Opinion
Civil No. 01cv06165 (JBS).
August 6, 2002
Mr. Louis G. Dover, Philadelphia, Pennsylvania, Plaintiff Pro Se.
William T. Josem, Esq., Cleary and Josem, LLP, Northfield, New Jersey, Attorneys for Defendant Local #54.
Dawn J. Leeds, Esq., Dessen, Moses Sheinoff, Cherry Hill, New Jersey, Attorney for Defendant Aghen.
Robin J. Gray, Esq., Law Office of Robin J. Gray, Esq., Reading, Pennsylvania, Non-party Movant.
OPINION
This matter comes before the Court on three separate motions to dismiss Plaintiff's complaint. Two of the motions are by the two named defendants in this case, and one is made by a party not named as a defendant in the complaint or on the docket. First, Defendant Robyn H. Aghen, Esquire, asserts in her motion to dismiss [Docket Item 10-1] pursuant to Rule 12(b)(1) and 12(b)(6), Fed.R.Civ.P., that she is not the person that Plaintiff Dover alleges her to be, and therefore, is not properly named as a defendant in this case. Second, Robin J. Gray, Esquire, a person not named as a defendant in the Complaint or on the docket, claims in her motion to dismiss [Docket Item 23-1] that Plaintiff Dover's malpractice action is barred by the applicable statute of limitations and on res judicata grounds. Third, Defendant Local #54 of H.E.R.E., A.C., N.J. A.F.L.C.I.O. ("Union"), asserts in its motion to dismiss [Docket Item 13-1] that (1) the applicable statute of limitations bars Plaintiff Dover's claim for breach of contract, (2) the applicable statute of limitations bars Plaintiff Dover's common law claim of conspiracy, and (3) Plaintiff Dover failed to properly serve Defendant Union. This Court will address each movant's claims separately.
I. BACKGROUND
Mr. Dover was employed by A.C. Showboat, Inc. ("Showboat") from March 13, 1990 until June 6, 1994, when his employment was terminated. (Compl. at 1.) Defendant Union is a labor organization and was the sole and exclusive bargaining agent for Mr. Dover while he worked for Showboat. (Id.) Mr. Dover alleges that after Showboat terminated his employment, he followed the grievance procedure, as the collective bargaining agreement specified, in which the final step calls for the Union and Showboat to submit the issue to arbitration. (Id.) Mr. Dover alleges in his complaint that the Union decided not to submit the matter to arbitration in approximately the last week of September, 1994. (Id.) Mr. Dover subsequently retained an attorney to assist him in suing Showboat for breach of contract. (Comp. at 2.)
On July 31, 1995, in the Superior Court of New Jersey, Mr. Dover, with the assistance of his attorney filed suit against Showboat for breach of contract. On September 5, 1995, Showboat removed the matter to the United States District Court for the District of New Jersey in Camden, New Jersey, where the Honorable Joseph E. Irenas subsequently dismissed the action without prejudice on September 28, 1995. (Id.) In a letter dated October 2, 1995, Attorney Gray informed Mr. Dover that Judge Irenas had dismissed the case because Mr. Dover was "bound by the terms of the collective bargaining agreement and that [his] only option to proceed against Showboat was in Arbitration." (Pl.'s Letter in Resp. to Ct.'s Req. for Docs. at 15.)
In his present complaint, Mr. Dover alleges that Robyn M. Aghen, Esquire, is the married name of Robin J. Gray, Esquire, and that she represented him in this breach of contract suit. (Id.)
On October 4, 1996, Mr. Dover filed a pro se malpractice action against Attorney Gray and her law firm, Dessen, Moses, Sheinoff in the Superior Court of New Jersey. (Compl. at 2, Gray's Mot. to Dismiss at 1.) On April 3, 1998, an Order granting Mr. Dover's request to discontinue without prejudice was entered. On July 13, 1998, Mr. Dover petitioned the Court to reinstate his case against Showboat, but his petition was denied on September 9, 1998.
