McLaughlin v. Int'l Bhd. of Teamsters

Full title: Timothy MCLAUGHLIN, Plaintiff, v. The INTERNATIONAL BROTHERHOOD OF…

Court: United States District Court, W.D. Pennsylvania

Date published: Sep 6, 2022

641 F. Supp. 3d 177 (W.D. Pa. 2022)

Opinion

Civil Action No. 2:21-cv-832

2022-09-06

Timothy MCLAUGHLIN, Plaintiff, v. The INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 249, et al., Defendants.

James B. Lieber, Jacob M. Simon, Lieber Hammer Huber & Paul, P.C., Pittsburgh, PA, for Plaintiff. Joseph J. Pass, Patrick K. Lemon, Justin T. Romano, Jubelirer, Pass & Intrieri, P.C., Pittsburgh, PA, for Defendants The International Brotherhood of Teamsters, Local 249, Michael A. Ceoffe, Joseph Rossi. Joshua M. Bloom, Joshua M. Bloom & Associates, Pittsburgh, PA, for Defendants Marc Scott, Katie Scott, Byron Roland. John L. Lamb, Michael E. Truncellito, Buchanan Ingersoll & Rooney PC, Philadelphia, PA, for Defendants Don Kraus, Frank Conforti, TriStar Pictures, Inc. Carolyn Owens Boucek, Clare M. Gallagher, Eckert Seamans Cherin & Mellot, LLC, Pittsburgh, PA, for Defendant CBS Studios, Inc.

WILLIAM S. STICKMAN IV

James B. Lieber, Jacob M. Simon, Lieber Hammer Huber & Paul, P.C., Pittsburgh, PA, for Plaintiff.

Joseph J. Pass, Patrick K. Lemon, Justin T. Romano, Jubelirer, Pass & Intrieri, P.C., Pittsburgh, PA, for Defendants The International Brotherhood of Teamsters, Local 249, Michael A. Ceoffe, Joseph Rossi.

Joshua M. Bloom, Joshua M. Bloom & Associates, Pittsburgh, PA, for Defendants Marc Scott, Katie Scott, Byron Roland.

John L. Lamb, Michael E. Truncellito, Buchanan Ingersoll & Rooney PC, Philadelphia, PA, for Defendants Don Kraus, Frank Conforti, TriStar Pictures, Inc.

Carolyn Owens Boucek, Clare M. Gallagher, Eckert Seamans Cherin & Mellot, LLC, Pittsburgh, PA, for Defendant CBS Studios, Inc.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiff Timothy McLaughlin ("McLaughlin"), a unionized professional truck driver, claims that he has been blacklisted for over a decade from work as a driver on movie and television productions in Pittsburgh, Pennsylvania. (ECF No. 41). In December 2021, he filed a twelve-count Amended Complaint against

ten Defendants¹ alleging violations of federal and state law, including the Labor-Management Reporting and Disclosure Act ("LMRDA"), the Racketeer Influenced and Corrupt Organizations Act ("RICO"), the Age Discrimination in Employment Act ("ADEA"), the Pennsylvania Human Relations Act ("PHRA"), the National Labor Relations Act ("NLRA"), and Pennsylvania common law.² (ECF No. 41). Defendants subsequently filed four Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(6), which collectively challenge all of McLaughlin's claims. (ECF Nos. 48, 50, 52, 54). For the reasons below, the Court will grant in part and deny in part Defendants' motions.

1 Defendants include: International Brotherhood of Teamsters, Local 249 ("Union" or "Local 249"); Marc Scott ("M. Scott"); Katie Scott ("K. Scott"); Byron Roland ("Roland"); Don Kraus ("Kraus"); Michael Ceoffe ("Ceoffe"); Frank Conforti ("Conforti"); Joseph Rossi ("Rossi"); CBS Studios, Inc. ("CBS"); and TriStar Pictures, Inc. ("TriStar").

2 The Court exercises federal-question jurisdiction over the federal claims, see 28 U.S.C. § 1331, and supplemental jurisdiction over the state claims, see id. § 1367(a).

I. BACKGROUND

McLaughlin was born in 1952. (ECF No. 41, ¶ 22). He is a professional truck driver with a Class A commercial driver's license and has been a member of Local 249 of the International Brotherhood of Teamsters for over fifty years. (Id. ¶¶ 1, 23). Between 2001 and 2011, McLaughlin worked consistently as a driver on movie and television productions in Pittsburgh. (Id. ¶ 25). Such positions are "highly attractive" because they provide a high wage rate and substantial opportunities for overtime. (Id. ¶¶ 27-28). To fill these positions, the production companies often reach a standard agreement with Local 249. (Id. ¶¶ 91, 99). Under that standard agreement, the Union operates a non-exclusive hiring hall—meaning the Union refers members (and non-members) to the companies as potential employees, but the companies are free to hire employees from other sources.³ (Id. ¶¶ 30, 92). In making its referrals, the Union does not rely on its regular seniority system. (Id. ¶ 37). Instead, the Union uses a so-called "Producer's Choice" system, where the Union sends the companies the resumes and applications of all interested individuals, and the producers decide who to hire. (Id. ¶¶ 101-02).

3 See Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 71 n.1, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989) ("The word 'exclusive' when used with respect to job referral systems is a term of art denoting the degree to which hiring is reserved to the union hiring hall.").

