Rascoe v. APM Terminals Virginia, Inc. et al

Filing 25

OPINION and ORDER granting in part and denying in part defendants' motion for summary judgment; separate motion to dismiss is rendered moot; directing the clerk to enter judgment in favor of the defendants and against the plaintiff; denying defendants' request for an award of attorney fees. Signed by District Judge Robert G. Doumar and filed on 3/29/13. (mwin, )

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

MAR 2 9 2013

•

RONRASCOE,

|

CLERK, USJJISIHIU WJURT
NORFOIJO/A

Plaintiff,

v

Civil No. 2:12cv352

APM TERMINALS VIRGINIA, INC. et al.,
Defendants.

OPINION AND ORDER

In this action, plaintiff Ron Rascoe seeks damages from the defendants for breach of
contract. Inessence, the plaintiffclaims that he was wrongfully discharged from his position as shop
steward ofAPM Terminals in Portsmouth, Virginia. Central to his claim is an alleged implied term

ofhis employment contract that, by custom and practice, the shop steward position is a lifetime

appointment rather than at-will employment. The plaintifffurther alleges that, notwithstanding this
custom and practice, he was terminated from the shop steward position in favor ofan individual with
no seniority who was also the son of the president of a trade association that represented port
employers inlabor negotiations concerning APM Terminals and other facilities throughout the Port
of Hampton Roads.

This is Rascoe's third lawsuit concerning his termination as shop steward. The first two

lawsuits were voluntarily dismissed bythe plaintiff pursuant to Rule 41(a)(1)(A). The defendants
have moved for summary judgment on the ground that this action is barred by Rule 41's two-

dismissal rule and the doctrine of res judicata. The defendants have also requested an award of

attorney fees pursuant to Rule 41(d) of the Federal Rules of Civil Procedure. For the reasons set
forth herein, thedefendants' motion for summary judgment is GRANTED in partand DENIED in

part. Judgment will be entered in favor ofthe defendants, but the Court declines to award attorney
fees to the defendants.
I. BACKGROUND

Rascoe is alongshoreman and amember ofInternational Longshoremen's Association, Local

1248 ("ILA Local 1248"), aunion representing longshore workers employed at marine terminals in
the Port ofHampton Roads. On April 1, 2008, Rascoe was selected to serve as shop steward at
APM Terminals inPortsmouth, Virginia. In his various complaints, Rascoe has consistently alleged

that, as a matter ofcustom and practice, the shop steward position is a lifetime appointment, with
previous shop stewards having served in their positions until death or retirement.

InFebruary 2011, Rascoe was terminated from his position asshop steward, and anew shop

steward was appointed. Rascoe's successor had not previously worked atAPM Terminals, and thus
he had no seniority. Rascoe's successor was also the son of the president ofthe Hampton Roads

Shipping Association ("HRSA"), a trade association that represents port employers in labor
negotiations concerning APM Terminals and other facilities throughout the Port ofHampton Roads.
ILA Local 1248 filed a grievance onbehalfofRascoe with the HRSA-ILA Contract Board, a

body composed ofmanagement and labor officials created bythe collective bargaining agreement

that governs the employment of longshore workers throughout the Port of Hampton Roads. The
Contract Board is charged withadministering andinterpreting the collective bargaining agreement,

including the resolution of grievances. The Contract Board considered Rascoe's grievance at a
March 2011 meeting and found no violation ofthe collective bargaining agreement. ILA Local 1248
filed a second grievance on behalfof Rascoe, which was likewise denied bytheContract Board at a
meeting in April 2011.

On August 22, 2011, Rascoe and ILA Local 1248, together, filed a complaint in this Court

against HRSA, Virginia International Terminals ("VIT"), and APM Terminals Virginia, Inc.
("APMTVA"), docketed by the Clerk as Case No. 2:llcv470. This first complaint expressly
acknowledged that itwas brought pursuant to Section 301 ofthe Labor Management Relations Act

("LMRA"), and it sought to set aside the Contract Board's decision finding that Rascoe's
termination as shop steward did not violate the collective bargaining agreement. This first complaint

also sought an injunction ordering the defendants to reinstate Rascoe to the position ofshop steward,
to pay him back pay, and to credit him with any seniority lost as a result ofhis termination. On

September 21,2011, before any ofthe defendants had entered an appearance, Rascoe and ILA Local
1248 filed a notice ofvoluntary dismissal pursuant to Rule 41(a)(l)(A)(i) of the Federal Rules of
Civil Procedure.

