistrate Judge

7