In late 2010, McLaughlin began to publicly complain about the "Producer's Choice" system. (Id. ¶¶ 33-34). For example, at a Union meeting that year, McLaughlin stated that the system is "unfair" because it "insulate[s] nepotism and favoritism" and because the "production companies do not have any basis to know which drivers to select." (Id. ¶ 34). According to McLaughlin, the "Producer's Choice" system "is a smokescreen and not a legitimate hiring process" because, in practice, hiring "is controlled not by the out-of-town producers but by a few select local individuals and the Union for the benefit of themselves and their friends, family, and political allies." (Id. ¶ 154). Those local individuals include the Officers of Local 249, along with Transportation Coordinators (individuals who coordinate trucking and transportation needs during movie and television productions) and Captains (Union members who oversee drivers

and other similar employees during productions). (Id. ¶¶ 3, 5, 32).

Beginning in 2011, McLaughlin stopped being hired as a movie driver. (Id. ¶ 42). Instead, the production companies hired "[s]ignificantly younger and inexperienced individuals" who often had "personal ties" to the Officers, Transportation Coordinators, and Captains (e.g., spouses, children, neighbors, and friends). (Id. ¶ 43). Over the next decade, McLaughlin continued to criticize the "Producer's Choice" system by writing letters and emails to various Union officials (id. ¶¶ 47, 51, 55, 78-79, 84, 109, 112, 121-24, 130-31) and filing a complaint with the National Labor Relations Board ("NLRB") (id. ¶ 110). He also filed charges of age discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC") (id. ¶¶ 62, 119, 137, 142), followed by lawsuits alleging the same (id. ¶¶ 66, 150).⁴ Meanwhile, McLaughlin continued to seek employment as a movie driver. (Id. ¶¶ 60-61, 63-65, 70-77, 82-83, 85-87, 105-08, 116, 126-29, 135-36, 138, 144-49, 151-52). But he was "blacklisted," and, by 2021, he had not been hired "for discriminatory and/or retaliatory reasons on over 50 productions." (Id. ¶¶ 68, 155).

4 See McLaughlin v. 20th Century Fox Film Corp., No. 2:15-cv-353 (W.D. Pa.) (filed 2015, settled 2017); McLaughlin v. Boss Prod., No. 2:15-cv-354 (W.D. Pa.) (filed 2015, settled 2016); McLaughlin v. Summit Ent. LLC, No. 2:15-cv-355 (W.D. Pa.) (filed 2015, settled 2016).

In June 2021, McLaughlin filed the present lawsuit against the Union, two Union Officers (Ceoffe and Rossi), five Transportation Coordinators and/or Captains (M. Scott, K. Scott, Roland, Kraus, and Conforti), and two production companies (CBS and TriStar). (ECF No. 1). He amended his Complaint in December 2021 and now raises twelve counts:

• Count I — LMRDA Retaliation (Against Union)

• Count II — RICO Racketeering Activity (Against All Defendants)

• Count III — RICO Conspiracy (Against All Defendants)

• Count IV — ADEA Retaliation (Against CBS)

• Count V — ADEA Retaliation (Against TriStar)

• Count VI — ADEA Age Discrimination (Against TriStar)

• Count VII — ADEA Retaliation (Against Union)

• Count VIII — ADEA Age Discrimination (Against Union)

• Count IX — PHRA Retaliation (Against Union and Roland)

• Count X — PHRA Age Discrimination (Against Union and Roland)

• Count XI — NLRA Breach of Duty of Fair Representation (Against Union)

• Count XII — PA Common Law Interference with Prospective Employment (Against Union, M. Scott, Roland, Kraus, and Conforti)

(ECF No. 41, ¶¶ 157-313). Thereafter, Defendants filed four Motions to Dismiss under Rule 12(b)(6). (ECF Nos. 48, 50, 52, 54).

II. STANDARD OF REVIEW

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A court must accept all well-pleaded factual allegations as true and view them in the light most favorable to a plaintiff. See Doe v. Princeton Univ., 30 F.4th 335, 340 (3d Cir. 2022); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although a court must accept the allegations in the complaint as true, it is "not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).

The "plausibility" standard required for a complaint to survive a motion to dismiss is not akin to a "probability" requirement but asks for more than sheer "possibility." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In other words, the complaint's factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Facial plausibility is present when a plaintiff pleads factual content that allows the court to draw the reasonable inference that a defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Even if the complaint's well-pleaded facts lead to a plausible inference, that inference alone will not entitle a plaintiff to relief. Id. at 682, 129 S.Ct. 1937. The complaint must support the inference with facts to plausibly justify that inferential leap. Id.

III. ANALYSIS

Defendants' Motions to Dismiss, taken together, challenge the entirety of McLaughlin's Amended Complaint. The Court will consider each count in turn.

A. Count I — LMRDA Retaliation (Against Union)

In Count I, McLaughlin alleges that he engaged in protected speech under the LMRDA and the Union retaliated against him by blacklisting him from movie driver positions. (ECF No. 41, ¶¶ 157-74). McLaughlin maintains that such retaliation constitutes improper disciplinary action and infringement of his right to free speech, in violation of the LMRDA. (Id. ¶ 167). See 29 U.S.C. § 411(a)(2) (affording union members "the right to meet and assemble freely with other members" and "to express any views, arguments, or opinions"); id. § 411(a)(5) (barring union members from being "fined, suspended, expelled, or otherwise disciplined" absent certain procedures); id. § 412 (providing a civil cause of action for "[a]ny person whose rights secured by the provisions of this subchapter have been infringed"). The Union argues that Count I should be dismissed because (1) discrimination within a job referral system does not constitute "discipline" under the LMRDA, (2) McLaughlin failed to bring the claim within the LMRDA's two-year statute of limitations, and (3) McLaughlin failed to exhaust intra-union administrative remedies. (ECF No. 51, pp. 6-11). None of those arguments succeed. The Court will deny the Union's Motion to Dismiss Count I.