On December 28, 2001, Mr. Dover filed the present complaint, alleging that (1) the Union had failed to meet the requirements of the collective bargaining agreement, (2) Defendant Aghen was liable for malpractice and breach of contract, (3) the Union and Defendant Aghen conspired to deprive Mr. Dover of his rights. (Compl. at 3-4.)
On May 2, 2002, Ms. Aghen filed her motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) Fed.R.Civ.P. On May 10, 2002, the Union filed its motion to dismiss the complaint pursuant to the applicable statutes of limitations and improper service. On May 23, 2002, Mr. Dover submitted a statement to this Court in which he asserted that, to the best of his knowledge, the correct name of the non-union defendant should be Robin J. Gray, Esquire, not Robyn M. Aghen, Esquire. (See Docket Item 16-1). On June 24, 2002, Mr. Dover filed a motion to amend his complaint, which substituted Attorney Gray's name in place of Attorney Aghen's name in the motion's caption, but attached no amended Complaint and made no reference to the fact he believed he had mistakenly named the wrong defendant. On July 22, 2002, the Honorable Joel B. Rosen denied Plaintiff's motion without prejudice indicating that Mr. Dover failed to submit the proposed amended complaint with his motion, and therefore no amendment would be granted. Finally, on July 29, 2002, Attorney Gray, who has never been named in or served with any complaint in this action, filed a motion to dismiss pursuant to the applicable statute of limitations and res judicata.
If Mr. Dover still seeks to file an amended complaint to name Ms. Gray as a defendant, he will first have to demonstrate why the amendment would not be futile, that is, why it would be a timely claim and why it would not be barred by res judicata. Further, if Mr. Dover and Ms. Gray are both citizens of Pennsylvania, there would be no diversity of citizenship, as required for such a claim as legal malpractice, which arises under state law, see 28 U.S.C. § 1332. This opinion does not determine these issues but merely points them out to Mr. Dover since he is a pro se litigant who may be otherwise unaware of these precepts.
It is unclear how and when Attorney Gray was made aware of this action. Additionally, it seems that Gray believes she is a defendant in this action, despite the fact that there is no record of proper service of the complaint. Presumably Mr. Dover mailed some sort of notice to Ms. Gray even though he was not authorized to file an Amended Complaint.
For the following reasons, this Court will dismiss Ms. Gray's motion without prejudice to refiling should she become a defendant, grant Defendant Aghen's motion, and grant the Union's motion. Plaintiff's Complaint, therefore, will be dismissed.
II. DISCUSSION
A. Gray's Motion to Dismiss Under the Applicable Statute of Limitations and Res Judicata
Mr. Dover has not named Attorney Gray as a defendant in this case in either his complaint or his amended complaint. Because she has not been named as a defendant or served with any complaint, Gray is not a party to this case, and thus, she is not required to respond to this complaint at all. Gray has, however, submitted a motion. At this time it is premature to rule on the merits of Gray's motion. Therefore, this Court will dismiss Ms. Gray's motion without prejudice to refiling, should Mr. Dover be permitted to file an amended complaint naming Ms. Gray as a defendant. If she is so named and served, Gray will be able to renew her motion to dismiss under the applicable statute of limitations and res judicata issues, and this Court will review her motion on its merits. At the present time, however, there is no claim against Ms. Gray, so there is no controversy for this Court to adjudicate. For the foregoing reasons, this Court dismisses Ms. Gray's motion to dismiss, the Court finding that Ms. Gray has not been joined as a party.
B. Aghen's Motion to Dismiss Pursuant to 12(b)(6) and 12(b)(1)
Ms. Aghen asserts in her motion to dismiss that, contrary to the allegation in Mr. Dover's amended complaint, she is not the same person as Ms. Gray. (See Aghen Mot. to Dismiss at ¶ 4.) Further, Ms. Aghen asserts that Robyn M. Aghen is not the married name of Robin J. Gray. (Id. at ¶ 3.) Ms. Aghen submitted to this Court copies of her birth certificate and passport, which identify her as Robyn M. Aghen and Robyn Michelle Aghen, respectively.
