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UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATHAN A. SAUNDERS, Plaintiff, v. ESTHER HANKERSON, et al., Defendants, Civ. Action No. 02-2536 (EGS) AMERICAN FEDERATION OF TEACHERS, AFLCIO, et al., Plaintiffs, v. BARBARA BULLOCK, et al., Defendants, Civ. Action No. 03-79 (EGS)DEFENDANTS ESTHER HANKERSON, JANICE S. SPENCER, JEROLYN SPICER, ADOLPHUS BROOKINS, JR., H. BERYL HAGER, DOROTHY E. DUPPINS, BRENDA JENKINS, DELORES HAYNES, DOROTHY KING, THERESA D. McDOUGALD, DELORES E. TIMMONS, JANICE E. WATERS, DELORIS B. BROWN, SARAH CRAWLEY, ALAN M. FRIEDMAN, BENITA NICHOLSON, ELNORA C. OXENDINE, MARGARET JAMISON, THEODORE R. VOWELS. JR. MOTION TO DISMISSPursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendant respectfully moves to dismiss the above-captioned case in its entirety. As set forth more fully in the accompanying statement of points and authorities, the grounds for Defendant's motion are that: (1) The Court lacks jurisdiction to hear this case because Plaintiff did not meet the procedural prerequisites to bring suit; (2) Count I states no claim upon which relief can be granted; and (3) Plaintiff lacks standing to bring this suit.
Respectfully submitted,
Dated: March 21, 2003 UNITED STATES DISTRICT COURT NATHAN A. SAUNDERS, Plaintiff, v. ESTHER HANKERSON, et al., Defendants, Civ. Action No. 02-2536 (EGS) AMERICAN FEDERATION OF TEACHERS, AFLCIO, et al., Plaintiffs, v. BARBARA BULLOCK, et al., Defendants, Civ. Action No. 03-79 (EGS)DEFENDANTS ESTHER HANKERSON, JANICE S. SPENCER, JEROLYN SPICER, ADOLPHUS BROOKINS, JR., H. BERYL HAGER, DOROTHY E. DUPPINS, BRENDA JENKINS, DELORES HAYNES, DOROTHY KING, THERESA D. McDOUGALD, DELORES E. TIMMONS, JANICE E. WATERS, DELORIS B. BROWN, SARAH CRAWLEY, ALAN M. FRIEDMAN, BENITA NICHOLSON, ELNORA C. OXENDINE, MARGARET JAMISON, THEODORE R. VOWELS, JR. MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF MOTION TO DISMISSBy contemporaneously filed motion, the above-named Defendants have moved to dismiss the one count in this action pending against them, Count I. Count I alleges a breach of fiduciary duties under the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 501(b). As explained herein, a claim under this statute requires the Plaintiff to comply with mandatory statutory prerequisites. For the reasons set forth more fully in this Memorandum of Points and Authorities, the Court should dismiss the action pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) because Plaintiff have failed to meet the mandatory perquisites for bringing this action, and because Plaintiff lacks standing to make this claim. I. INTRODUCTIONThe Plaintiff, a member of the Washington Teachers' Union ("WTU"), has brought the present suit regarding the alleged malfeasance of the "Individual Defendants" (whose number does not include the above named defendants), and alleges that the above named defendants failed in their oversight duties with respect to the activities of the Individual Defendants. However, as the Amended Complaint shows, herein, Plaintiff never met the jurisdictional and procedural requirements mandated by the LMRDA as predicates to allege the claims in Count I against the above-named Defendants. These requirements are more than mere formalities, they serve important policy and prudential goals of the LMRDA and exist as mandatory predicates to federal jurisdiction. In addition to prudential considerations such as conserving judicial resources and record development, they serve the important purposes of the LMRDA of promoting union democracy, fostering union autonomy by encouraging self-governance with the highest standards of responsibility, and avoiding unnecessary governmental interference with internal union affairs. For their part, the above named defendants are alleged to be members the WTU General Executive Board ("Board")1 and, additionally, Ms. Esther Hankerson also formerly held the position of General Vice President of the Union. All, save for Ms. Hankerson, Mr. Vowels, and Ms. Jamison, are actively employed teachers in the District of Columbia public school system and all, save for Ms. Hankerson, volunteer their services to the Union. They are equally victims of the Individual Defendants' alleged violations of law. The WTU is an affiliate of the American Federation of Teachers, AFL-CIO ("AFT"). The Board has limited authority. It meets twice monthly, except for the months of July, August, and December. Plaintiff's Complaint ("Pl.'s Compl."), Exhibit 2, at 8 ("Constitution and Bylaws Washington Teachers' Union American Federation of Teachers Local 6"). The Board has the authority to hire employees, but dismissal of professional or other employees is governed by contract, and the Board has no authority with respect to elected officers of the Union. Id. at 6. The Board "shall also take