Opinion
Case No. 1:03CV53 DAK.
June 17, 2004
ORDER
This case is before the court on Plaintiff's Motion for Default Judgment. The court held a hearing on this motion on June 14, 2004. At the hearing, Plaintiff was represented by Randall Phillips and Defendant was represented by Carlie Christensen. The court took the matter under advisement. After hearing arguments, reviewing the parties' memoranda, and analyzing the relevant law and facts, the court enters the following Order.
BACKGROUND
On May 8, 2003, Plaintiff commenced this action by filing a Motion to Enforce Arbitration Award against the United States Postal Service ("USPS"). Plaintiff did not file a Complaint. On or about July 30, 2003, after an Order to Show Cause by this court, Plaintiff attempted to serve the United States Postal Service by serving the United States Attorney's Office. Plaintiff's summons was a twenty day summons instead of the sixty day summons appropriate for a governmental entity.
The arbitration appears to have been between the USPS and the postal employees' union on behalf of Plaintiff. On July 17, 2003, an attorney for USPS wrote to Plaintiff's counsel stating that two checks were enclosed for the full amount of relief awarded in the arbitration. The letter further stated that should Plaintiff "determine to go forward with a suit against the Postal Service, please be advised that the Postal Service does not waive proper service of process as set forth in the Federal Rules of Civil Procedure." Plaintiff contends that this letter demonstrates that the USPS was aware of her lawsuit. However, the language of the letter actually implies otherwise.
Ms. Carlie Christensen, Defendant's counsel, wrote Plaintiff's counsel a letter on August 6, 2003, stating that he could not commence an action against the USPS by filing a motion and supporting memorandum rather than a Complaint. She also stated that neither her office, the Attorney General's office, nor the USPS have been properly served and that the summons delivered to her office improperly stated 20 rather than 60 days. She concluded by stating that because the action was not properly commenced or served, the time for filing a response would not begin to run until the deficiencies were cured. Plaintiff did not file a Complaint or attempt to re-serve the USPS.
The court held a status conference on this case in February 2004. However, Defendant was not represented because there had been no entry of appearance on behalf of the USPS and, therefore, no notice was sent. At the hearing, Plaintiff's counsel indicated that he intended to file a motion for default judgment. The court instructed him to send a copy of the motion to Ms. Christensen. The parties have fully briefed the motion for default judgment.
DISCUSSION
Plaintiff's motion for default judgment presents the court with two issues: whether Plaintiff was required to file a Complaint rather than a motion to enforce the arbitration in order to commence her action in this court and, if the motion is sufficient, whether the USPS is in default. The USPS admits that under the Tenth Circuit's unpublished decision in Williams v. Swanson, No. 01-6404 (10th Cir. January 9, 2003), the insufficiency of process must be raised by a motion or in a responsive pleading and is not a defense to a motion for default judgment.
Plaintiff argues that her action was brought under the Federal Arbitration Act ("FAA"), 9 U.S.C. § 13, which states that a party "moving" to confirm an award shall follow certain procedures. Plaintiff argues that the term "moving" contemplates the action will be commenced by motion rather than by a Complaint. The USPS argues although Plaintiff relies on the FAA, the FAA is not applicable in this case because USPS employees are excluded from its coverage. Bacashihua v. United States Postal Service, 859 F.2d 402, 404-05 (6th Cir. 1988); American Postal Workers Union, AFL-CIO v. United States Postal Service, 823 F.2d 466 (11th Cir. 1987). The USPS also cites to United Food and Commercial Workers, Local Union No. 7R v. Safeway Stores, Inc., 889 F.2d 940, 944 (10th Cir. 1989), which held that the FAA "expressly excludes from its coverage `contracts of employment of . . . any . . . workers engaged in foreign or interstate commerce,'" and "therefore, is generally inapplicable to labor arbitration." In United Food and Commercial Workers, the court concluded that the plaintiff was "barred from seeking judicial confirmation and enforcement of the arbitrator's award under the [Federal] Arbitration Act." Id. at 943.
Because the FAA does not provide the basis for Plaintiff's case, Plaintiff was required to commence her case according to the Federal Rules of Civil Procedure. Rule 3 of the Federal Rules of Civil Procedure states that an action is commenced by the filing of a "Complaint," and Rule 8 of the Federal Rules of Civil Procedure provides the requirements for that pleading. Even though Plaintiff commenced her action with a motion rather than a Complaint, the court could construe the motion as a Complaint if it contained all of the necessary elements. However, under Rule 8, Plaintiff was required to set forth the jurisdictional basis of her claims. Plaintiff's motion provides only the FAA as a jurisdictional basis for her claims. Based on the above cases cited by the USPS, the FAA does not provide a jurisdictional basis for Plaintiff's action. Therefore, even though the remainder of Plaintiff's motion could be construed to meet the elements of Rule 8, the motion cannot be construed to be a Complaint because it is lacking a proper jurisdictional statement.
At oral argument on this motion, the USPS asserted that there is no jurisdictional basis for Plaintiff's action because she should have filed a grievance with the union and exhausted the procedures under the collective bargaining agreement before filing this action. However, the court does not have sufficient facts before it to make such a determination. In United Food and Commercial Workers, Local Union No. 7R v. Safeway Stores, Inc., 889 F.2d 940, 945 (10th Cir. 1989), the court explained that in order to seek confirmation of an arbitrator's award under section 301 of the Labor Management Relations Act, a plaintiff must "show (1) that she has exhausted the grievance procedures under the collective bargaining agreement, or (2) that she falls within an exception to the exhaustion requirement." (Citations omitted.) "The two recognized exceptions are (a) where either the union or the employer has repudiated the collective bargaining agreement's grievance procedures, or (b) where the union has breached its duty of fair representation by acting arbitrarily, discriminatorily, or in bad faith." Id. (citations omitted). Because there are no facts before the court as to whether either of these exceptions would apply, the court cannot presently conclude that there is no jurisdictional basis for Plaintiff's action.
Plaintiff is granted thirty days leave to file an Amended Complaint that establishes both that the district court has subject matter jurisdiction over her claims and that the United States has waived its sovereign immunity from suit for such claims. Because the motion Plaintiff filed is deficient in this respect, the case has not been commenced and the USPS was not required to respond. Moreover, to obtain default judgment against an agency of the United States, a plaintiff must establish more than merely a failure to respond, she must establish a claim or right to relief by satisfactory evidence. Glendora v. Pinkerton Sec. And Det. Servs., 25 F. Supp.2d 447 (S.D.N.Y. 1998); Poliquin v. Heckler, 597 F. Supp. 1004 (D. Me. 1984); Ross v. United States, 574 F. Supp. 536 (S.D.N.Y. 1983); United States v. Zulli, 418 F. Supp. 252 (E.D. Pa. 1975). Plaintiff has not made such a showing. Therefore, Plaintiff's motion for entry of default judgment is denied.
CONCLUSION
Based on the above reasoning, Plaintiff's Motion for Default Judgment is DENIED. Plaintiff is granted thirty days from the date of this order to file an Amended Complaint that includes a proper jurisdictional statement in accordance with Rule 8 of the Federal Rules of Civil Procedure.