1. LMRDA Background

Title I of the LMRDA "provides union members with an exhaustive 'Bill of Rights' enforceable in federal court." Local No. 82, Furniture & Piano Moving v. Crowley, 467 U.S. 526, 536, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984) (citing 29 U.S.C. §§ 411-415). Among those protected rights are the rights to freedom of speech and assembly:

Every member of any labor organization shall have the right to meet and assemble freely with other members; and to

express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings....

29 U.S.C. § 411(a)(2); see also United Steelworkers of Am. v. Sadlowski, 457 U.S. 102, 111, 102 S.Ct. 2339, 72 L.Ed.2d 707 (1982) (explaining that "the legislators intended [section 411(a)(2)] to restate a principal First Amendment value—the right to speak one's mind without fear of reprisal"). In addition, the LMRDA protects union members from improper disciplinary action by guaranteeing a right to due process:

No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.

29 U.S.C. § 411(a)(5); see also Knight v. Int'l Longshoremen's Ass'n, 457 F.3d 331, 340 (3d Cir. 2006) (stating that section 411(a)(5) incorporates "traditional concepts of due process of law"). These rights are enforceable by a private right of action—that is, a person may bring a civil action in federal court when his or her rights under Title I of the LMRDA "have been infringed." 29 U.S.C. § 412; see also Reed v. United Transp. Union, 488 U.S. 319, 321 n.1, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989); O'Rourke v. Crosley, 847 F. Supp. 1208, 1220 n.19 (D.N.J. 1994) ("Claims alleging violations of 29 U.S.C. § 411 in fact arise under 29 U.S.C. § 412.").

2. McLaughlin has stated a claim under the LMRDA for infringement of his right to free speech, but he has not stated a claim for improper discipline.

The Union first argues that McLaughlin's LMRDA claim should be dismissed because discrimination within a job referral system does not constitute "discipline" under the LMRDA. (ECF No. 51, pp. 6-7). For support, the Union points to the Supreme Court's decision in Breininger v. Sheet Metal Workers International Association Local Union No. 6, 493 U.S. 67, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989). That case involved a "union's alleged refusal to refer [a union member] to employment through the hiring hall as a result of his political opposition to the union's leadership." Id. at 70, 110 S.Ct. 424. The union member brought a claim under 29 U.S.C. § 411(a)(5), asserting that he was "otherwise disciplined" without due process. Breininger, 493 U.S. at 90, 110 S.Ct. 424. The Supreme Court, however, rejected that claim. It held that "by using the phrase 'otherwise discipline,' Congress did not intend to include all acts that deterred the exercise of rights protected under the LMRDA, but rather meant instead to denote only punishment authorized by the union as a collective entity to enforce its rules." Id. at 91, 110 S.Ct. 424. The Supreme Court noted that "a suspension of job referrals through the hiring hall could qualify as 'discipline' if it were imposed as a sentence on an individual by a union in order to punish a violation of union rules." Id. at 92 n.15, 110 S.Ct. 424. But there must be "some sort of established disciplinary process," and "ad hoc retaliation by individual union officers" is not sufficient. Id. at 91-92, 110 S.Ct. 424. The Supreme Court thus rejected the union member's section 411(a)(5) claim after finding that he "was not punished by any tribunal," but was rather "the victim of the

personal vendettas of two union officers." Id. at 94, 110 S.Ct. 424. Subsequent to Breininger, the United States Court of Appeals for the Third Circuit has twice held that a union's suspension of job referrals did not constitute "discipline" under the LMRDA. See Bullock v. Dressel, 435 F.3d 294, 298-99 (3d Cir. 2006); Brenner v. Local 514, United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1297-98 (3d Cir. 1991).

In response, McLaughlin draws the Court's attention to a particular paragraph in the Amended Complaint:

Under the circumstances here, the Union's interference with and/or suspension of Plaintiff's job referrals (blacklisting) as a Teamster Movie Driver constitutes infringement on his Free Speech rights and discipline. The purpose of the discipline is to enforce the Union's Producer's Choice system in which it seeks to insulate itself from any liability for movie driver selection even though it is involved in the selection process. The purpose is not ad hoc retaliation or motivated by personal vendettas, particularly given that it has been ongoing for many years during which time the Union has had different Officers, agents, stewards, and other representatives. The blacklisting has been authorized by the Union including that it occurs with the Union's knowledge, the repeated blacklisting complaints go unaddressed by or are outright rejected by Union Officers, and the Union and its Officers and agents maintain including through the agreements with production companies and its own referral procedures ratified by the Executive Board in the face of contradictory evidence that the out-of-town production companies alone select the drivers.