On February 17,2012, proceeding alone, Rascoe filed a complaint inthis Court against the
same three defendants, docketed bythe Clerk asCase No. 2:12cv87. Except for the omission ofILA

Local 1248 as a party to the lawsuit, this second complaint was substantively identical to the first
complaint, seeking to vacate the Contract Board's decision and seeking Rascoe's reinstatement as
shop steward, anaward of back pay, and credit for any lost seniority. On March 14, 2012, HRSA
and VIT appeared and filed a joint motion to dismiss the second complaint. On March 16, 2012,
APM Terminals appeared and filed its own motion to dismiss. On March 28, 2012, Rascoe filed a
notice ofvoluntary dismissal pursuant toRule 41 (a)(l)(A)(i) ofthe Federal Rules ofCivil Procedure.
On May 30, 2012, again proceeding alone, Rascoe filed the original complaint in this
matter—his third complaint overall—in the Circuit Court for theCity ofPortsmouth, Virginia. This
third complaint was substantively identical to the previous two complaints, except that it omitted
HRSA as a defendant and it alleged state court jurisdiction on the theory that, as a supervisory

employee, Rascoe's wrongful discharge claim fell outside the scope of Section 301 ofthe LMRA.

As in the previous two complaints, Rascoe alleged that he was appointed shop steward at APM
Terminals pursuant to certain collective bargaining agreements, that, by custom and practice, the
shop steward position is a lifetime appointment rather than at-will employment, and that, as a
consequence, Rascoe's termination as shop steward was a violation ofthe collective bargaining
agreement. In this third complaint, the plaintiff requested an award oflost wages and any other
consequential damages.

On June 27, 2012, defendant VIT removed the matter to this Court pursuant to 28 U.S.C.

§ 1441, citing the Court's federal question jurisdiction under 28 U.S.C. § 1331 and Section 301 of
the Labor Management Relations Act, 29 U.S.C. § 185. On June 29, 2012, defendant APMTVA
filed notice of its consent to removal of the case, as required by 28 U.S.C. § 1446(b)(2)(A).

On July 9,2012, twelve days after the case was removed from state court, the plaintifffiled
an amended complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. In this
amended complaint, the plaintiff restated his wrongful termination claim, this time omitting any
mention ofthecollective bargaining agreements, instead referencing only anunspecified "contract
with APMTVA" and the "custom and practice in the longshore industry in the Port of Hampton

Roads" that a shop steward ishired for life—apparently suggesting, byomission ofany reference to
the collective bargaining agreements, that his appointment asshop steward ofAPM Terminals was
based ona direct contract ofemployment between himselfandAPMTVA, and notonany collective
bargaining agreement.

On July 23, 2012, VIT filed its motion for summary judgment. Later that same day,

AMPTVA filed ajoinder inVIT's motion.1 In this motion for summary judgment, the defendants

1APMTVAalso filed a motion to dismisspursuantto Rule 12(b)(6)of the FederalRules of
Civil Procedure, based on substantially the same grounds as this motion for summary judgment.

contend that this action is barred by Rule 41's two-dismissal rule and the doctrine ofres judicata.

On August 6,2012, the plaintifffiled abriefin opposition to the motion for summary judgment. On

August 13,2012, VIT filed its rebuttal brief. The motion is now ripe for decision on the papers. See
Local Civ. R. 7(J).
II. SUMMARY JUDGMENT STANDARD

UnderRule56 of the Federal Rules of Civil Procedure, summaryjudgmentshould be granted

only if"there is no genuine dispute as to any material fact and the movant isentitled to judgment as
a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" only if it might affect the outcome of
the case. Anderson v. Libertv Lobby. 477 U.S. 242, 248 (1986). A dispute of material fact is

"genuine" only if the evidence "is such that a reasonable jury could return a verdict for the nonmoving party." Id. Indeciding a summary judgment motion, the Court must view the record as a
whole and inthe light most favorable tothe nonmovant. Terry's Floor Fashions, Inc. v. Burlington
Indus.. Inc., 763 F.2d 604, 610 (4th Cir. 1985).

The party seeking summary judgment "bears the initial responsibility of informing the
district court of the basis for its motion," and demonstrating the absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a

showing, the nonmovant must set forth specific facts, supported bythe record, demonstrating that
"the evidence presents a sufficient disagreement to require submission to thejury." Anderson, 477
U.S. at 251-52.

III. ANALYSIS
A. The Two-Dismissal Rule

Rule41 of the Federal Rules of CivilProcedure governs the dismissal of actions. Under Rule

Because the Court grants summary judgment to the defendants on theirjoint motion, APMTVA's
separate motion to dismiss is rendered moot.

41 (a)(1), an action may be voluntarily dismissed by aplaintiffwithout acourt order. Ifan opposing

party has not yet served an answer or amotion for summary judgment, the plaintiffmay voluntarily
dismiss the case unilaterally by filing anotice ofdismissal. Fed. R. Civ. P. 41(a)(l)(A)(i). The rule
further provides that:

Unless the notice or stipulation states otherwise, the dismissal is without

prejudice. But ifthe plaintiffpreviously dismissed any federal- orstate-court
actionbasedon or including the sameclaim, a notice of dismissal operates as
an adjudication on the merits.
Fed. R. Civ. P. 41(a)(1)(B). This is the two-dismissal rule.