such action as may be necessary between [membership] meetings of the Union. Id. Finally, the Board has the authority to establish committees deemed "necessary to carry on the functions of the organization." Id. at 7. Ms. Hankerson had the additional duties of performing the duties of the president in her absence, to countersign checks in the president's absence or under her direction, and convening the elections committee. Id. at 15. All the above named Defendants have been suspended from performing their official duties as Board members, and the WTU is currently operating under a trusteeship administered by the AFT. II. STANDARD OF REVIEWFederal courts are courts of limited jurisdiction, with no inherent or general subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Furthermore, federal courts are presumptively without jurisdiction over civil actions, and the burden of establishing the contrary rests upon the party asserting jurisdiction. See id. The plaintiff bears the burden of establishing by a preponderance of the evidence that the court has jurisdiction to entertain his claims. Fed.R.Civ.P. 12(b)(1); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp.2d 9, 13 (D.D.C.2001); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp.2d 15, 18 (D.D.C.1998). When reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court must accept all factual allegations contained in the complaint as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U. S. 163, 164 (1993). However, because the plaintiff has the burden of establishing the Court's jurisdiction, "`the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police, 185 F. Supp.2d at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, FED. PRAC. & PROC. CIV.2D, § 1350). The court is not to draw inferences favorable to the party asserting jurisdiction. Norton v. Larney, 266 U.S. 511, 515 (1925). On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(6), the court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the Plaintiff the benefit of the inferences that can be derived from the alleged facts. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. In deciding whether to dismiss a claim under Rule 12(b)(6), the court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice. E.E.O.C. v. St. Francis Xavier Paraochial Sch., 117 F. 3d 621, 624-25 (D. C.Cir.1997). Under this standard, a court may dismiss a claim pursuant to Rule 12(b)(6) if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. III. THIS CASE MUST BE DISMISSED PURSUANT TO RULES 12(b)(1) & 12(b)(6) FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTEDA. Plaintiff States No Claim, and this Court Has No Jurisdiction Over this Matter, Because the WTU is a Union Comprised Solely of Public Employees"[T]he LMRDA does not apply to unions or members of unions consisting exclusively of public sector employees." Commer v. McEntee, 145 Supp.2d 333, 338 (S.D.N.Y. 2001), aff'd in part and vacated in part on other grounds by, Commer v. Guiliani, 34 Fed.Appx. 802, 2002 WL 826462 (2d Cir. 2002), (citing statute and cases); cf. New Jersey County and Municipal Workers Municipal Council # 61, AFMSCE v. AFSCME, 478 F.2d 1156 (3d Cir. 1973) (holding that Title III of the LMRDA does not apply to subsidiary bodies comprised entirely of public employees because they are not covered by the Act). The definition of "employers" covered by the LMRDA "does not include the United States or any corporation wholly owned by the Government of the United States or any State or political subdivision thereof," 29 U. S. C. §402(e); and, public employees are not covered by the Act because they are not "employed by an employer." Id. §402(f); see also Wright v. Baltimore Teachers Union, 369 F. Supp. 848, 856 (D. Md. 1974) (holding that a local union affiliate of the AFT consisted of public employees so that no subject matter jurisdiction over LMRDA claims existed). The WTU represents solely public employees. See First Amended complaint ("Am. Compl.") ¶29 ("Washington Teachers Union . . . represent[s] approximately 5,000 persons employed by or retired from the Board of Education of the District Columbia."). Because Defendants Hankerson and WTU Executive Board are officers of a public employees union, this Court lacks subject matter jurisdiction and the case must be dismissed. B. This Court Lacks Subject Matter Jurisdiction Because Plaintiff Failed To Make a Legally Sufficient Demand Upon The WTU as Required By the LMRDA & 501(b)As a prerequisite to bringing suit under LMRDA § 501 (b) against the above named Defendants, "a putative plaintiff must first make an actual demand upon the union under Section 501(b), to initiate legal action against the officer." Commer, 145 Supp.2d 333, 338 (S.D.N.Y. 2001). "Because section 501(b) extends the jurisdiction of the federal courts, it is strictly construed." O'Connor v. Freyman, 