(ECF No. 41, ¶ 167; ECF No. 64, pp. 7-8). However, at the motion-to-dismiss stage, courts may disregard "a formulaic recitation of the elements of a claim or other legal conclusion." Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016) (cleaned up) (citing Iqbal, 556 U.S. at 681, 129 S.Ct. 1937). "[T]he clearest indication that an allegation is conclusory and unworthy of weight in analyzing the sufficiency of a complaint is that it embodies a legal point." Id. at 790. McLaughlin clearly drafted this paragraph of the Amended Complaint to avoid Breininger, Brenner, and Bullock sounding death knells for his improper discipline claim. He states that the "purpose of the discipline is to enforce" Union rules, not "ad hoc retaliation" or "personal vendettas." (ECF No. 41, ¶ 167). He further states that the discipline has been "authorized by the Union." (Id.). This language is lifted directly from those cases, meaning that McLaughlin is baldly reciting the factors for something to constitute "discipline" under the LMRDA. In doing so, McLaughlin is making legal arguments, not allegations of fact. This finding is bolstered by the location of the paragraph in the Amended Complaint, as it appears underneath "Count I" (where McLaughlin sets forth the elements of his LMRDA claim), rather than underneath "Statement of Facts." (See id. at 5, 31). The Court is not required to accept as true McLaughlin's legal conclusions, and thus it disregards this paragraph of the Amended Complaint. See Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (stating that courts are "not bound to accept as true a legal conclusion couched as a factual allegation").

Considering only McLaughlin's well-pleaded factual allegations, and applying Breininger, Brenner, and Bullock, the Court concludes that McLaughlin has failed to state a claim under 29 U.S.C. § 411(a)(5) because he does not "allege acts by the [U]nion amounting to 'discipline' within the meaning of the statute." Breininger, 493 U.S. at 94, 110 S.Ct. 424. First,

there is no allegation that the Union blacklisted McLaughlin in order to "enforce its rules" or to "to punish a violation of [its] rules." Id. at 91, 92, 110 S.Ct. 424 n.15. The Amended Complaint alleges that the Union operates under a "Producer's Choice" system with respect to referrals for movie driver positions. To the extent that "Producer's Choice" constitutes Union "rules," the act of blacklisting a member would certainly not "enforce" such rules. To the contrary, enforcing the rules would require the Union to send the resumes and applications of all interested individuals, including McLaughlin—the opposite of blacklisting. Nor can it be said that blacklisting McLaughlin "punish[es]" him for "violat[ing]" the rules because he cannot violate a system that imposes no obligations or restrictions on individual members. Rather, the obligation rests with the Union to refer all interested people (and McLaughlin alleges that the Union violated that obligation). The Amended Complaint, therefore, does not allege that the Union's purpose in blacklisting McLaughlin was to enforce or punish a violation of the "Producer's Choice" system.⁵ Second, there is no allegation that the blacklisting occurred through "some sort of established disciplinary process." Id. at 91, 110 S.Ct. 424. McLaughlin "was not punished by any tribunal, nor was he the subject of any proceedings convened by [the Union]." Id. at 94, 110 S.Ct. 424. For these reasons, the Court finds that McLaughlin has not stated a claim for improper discipline under the LMRDA. See 29 U.S.C. § 411(a)(5).

5 The Amended Complaint is not completely devoid of allegations regarding the purpose of the blacklisting. Such reasons include retaliating against McLaughlin for his speech against the "Producer's Choice" system (the non-disciplinary component of his LMRDA claim); discriminating against McLaughlin because of his age; retaliating against McLaughlin for filing EEOC complaints; and engaging in nepotism and favoritism. None of these purposes involve the enforcement of Union rules.

But that finding does not warrant dismissal of Count I, as the Union contends. Separate and apart from his improper discipline claim, McLaughlin alleges that the Union violated the LMRDA by infringing his right to free speech. See 29 U.S.C. §§ 411(a)(2), 412. Under the LMRDA, an infringement claim can proceed independent of an improper discipline claim. See Brenner, 927 F.2d at 1298 ("A litigant may successfully seek redress under section [412] for an infringement of these LMRDA rights even if no unlawful 'discipline' is shown." (citation omitted)); see also Breininger, 493 U.S. at 94 n.18, 110 S.Ct. 424 (after rejecting union member's improper discipline claim, declining to consider whether "certain of his rights secured by the LMRDA were 'infringed' by [the union's] conduct"). Infringement may occur, for example, where a union retaliates against a member for exercising LMRDA-protected rights, including the right to free speech. See O'Rourke, 847 F. Supp. at 1220 ("The Third Circuit has held that Section 411 guarantees union members the right to participate in union affairs without fear of retaliation." (citing Brenner, 927 F.2d at 1298)). To state a claim of retaliation under the LMRDA, a union member must show that "(1) he engaged in protected expression; (2) he was subjected to an adverse action; and (3) the retaliation was a direct result of the protected expression." McCarthy v. Int'l Ass'n of Machinists & Aerospace Workers, 2021 WL 5766569, at *4 (3d Cir. Dec. 6, 2021).

The Court finds that McLaughlin has stated a plausible LMRDA claim for infringement of his right to free speech. First, McLaughlin engaged in protected expression by publicly criticizing the "Producer's Choice" system and advocating for

the adoption of a seniority-based system. (ECF No. 41, ¶¶ 33-35, 46, 50, 55). In addition, McLaughlin spoke out about members' issues with their pay and dues and, later, about his own blacklisting from movie driver positions. (Id. ¶¶ 39, 49, 78-79, 84, 112, 121-25, 130-31). Second, McLaughlin was subjected to adverse action in the form of blacklisting and his failure to be hired on over 50 productions. (Id. ¶¶ 153, 155). Third, a trier of fact could infer that McLaughlin's blacklisting was causally connected to his protected speech due to a "pattern of antagonism." McCarthy, 2021 WL 5766569, at *9 (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). Specifically, McLaughlin alleges that the blacklisting began in 2011, shortly after he began criticizing "Producer's Choice" in late 2010. (ECF No. 41, ¶¶ 33, 42). His speech continued over the next decade, and so did the alleged blacklisting. The Court, therefore, finds that McLaughlin's allegations are sufficient to state a claim for infringement of his right to free speech under the LMRDA. See O'Rourke, 847 F. Supp. at 1220 ("[A] union's manipulation of hiring hall procedures is discrimination against a member for exercising his Section 411 rights states a claim, even where there is no allegation of unlawful discipline.").

