Opinion
No. 4:01-CV-488-Y
January 9, 2002
ORDER DENYING MOTIONS TO DISMISS AND ORDERING PLAINTIFF TO FILE AN AMENDED COMPLAINT
Pending before the Court are four motions to dismiss: (1) Motion to Dismiss of defendants American Federation of Government Employees AFL-CIO ("AFGE"), Bobby Harnage, Mark Roth, Chuck Hobbie, Rod Tanner, Rogelio (Roy) Flores, Harry Dawson, Carl Yates, Derrell Chandler, and Aquilla Brock [doc. # 22-1], filed July 19, 2001; (2) Defendant Sandra McClarney's Motion to Dismiss Complaint [doc. # 26-1], filed August 2; (3) Defendant Donnie Hurd's Motion to Dismiss Complaint [doc. # 25-1], filed August 2; and (4) Motion to Dismiss of Defendant Jim McCann [doc. # 42-1], filed September 17. Having carefully considered the motions, responses, and replies, the Court finds that the motions should be DENIED.
In all the motions, the defendants argue that the case should be dismissed for, in essence, three main reasons: (1) for failure to state a claim under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411 et seq., (2) because the claims are barred by the statute of limitations, and (3) because the claims are barred by res judicata. In the alternative, the defendants request that Plaintiff be ordered to file an amended complaint "to provide specificity as to each defendant's alleged actions and the dates of each alleged action."
With respect to the first reason, the Court notes that "a motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Kaiser Aluminum Chem. Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983) (quoting Wright Miller, Federal Practice and Procedure § 1357 (1969)). The court must accept as true all well pleaded, non-conclusory allegations in the complaint, and must liberally construe the complaint in favor of the plaintiffs. Kaiser Aluminum, 677 F.2d at 1050. A court should not dismiss a complaint for failure to state a claim unless it appears beyond doubt from the face of the plaintiff's pleadings that he can prove no set of facts in support of his claim that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Garrett v. Commonwealth Mortgage Corp., 938 F.2d 591, 594 (5th Cir. 1991); Kaiser Aluminum, 677 F.2d at 1050.
In this case, Plaintiff's complaint appears to allege, albeit in a confusing and convoluted manner, that the defendants violated three provisions of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411 et seq. After carefully reviewing the pleadings and the arguments in the documents filed, the Court is not convinced that Plaintiff could prove no set of facts that would entitle him to relief against at least some of the various named defendants. Therefore, the Court concludes that Defendants' motions to dismiss for failure to state a claim upon which relief can be granted should be DENIED.
Pursuant to Federal Rule of Civil Procedure 12(b), if "matters outside the pleading are presented to and not excluded by the court," the court must convert defendants' 12(b)(6) motions to dismiss into Rule 56 motions for summary judgment. The court notes that the parties attached multiple affidavits and exhibits to their motions, response, and replies. However, because the court has not considered these documents in ruling on the 12(b)(6) motions to dismiss, the court will not convert defendants' motions into Rule 56 motions for summary judgment.
With respect to the second reason, since the LMRDA does not contain a statute of limitations, federal courts must look to the law of the state in which the litigation arose to determine the applicable statute of limitations. See Reed v. United Transp. Union, 488 U.S. 319, 323 (1989); Dantagnan v. I.L.A. Local 1418, AFL-CIO, 496 F.2d 400, 401 (5th Cir. 1974); Sewell v. Grand Lodge of Int'l Ass'n of Machinists, 445 F.2d 545, 549. (5th Cir. 1971)
Defendants, in their responses, assert that "Title I LMRDA claims are governed by the limitations period applicable under the general or residual personal injury statutes of the state where the LMRDA suit is bought." Defendants state that in Texas the statute of limitations for personal injury causes of actions is two years and assert that "[s]ince plaintiff's suit was filed on June 13, 2001, only events occurring since June 13, 1999 may properly be considered by this Court." Defendants allege that Plaintiff's complaint contains virtually no dates and that the few dates the plaintiff does specify almost all precede June 13, 1999.
Plaintiff states that the claims in his complaint are not barred by the statute of limitations because the "issue in this matter is one of a continuous and on-going pattern of behavior which continues to date." (Pl.'s Mem. in Opp'n to Defs.' Mot. at 12.) Plaintiff claims, in essence, that the defendants have continually either failed to act on his behalf or acted in a manner intended to harm him. He alleges a continuing course of conduct motivated by what appears to be personal animosity.
Courts have often found that a "continuing violation" can be used to extend a court's jurisdiction over violations occurring outside the limitations period. However, the alleged series of continuing violations must include both timely and untimely instances of actionable misconduct. See Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997, 1000-01 (6th Cir. 1994); Adams v. Budd Co., 846 F.2d 428, 432 (7th Cir. 1988); Lewis v. Local Union No. 100 of the Laborers' Int'l Union of North America, AFL-CIO, 750 F.2d 1368, 1379 (7th Cir. 1984) (finding continuing violation where plaintiff alleged union repeatedly refused to refer him out for employment during statutory period); N.L.R.B. v. Actor's Equity Ass'n., 644 F.2d 939 (2d Cir. 1981). In this case, the Court is unable to determine from Plaintiff's complaint whether any of the alleged instances of actionable misconduct occurred within two years prior to June 13, 2001, the date Plaintiff filed his complaint. Consequently, the Court concludes that Plaintiff should file an amended complaint.
"Although not strictly authorized by the language of Federal Rule of civil procedure 12(e), an order for a more definite statement may perhaps be appropriate if the addition of a date . . . would significantly advance the litigation because of a statute of limitations or a statute of frauds." 5A Charles Alan Wright Arthur R. Miller, Federal Practice Procedure § 1376, p. 594-96 (West 1990).
With respect to the third reason, the following four elements must be satisfied in order for res judicata to apply: (1) the parties to both actions must be identical (or at least in privity); (2) the judgment in the first action must be rendered by a court of competent jurisdiction; (3) the first action must have concluded with a final judgment on the merits; and (4) the same claim or cause of action must be involved in both suits. See Langston v. Insurance Co. of North America, 827 F.2d 1044, 1046 (5th Cir. 1987); Stevenson v. Int'l Paper Co., 516 F.2d 103, 108 (5th Cir. 1975). After reviewing the plaintiff's complaint in its present form, the Court concludes that such a defense would be better raised in a motion for summary judgment after Plaintiff has had the opportunity to file an amended complaint.
Based on the foregoing, it is ORDERED that Defendants' motions to dismiss [doc. # 22-1, 25-1, 26-1, 42-1] are DENIED.
Furthermore, it is ORDERED that Plaintiff shall file an amended complaint no later than 4:30 p.m. on February 11, 2002. In the amended complaint, the plaintiff shall present each claim for relief in a separate count, as required by Rule 10(b) of the Federal Rules of Civil Procedure. In addition, Plaintiff shall specify, as clearly as possible, the dates of each alleged event that violates a provision of the LMRDA. Failure to file an amended complaint complying with this order and the Federal Rules of Civil procedure may result in dismissal of the Plaintiff's claims in the above-styled and numbered cause.
See Anderson v. Dist. Bd. of Trustees of Cent. Fl. Cmty. College, 77 F.3d 364, 367 (11th Cir. 1996) (stating that "with the shotgun pleading out of the way, the trial judge will be relieved of `the cumbersome task of sifting through myriad claims, many of which [may be] foreclosed by [various] defenses.'")