1985 WL 121, *1 (D.D.C 1985) (citing Flaherty v. Warehousemen, Garage & Service Station Employees' Local Union No. 334, 575 F.2d 484, 487 (9th Cir.1978) (attached as Exhibit 1); see also International Brotherhood of Teamsters, etc. v. Hoffa, 242 F. Supp. 246, 250-51 (D.D.C. 1965). The demand requirement, moreover, cannot be excused, post hoc, based on claims of futility. "[F]utility [will] not excuse section 501(b)'s requirement that a member first request that the union bring the action." Yager v. Carey, 910 F. Supp. 704, 727 (D.D.C. 1995) (citing O'Connor v. Freyman, supra). Section 501(b) imposes a second mandatory element in addition to demand, to wit, refusal. As the District Court for the Southern District of New York explained, "[t]he demand itself is not sufficient to confer rights upon the putative plaintiff under the statute, as the union must also refuse to take remedial action or to initiate suit within a reasonable period of time after the demand has been made." Commer, 145 Supp.2d at 339. Rather than specifying any actual demand to initiate legal action as required under §501(b), Plaintiff attempts to argue that "any further attempts to exercise administrative remedies against the WTU would be futile because the AFT has suspended the WTU's Constitution, and assumed an administratorship of the WTU" on January 27, 2002. Am. Compl. T 60. This argument misses the boat on at least three counts. First, this supposed bar to the demand requirement arose after the case was filed on December 27, 2002, and logically was no bar to making the required demand necessary to establishing standing. Second, the AFT has now commenced suit to protect the interests of the members. Am. Compl. ¶55. Finally, futility is not a legally sufficient alternative to making a clear demand. This alone is enough to put this matter to rest. As to the second required element, refusal, Plaintiff makes the conclusory statement that "the WTU Executive Board refused to address the concerns of Plaintiff and other WTU members regarding union financial activities, citing the ongoing FBI investigation." Am. Compl. ¶51. Such conclusory statements are insufficient to satisfy the strict pleading requirements necessary to establish this Court's subject matter jurisdiction, and Plaintiff never alleges, and indeed cannot allege, that he made a legally sufficient demand required by § 501(b) that the Union could have refused. See also Part IV. In fact, an action against the malefactors by the Union has now been filed. In the face of these facts, it is clear that Plaintiff did not make a demand upon the WTU for legal action and the Union did not refuse such demand, and therefore this complaint must be dismissed. IV. PLAINTIFF LACKS STANDING TO BRING THIS SUITA Plaintiff suing a union derivatively under § 501(b) must, as a predicate to establishing standing, make a demand that the union take action on the matter at hand and then give the union a reasonable amount of time to act. Yager v. Carey, 910 F. Supp. 704, 726-27 (D. D. C. 1995). The court cannot excuse this requirement on the basis that the Plaintiff pleads futility. Id. at 727. The §501(b) requirement that a Plaintiff make a demand on the union "to sue or recover damages or secure an accounting or other appropriate relief," is a requirement that "a plaintiff to request the union to institute legal proceedings." Adams Lundy v. Assn. Professional Flight Attendants, 844 F.2d 245, 248 (5th Cir. 1988); see also Cassidy v. Horan, 405 F.2d 230, 233 (2d Cir. 1968) (holding "a demand for a sum of money" was not a request for legal action necessitated by § 501(b) and this demand is mandatory); Hanahan v. Lucassen, 764 F. Supp. 194, 196 (D.D.C. 1991). And not only must there be a demand, but the "governing board or officers must refuse or fail to sue" pursuant to the demand for such relief. 29 U. S. C. § 501(b). The Plaintiff here alleges no such legally sufficient demand for suit or refusal related thereto, and this case must be dismissed. V. CONCLUSIONFor each of the foregoing reasons, Movants respectfully request that this Court issue an order granting its Motion to Dismiss.
Respectfully submitted,
Counsel for Defendants Esther Hankerson, et al. Dated: March 21, 2003 CERTIFICATE OF SERVICEPatricia Mary Byrne, Esquire James Michael Cole, Esquire
Stephen R. Spivack, Esquire E. Came Nixon Amy Jackson, Esquire Louis J. Martucci, Esquire Fred Cooke, Esquire Lisa Alexis Jones, Esquire Roland Ashby-Rier Alfred E. Hubbard Stanley M. Brand 1. The above named defendants wish to preserve for the record the following issues: Neither Ms. Margaret Jamison nor Mr. Vowels are members of the WTU Executive Board; Mr. Vowels, furthermore, has never been served, Plaintiff, rather, have served upon Counsel a summons for a Mr. Theodore Vincent. |
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