3. McLaughlin's LMRDA claim is not barred by the applicable statute of limitations, but it is limited in scope.

The Union next argues that Count I should be dismissed because it is time-barred. Title I of the LMRDA (29 U.S.C. §§ 411-415) does not expressly set forth a statute of limitations. See Reed, 488 U.S. at 321, 109 S.Ct. 621. If Congress "fails to supply an express statute of limitations when it creates a federal cause of action," courts must generally "apply the most closely analogous statute of limitations under state law." Id. at 323, 109 S.Ct. 621 (quoting DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)). The Supreme Court has explained that "actions under the LMRDA are closely analogous to personal injury actions." Wooddell v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 98, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991) (citing Reed, 488 U.S. at 326-27, 109 S.Ct. 621). It has thus held that claims brought under 29 U.S.C. § 411(a)(2) are "governed by state general or residual personal injury statutes." Reed, 488 U.S. at 323, 109 S.Ct. 621. In Pennsylvania,⁶ a personal injury claim is subject to a two-year statute of limitations. 42 Pa. C.S. § 5524(2). McLaughlin's LMRDA claim, therefore, has a statute of limitations of two years. See, e.g., Doyle v. United Auto. Aerospace & Agric. Implement Workers of Am. Local 1069, 761 F. App'x 136, 138 n.3 (3d Cir. 2019).

6 In general, courts "borrow a limitations period applicable to the forum state," so long as the litigation does not implicate "a statute of limitations of a state other than the forum state." Gluck v. Unisys Corp., 960 F.2d 1168, 1179-80 (3d Cir. 1992). Here, Pennsylvania is "both the forum State and the State in which all operative events occurred." UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 705 n.8, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). In addition, neither McLaughlin nor the Union "has suggested that the limitations provision of another State is relevant." Id. The Court will, therefore, borrow Pennsylvania's statute of limitations.

The parties agree with that conclusion, but they dispute whether McLaughlin properly brought his claim within the two-year period. The Union argues that the statute of limitations for McLaughlin's LMRDA claim began to run as early as 2011, when the alleged retaliation first occurred

(i.e., when the Union started blacklisting him). (ECF No. 51, p. 8). As such, it contends that the claim has been time-barred since 2013. (Id.). McLaughlin counters that he pleaded his LMRDA claim as a "continuing violation," and "many acts evidencing the continuing practice ... fall within the limitations period," such as his blacklisting from various productions in 2019, 2020, and 2021. (ECF No. 64, pp. 10-11; ECF No. 41, ¶ 169).

There appears to be a dearth of controlling authority with respect to both parties' positions—that is, with respect to when the statute of limitations begins to run for an LMRDA claim and whether such a claim is subject to the continuing violation doctrine. The Court must, therefore, rely on non-LMRDA cases to resolve these issues. A statute of limitations generally begins to run when a cause of action accrues. See William A. Graham Co. v. Haughey, 646 F.3d 138, 147 (3d Cir. 2011); see also 1 Moore's Federal Practice — Civil § 3.05[2][a][i] (2022 update). "[T]he accrual date for federal claims is governed by federal law, irrespective of the source of the limitations period." Miller v. Fortis Benefits Ins. Co., 475 F.3d 516, 520 (3d Cir. 2007) (citing Romero v. Allstate Corp., 404 F.3d 212, 221 (3d Cir. 2005)). The "standard rule" under federal law is that a claim accrues "when the plaintiff has a complete and present cause of action." Gabelli v. SEC, 568 U.S. 442, 448, 133 S.Ct. 1216, 185 L.Ed.2d 297 (2013) (citation omitted); see also William, 646 F.3d at 146-47. It is often the case, then, that a claim accrues—and the statute of limitations begins to run—when a violation or injury actually occurs. This is sometimes referred to as the "occurrence rule." See G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 613 (3d Cir. 2015).

But the running of a statute of limitations is not always co-extensive with the date of accrual. See William, 646 F.3d at 149 ("[A]ccrual is defined in terms of the objective existence of a viable cause of action, not in terms of whether the limitations clock has started. It happens to be the case that the limitations period generally commences once a claim exists, but a running clock is not the sine qua non of accrual."). Rather, there are "various statutory and judge-made rules that operate to toll the running of the limitations period." Id. at 147. "Time that passes while a statute is tolled does not count against the limitations period." Id. at 147-48.

One such judge-made rule is the "discovery rule." Under that rule, the statute of limitations does not begin to run until "the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim." Romero, 404 F.3d at 222; see also William, 646 F.3d at 150 (holding that "the discovery rule ... operate[s] to toll the running of the limitations period after a cause of action has accrued"). The Third Circuit has instructed that, "in the absence of any contrary directive from Congress, courts [should] employ the federal 'discovery rule'" to determine when a statute of limitations begins to run for a federal claim. Romero, 404 F.3d at 222; see also G.L., 802 F.3d at 613 (explaining that application of the discovery rule is the "default"); cf. TRW Inc. v. Andrews, 534 U.S. 19, 27, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (stating that "lower federal courts 'generally apply a discovery accrual rule when a statute is silent on the issue," but noting that the Supreme Court has "not adopted that position").