The Court notes that Mr. Dover also indicated in his May 23, 2002 letter that "Robin J. Gray, Esquire, Defendant, is correct name to the best of my knowledge and belief, not Robyn M. Aghen." Mr. Dover, however, does not withdraw his claim against Aghen. It appears that Mr. Dover, a pro se litigant, mistakenly believed the his May 23, 2002 correspondence would suffice to substitute Attorney Gray as a defendant in Attorney Aghen's place. Although pro se litigants are to be afforded deference by the Court, see Haines v. Kerner, 404 U.S. 519, 520 (1972), this Court cannot allow such a substitution. Therefore, this Court will grant Ms. Aghen's motion to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
Alternatively, to the extent that the Court relies upon the evidence submitted by Robyn Aghen (namely her passport and driver's license), which are outside the pleadings, her Rule 12(b)(6) dismissal motion is treated as a motion for summary judgment under Rule 56. Since Mr. Dover offers no contrary evidence regarding Robyn Aghen's identity, summary judgment is also granted in defendant Aghen's favor.
C. The Union's Motion to Dismiss Under the Applicable Statutes of Limitations and Improper Service
In his complaint, Mr. Dover alleges that the Union (1) breached the collective bargaining agreement by failing to bring his claim against Showboat to arbitration, (2) breached its duty of fair representation, and (3) conspired with co-defendant Aghen to deny Plaintiff his rights. The Union counters that the complaint should be dismissed because (1) Mr. Dover has exceeded the six month statute of limitations for breach of the collective bargaining agreement and breach of the duty of fair representation, (2) Mr. Dover has exceeded the two year statute of limitations for the common law tort of conspiracy, and (3) Mr. Dover's service of process was insufficient.
1. Mr. Dover's Breach of Collective Bargaining Agreement and Breach of Fair Representation Claims
In his Complaint, Mr. Dover alleges that "Union Defendant violated the C.B.A. by not bringing the matter to arbitration. . . . (See C.B.A. Articles 3, 5, 58, 20). . . . Defendant union also breached its duty of fair representation to Plaintiff." (Compl. at 2.) The Union responds by characterizing Mr. Dover's claim as a variation of the "hybrid suit," which generally consists of a claim against the employer for breach of the collective bargaining agreement and a claim against the union for breach of duty of fair representation and which carries a six month statute of limitations, as described in DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983). The Supreme Court explains,
Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301 [of the Labor Management Relations Act], since the employee is alleging a breach of the collective bargaining agreement. The suit against the union is one for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act.Id. Such a section 301/fair representation claim is called a "hybrid suit."
In DelCostello, the Supreme Court faced the task of determining what statute of limitations should apply to a hybrid suit. After considering public policy, similar state law statutes of limitations, and similar federal law statutes of limitations, the Court determined that the six month statute of limitations provided in § 10(b) of the National Labor Relations Act ("NLRA"), which governs disputes over unfair labor practices, was most analogous. It is undisputed that the six month limitation period provided in section 10(b) of the NLRA, 29 U.S.C. § 160(b), applies to these "hybrid" actions. Service Employees Int'l Union Local 36, AFL-CIO v. City Cleaning Co., Inc., 982 F.2d 89, 94 (3d Cir. 1992) (citing DelCostello;Taylor v. Ford Motor Co., 761 F.2d 931, 933 (3d Cir 1985)).
Additionally, in DelCostello, the Supreme Court recognized a second type of Section 301 claim. A "pure" Section 301 action occurs when a union sues an employer for breach of a collective bargaining agreement. See Service Employees, 982 F.2d at 94, n. 2 (3d Cir. 1992). The Third Circuit has held that in pure Section 301 claims, where there are no claims by an employee against the Union for breach of the duty of fair representation, state-law statute of limitations apply. Service Employees, 982 F.2d at 95 (applying the Pennsylvania six year contract action limitation to a pure section 301 action to enforce an arbitrator's award under a CBA).