"Because a notice of a second dismissal by the plaintiffserves as an 'adjudication on the

merits,' the doctrine of res judicata applies." Manning v. S.C. Dep'tof Highway & Pub. Transp.,

914 F.2d 44,47 (4th Cir. 1990) (footnote omitted). "Res judicata precludes the assertion ofa claim

after ajudgment on the merits ina prior suit by parties ortheir privies based on the same cause of
action." Meekinsv. United Transp. Union, 946 F.2d 1054,1057 (4th Cir. 1991). "A party invoking

res judicata must establish three elements: (1) a final judgment on the merits in a prior suit, (2) an
identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or
their privies in the two suits." Id. (internal quotation marks omitted).

The plaintiffconcedes that the notice ofdismissal ofthe second complaint operates as a final

judgment on the merits inthat action, and he concedes an identity ofparties between that action and
this one. The plaintiff argues, however, that these three lawsuits do not share the same cause of
action because the present lawsuit asserts a state law breach of contract claim arising from an

allegedly separate contract of employment between Rascoe and APM Terminals, rather than the
collective bargaining agreements that were at issue in the previous actions.

But the Fourth Circuit has adopted a transactional approach to the identity of claims

question.2 Under this approach, "the appropriate inquiry is whether the new claim arises out ofthe
same transaction or series oftransactions as the claim resolved by the prior judgment." Meekins,

946 F.2d at 1058. Applying this standard, itis clear that the present action arises out ofthe same

transaction as that resolved by the second action, Case No. 2:12cv87. Indeed, the original complaint
in this action was substantively identical to the complaint in the second action, alleging the very
same series ofevents and relying on the very same terms ofthe collective bargaining agreements.

The amended complaint in this action elides the allegations concerning the collective bargaining

agreements, asserting an alternate theory of liability, but it nevertheless seeks redress for the very
same claim, arising from the very same events.

Accordingly, the plaintiffs notice of dismissal in Case No. 2:12cv87 operates as an

adjudication on the merits. As aconsequence, this action is barred by the doctrine ofres judicata,
and the defendants are entitled to judgment as a matter of law.
B. Attorney Fees Under Rule 41(d)

The defendants have requested an award of attorney fees pursuant to Rule 41(d) of the
Federal Rules of Civil Procedure. Rule 41(d) provides that:

If a plaintiff who previously dismissed anaction in any court files an action
based on or including the same claim against the same defendant, the court:

(1) may order the plaintiff to pay all orpart ofthe costs ofthat previous
action; and

(2) may stay the proceedings until the plaintiff has complied.

Fed. R. Civ. P. 41(d). "Rule 41(d) conveys broad discretion on federal courts to order stays and

payment ofcosts[,] and neither is mandatory." Prest v. Jermstad, 250 F.R.D. 506, 507 (S.D. Cal.
2008) (omitting internal quotation marks). "However, a court may not award attorneys fees as part
2The Commonwealth ofVirginia has likewise adopted thistransactional approach. See Va.
Sup. Ct. R. 1:6 (adopted eff. July 1, 2006).

ofits costs under Rule 41(d) unless the substantive statute that formed the basis ofthe original suit
allows for the recovery ofsuch fees as costs or the court finds that the plaintiff acted in bad faith."
Espenscheid v. DirectSat USA. LLC. 708 F. Supp. 2d 781, 795 (W.D. Wis. 2010).
Section 301 ofthe LMRA does not provide for an award of attorney fees. The defendants

have not identified any other statute or any provision in the collective bargaining agreements that

might authorize an award ofattorney fees, nor have they alleged bad faith or any other exceptional
circumstances that might justify an award of attorney fees in equity. "Without such express

contractual or statutory authorization, courts generally adhere to the American Rule which requires

each party to bear its own litigation costs, including attorney's fees." United Food &Commercial
Workers. Local 400 v. Marval Poultry Co.. Inc.. 876 F.2d 346, 350 (4th Cir. 1989).

Accordingly, the Court declines to award attorney fees to the defendants pursuant to Rule

41(d) at this time. However, ifthe plaintiff asserts this same claim again in asubsequent action, a
motion for sanctions may not be inappropriate.
IV. CONCLUSION

For the forgoing reasons, the defendants' motion for summary judgment is GRANTED in

part and DENIED in part. The Clerk is DIRECTED to enter judgment in favor of the defendants
and against the plaintiff. The defendants' request for an award ofattorney fees is DENIED.
IT IS SO ORDERED.

™ ,201
March ^ ,2013
Norfolk, Virginia
District Judge