Another judge-made rule that effectively tolls the running of a statute of limitations is the "continuing violation doctrine." This doctrine "takes a series of related and assertedly wrongful acts, decisions,

or failures to act ... occurring both within and outside of the limitations period prior to suit, and aggregates them into a single unit for limitations purposes." Kyle Graham, The Continuing Violations Doctrine, 43 Gonz. L. Rev. 271, 280 (2008). "[W]hen a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period." Brenner, 927 F.2d at 1295. In other words, under the continuing violation doctrine, "the statute of limitations begins to run on the date of the last occurrence of [a wrongful act], rather than the first." Miller v. Beneficial Mgmt. Corp., 977 F.2d 834, 842 (3d Cir. 1992). This doctrine, however, applies only to acts that are "not individually actionable," O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006), such as "a series of separate acts that collectively constitute" a "hostile work environment claim," Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Mandel v. M&Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013). It does not apply to "discrete acts" that are "individually actionable," such as "termination, failure to promote, denial of transfer, refusal to hire, wrongful suspension, wrongful discipline, denial of training, [or] wrongful accusation." O'Connor, 440 F.3d at 127 (3d Cir. 2006) (citing Morgan, 536 U.S. at 112-14, 122 S.Ct. 2061). "[T]ime-barred claims cannot be resurrected by being aggregated and labeled continuing violations." See id. at 129.

After careful consideration, the Court concludes that the continuing violation doctrine is inapplicable to McLaughlin's LMRDA claim. McLaughlin relies primarily on the Third Circuit's decision in Brenner, which—like Count XI in the present case—involved a claim that a union's "failure to refer union members fairly from the hiring hall" over a period of seven years "constitute[d] a breach of the union's duty of fair representation" under the NLRA. 927 F.2d at 1288, 1296. The Third Circuit held that the union members had presented sufficient evidence "of a continuing course of conduct constituting a violation of the union's duty of fair representation" to warrant application of the continuing violation doctrine. Id. at 1296. McLaughlin contends that, given the similar underlying facts, the continuing violation doctrine should apply as equally to his LMRDA claim as it did to the NLRA claim in Brenner. (ECF No. 64, pp. 10-11). That argument falls short, however, as it entirely disregards the Supreme Court's decision in Morgan and the Third Circuit's decision in O'Connor—both of which post-date and arguably abrogate Brenner. Those later-in-time decisions are controlling in this case even though neither involved the LMRDA. See O'Connor, 440 F.3d at 128 ("[I]n whatever statutory context the distinction [between 'continuing violations' and 'discrete acts'] may arise, Morgan will control."). Those decisions make clear that "individually actionable allegations cannot be aggregated." Id. at 127. The Court finds that McLaughlin has pleaded a series of discrete acts that are individually actionable under the LMRDA. As explained above (see supra III.A.2), each instance of the Union failing to refer McLaughlin for a movie driver position in retaliation for his protected speech states a claim of infringement. As such, McLaughlin cannot rely on the continuing violation doctrine.

But that does not necessarily mean that McLaughlin's LMRDA claim is time-barred. Given that the LMRDA is silent on the issue of when the statute of limitations begins to run, the Court must apply the discovery rule, as instructed by the Third Circuit. See G.L., 802 F.3d at

613; Romero, 404 F.3d at 222. Under that rule, the two-year statute of limitations began to run when McLaughlin knew or should have known of the acts constituting the alleged violation. Accordingly, McLaughlin's LMRDA claim is timely to the extent that it incorporates blacklisting that occurred on or after June 28, 2019—two years prior to the filing of the present lawsuit on June 28, 2021. There are a number of timely allegations of blacklisting in the Amended Complaint. (See ECF No. 41, ¶¶ 126-28, 135-36, 138, 144-45, 147, 149, 151-52).⁷ The Court, therefore, holds that McLaughlin's LMRDA claim is not time-barred.

7 To be clear, McLaughlin cannot recover for any allegations of blacklisting that occurred prior to June 28, 2019, as those acts fall outside the statute of limitations. (See ECF No. 41, ¶¶ 60, 63-65, 70-74, 83, 85-86, 105-06, 111, 116).

4. McLaughlin is excused from exhausting internal union remedies.

Finally, the Union asserts that Count I should be dismissed because McLaughlin failed to exhaust intra-union administrative remedies (also known as internal union remedies). (ECF No. 51, pp. 9-11). It points to Article XIX, Section 13(a) of the International Brotherhood of Teamsters Constitution ("Union Constitution"), which provides that every member "who claims to be aggrieved" must "exhaust all remedies provided for in this Constitution and by the International Union before resorting to any court, tribunal, or agency." (ECF No. 50-1, pp. 154-55).⁸ If a member seeks charges against another member, including a Local Union Officer, he or she must file charges "in writing in duplicate with the Secretary-Treasurer of the Local Union, Joint Council, or General Executive Board which is to try the case." (Id. at 136-37). Thereafter, "the Local Union Executive Board, Joint Council Executive Board, or General Executive Board with which the charges have been filed shall review the charges and dismiss them if the charges have not been timely filed or if the act complained of does not constitute a violation subject to discipline." (Id. at 137). Alternatively, those bodies may refer the charges "for trial on the merits," and "the trial body shall render judgment and impose disciplinary actions," where warranted. (Id. at 137-38). Any such judgment may then be appealed to the Joint Council Executive Board or the General Executive Board. (Id. at 140-42). If a member seeks charges against the Local Union itself, the entire above-described process is elevated to the Joint Council Executive Board and/or the General Executive Board. (Id. at 143-45). Under those circumstances, "[no] member of the charged Local Union [may] be a member of the hearing panel." (Id. at 144).