This Court finds that Mr. Dover's claim is more appropriately treated as a "hybrid suit," and accordingly, the six month statute of limitations applies. The Complaint alleges that the Union breached its duty to Mr. Dover to file an arbitration demand on his behalf, that is, that the Union breached its duty of fair representation. Thus, Mr. Dover's claim against the Union for breach of the collective bargaining agreement and breach of fair representation is time-barred pursuant to the six month statute of limitations set forth by the United States Supreme Court. See DelCostello, 462 U.S. at 169 (holding that six month statute of limitations applies to actions by employee against labor union and employer for breach of collective bargaining agreement and breach of duty of fair representation). The date which started the tolling of the statute of limitations most favorable to Mr. Dover would be the last week in September, 1994 when the Union decided not to bring Mr. Dover's issue to arbitration. Mr. Dover filed his present complaint against the Union on February 6, 2002. This date clearly lies outside of the six month statute of limitations by over seven years.
2. Mr. Dover's Personal Injury Due to Conspiracy Claim
Mr. Dover brings a personal injury claim against the Union, alleging that "Union Defendant and Defendant Aghen through Defendant agents, law firms and union cronies colluded to deny Plaintiff rights." (Compl. at 4.) As the Union correctly notes in its brief, this Court must apply the New Jersey statute of limitations for personal injury to this claim. See Owens v. Okure, 488 U.S., 235, 235 (1989) (holding that federal court borrows state's statute of limitations where plaintiff brings a personal injury claim); see also Lake v. Arnold, 232 F. 3d 360 (3d Cir. 2000) (applying Pennsylvania's statute of limitations to a claim for personal injuries brought in federal court).
Where the plaintiff files a claim for personal injury as the result of a conspiracy, New Jersey law applies the same two year statute of limitations that governs personal injuries. See McGrogan v. Till, 744 A.2d 255, 260 (N.J.Super.Ct. Law Div. 2000) (holding that the two year statute of limitations set forth in N.J.S.A. 2A:14-2 applied where plaintiff alleged that former attorney conspired with others to extort money from him). Specifically, N.J.S.A. 2A:14-2 provides that "Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued." N.J.S.A. 2A:14-2.
In this case, Mr. Dover's suit against Showboat was dismissed on September 28, 1995. Therefore, the latest possible date for his attorney and the Union to have conspired against him would have been September 28, 1995. Mr. Dover filed the instant complaint on February 6, 2002, well outside the scope of New Jersey's two year statute of limitations.
Because this Court finds that Plaintiff Dover's breach of the collective bargaining agreement, breach of duty of fair representation, and personal injury via conspiracy claims are all barred by the applicable statutes of limitations, this Court will grant Defendant Union's Motion to Dismiss. This Court need not reach the Union's improper service of process claim.
III. CONCLUSION
For the foregoing reasons, this Court will dismiss without prejudice Gray's motion to dismiss Plaintiff's complaint, grant Defendant Aghen's Motion to Dismiss Plaintiff's complaint, and grant Defendant Union's motion to dismiss Plaintiff's complaint. The accompanying Order will be entered dismissing the Complaint in its entirety.
ORDER
THIS MATTER having come before the Court on the Motions of Defendant Local #54, Defendant Robyn M. Aghen, and Non-party Movant Robin J. Gray to Dismiss; and the Court having considered all submissions; and for the reasons set forth in the Opinion of today's date;IT IS on this ____ day of August, 2002, hereby
ORDERED that Defendant Local #54's Motion to Dismiss [Docket Item 13] be, and hereby is, GRANTED, and the Complaint is DISMISSED with prejudice as against this Defendant;
IT IS FURTHER ORDERED that Defendant Robyn M. Aghen's Motion to Dismiss [Docket Item 10] be, and hereby is, GRANTED, and the Complaint is DISMISSED with prejudice as against this Defendant;
IT IS FURTHER ORDERED that Non-party Movant Robin J. Gray's Motion to Dismiss [Docket Item 23] be, and hereby is, DISMISSED WITHOUT PREJUDICE, the Court finding that no claim has been asserted against Robin J. Gray.