8 Generally, "a district court ruling on a motion to dismiss [under Rule 12(b)(6)] may not consider matters extraneous to the pleadings." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (Alito, J.). However, there is an exception to that general rule for documents that are "integral to or explicitly relied upon in the complaint," id. at 1426 (citation omitted), including, for example, "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document," Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may consider the Union Constitution under this exception because it is undisputedly authentic, and it is integral to McLaughlin's LMRDA claim against the Union (as it may bar such a claim from the outset).

McLaughlin counters that "it would be futile to resort to any internal remedies." (ECF No. 41, ¶ 170). He maintains that "[t]he internal appeals structure is controlled by Officers to whom [he] is opposed"

and that "the Union has consistently taken a position opposed to [his] regarding the Producer's Choice system and his continued backlisting." (Id. ¶¶ 170-71); (ECF No. 64, pp. 11-12). McLaughlin thus argues that "[t]here is no purpose in requiring an adjudication by the Union." (ECF No. 41, ¶ 171).

With respect to exhaustion of internal union remedies, the LMRDA provides:

No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding.... Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof....

29 U.S.C. § 411(a)(4). The Supreme Court and the Third Circuit have clarified that section 411(a)(4)'s proviso is "permissive," meaning that "whether or not a plaintiff will be required to utilize his internal union appeals is a matter within the discretion of the trial judge." Semancik v. United Mine Workers, 466 F.2d 144, 150 (3d Cir. 1972); see also NLRB v. Indus. Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968) ("We conclude that 'may be required' is not a grant of authority to unions more firmly to police their members but a statement of policy that the public tribunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union."); Mallick v. Int'l Bhd. of Elec. Workers, 644 F.2d 228, 237 (3d Cir. 1981) ("[T]he proviso confers upon courts discretion to require exhaustion before exercising their jurisdiction, but [] it extends no such similar power to unions."). As such, a plaintiff's failure to exhaust intra-union remedies is "not a jurisdictional bar." O'Rourke, 847 F. Supp. at 1218. Rather, "the exhaustion issue is an affirmative defense in which the defendant union bears the burden of persuasion." Id.

In deciding whether to require or excuse exhaustion, courts may consider several factors, including: (1) whether the plaintiff "will suffer irreparable harm in their jobs or in the exercise of rights guaranteed to them under the LMRDA"; (2) whether "the internal appeals structure is inadequate or illusory or is controlled by those to whom the plaintiff is opposed"; and (3) whether "the union has consistently taken a position opposed to that of the plaintiff and makes no indication that it will alter its views." Semancik, 466 F.2d at 150-51 (internal citations omitted). In addition, "courts are particularly solicitous when the right of free speech is at stake." Id. at 151. Ultimately, the court must "balance all of these factors against the expressed Congressional desire in favor of union self-government." Id. at 151 n.6.

Upon weighing the relevant factors, the Court declines to require exhaustion of internal union remedies with respect to McLaughlin's LMRDA claim. Numerous allegations in the Amended Complaint make clear that McLaughlin has complained to the Union for years about his purported blacklisting. (ECF No. 41, ¶¶ 46, 55, 78, 84, 109, 123, 131). Those complaints were made not just to Local 249 officials, but also to International Brotherhood of Teamsters officials, such as the General President (James Hoffa). Yet neither Local 249 nor the Teamsters ever referred McLaughlin's charges for a trial on the merits. And on

at least two instances, the Union expressly rejected McLaughlin's complaints, stating that "there was no basis for the union to file charges against anyone." (Id. ¶¶ 80, 118). It is thus arguable that McLaughlin did try to exhaust, but the Union itself prevented him from fully completing that process. Moreover, even if McLaughlin did not try to exhaust (perhaps because he failed to utilize proper internal procedures), it is nevertheless apparent that exhaustion would be futile. The above-described allegations, taken as true, reveal that the Union's internal hearing process —be it at the local or national level—is "controlled by those to whom [McLaughlin] is opposed." Semancik, 466 F.2d at 151. In addition, the Union has "consistently taken a position opposed to that of [McLaughlin]" and there is "no indication that it will alter its views." Id. For those reasons, the Court finds that it would be futile to require McLaughlin to exhaust internal union remedies. The Court further finds that such futility, along with the fact that free speech rights are at stake, outweigh the Union's interest in self-governance. See id. at 151 & n.6. As such, the Court holds that McLaughlin is excused from exhausting internal union remedies with respect to his LMRDA claim.

5. Conclusion—Count I

The Court will deny the Union's Motion to Dismiss Count I. Though McLaughlin has not stated a claim for improper discipline under the LMRDA, he has stated a claim for infringement of his right to free speech. That claim is limited, but not barred, by the applicable statute of limitations, and McLaughlin is excused from exhausting internal union remedies. Count I survives dismissal.

B. Counts II and III — RICO Racketeering Activity and Conspiracy (Against All Defendants)

In Counts II and III, McLaughlin alleges that Defendants engaged, or conspired to engage, in a pattern of racketeering activity, in violation of RICO. (ECF No. 41, ¶¶ 157-95). See 18 U.S.C. § 1962(c) (prohibiting any person from participating "in the conduct of [an] enterprise's affairs through a pattern of racketeering activity"); id. § 1962(d) (prohibiting any person from "conspir[ing] to violate" section 1962(a), (b), or (c)); id. § 1964(c) (providing a civil cause of action for any person "injured in his business or property by reason of a violation of section 1962"). Specifically, he asserts that Defendants committed predicate acts of mail and wire fraud by using interstate wire and mail communications to "willfully and knowingly conduct[] the phony Producer's Choice System in the selection, hiring, employment, and exclusion" of movie drivers "for the unlawful purpose of intentionally defrauding [McLaughlin] and others like him." (ECF No. 45, pp. 2, 9).⁹

9 The Court "may consider the RICO case statement in assessing whether [McLaughlin's] RICO claims should be dismissed." Glessner v. Kenny, 952 F.2d 702, 712 n.9 (3d Cir. 1991); see also Mega Concrete, Inc. v. Smith, 2011 WL 1103831, at *3 (E.D. Pa. Mar. 24, 2011) ("For the purposes of a motion to dismiss, ... the RICO Case Statement is a pleading that can be considered part of the operative complaint.").

Defendants raise at least three arguments in support of dismissal. First, they argue that McLaughlin failed to plead his RICO claims, which are predicated on fraud, with sufficient particularity. (ECF No. 49, pp. 4-5; ECF No. 51, p. 11; ECF No. 55, p. 16). Second, they contend that the RICO claims are time-barred. (ECF No. 49, pp. 6-7; ECF No. 51, pp. 12-13; ECF No. 55, pp. 17-18). Third, Defendants assert that McLaughlin's pleadings are insufficient

with respect to several elements of his substantive RICO claim. (ECF No. 53, pp. 17-21; ECF No. 55, pp. 14-17). The third argument proves successful. The Court will grant Defendants' Motions to Dismiss Counts II and III.

1. RICO Background

RICO "imposes criminal and civil liability upon those who engage in certain 'prohibited activities.'" H. J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 232, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). See generally 18 U.S.C. §§ 1961-1968. Section 1962(c) makes it unlawful for "any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962(c). Section 1962(d) makes it unlawful for "any person to conspire to violate" section 1962(c). Id. § 1962(d). Any person "injured in his business or property by reason of a violation of section 1962" may bring a civil lawsuit and seek treble damages. Id. § 1964(c).

To state a claim under section 1962(c), a plaintiff must allege "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 362 (3d Cir. 2010) (quoting Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004)); see also Care One Mgmt. LLC v. United Healthcare Workers E., 43 F.4th 126, 135 (3d Cir. 2022) ("To establish liability under § 1962(c), a plaintiff must show that defendant(s) acted as an 'enterprise' and conducted a 'pattern of racketeering activity' through certain criminal predicate acts."). The statute defines an "enterprise" as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). It further defines a "pattern of racketeering activity" as requiring "at least two acts of racketeering activity" during a ten-year period. Id. § 1961(5). "Racketeering activity," in turn, includes predicate acts of "mail fraud" and "wire fraud." Id. § 1961(1)(B); see also id. § 1341 (mail fraud); id. § 1343 (wire fraud).

To state a claim under section 1962(d), a plaintiff must allege "(1) agreement to commit the predicate acts ..., and (2) knowledge that those acts were part of a pattern of racketeering activity conducted in such a way as to violate section 1962(a), (b), or (c)." Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989) (citation omitted). "RICO conspiracy is not a mere conspiracy to commit the underlying predicate acts. It is a conspiracy to violate RICO—that is, to conduct or participate in the activities of a corrupt enterprise." Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 539 (3d Cir. 2012). A plaintiff must thus plead facts showing that the object of the RICO conspiracy was to "assist the enterprise's involvement in corrupt endeavors." United States v. Pungitore, 910 F.2d 1084, 1135 (3d Cir. 1990) (citation omitted).

2. McLaughlin failed to sufficiently plead the "racketeering activity" of mail and wire fraud.

Defendants maintain that McLaughlin's pleadings are insufficient with respect to several elements of his section 1962(c) claim. First, they argue that he has failed to state a claim with respect to the predicate acts of mail and wire fraud (i.e., "racketeering activity"). (ECF No. 55, pp. 15-17). Second, Defendants argue that McLaughlin has not alleged a "pattern" of racketeering activity. (ECF No. 55, pp. 14-15). Third, they argue that McLaughlin has not pleaded a cognizable "enterprise." (ECF No. 53, pp. 18-19). The Court focuses upon Defendants' first argument. To state a claim under section 1962(c), a plaintiff must allege not only "the elements enumerated within RICO," but also "all elements of the predicate act crimes." Lester v. Percudani, 556 F. Supp. 2d 473, 481 (M.D. Pa. 2008). McLaughlin identifies mail and wire fraud as the predicate acts underlying his substantive RICO claim. (ECF No. 41, ¶ 185). "The federal mail and wire fraud statutes prohibit the use of the mail or interstate wires for purposes of carrying out any scheme or artifice to defraud." Lum, 361 F.3d at 223 (citing 18 U.S.C. §§ 1341, 1343). A claim of mail or wire fraud requires "(1) a scheme or artifice to defraud for the purpose of obtaining money or property, (2) participation by the defendant with specific intent to defraud, and (3) use of the mails or wire transmissions in furtherance of the scheme." Nat'l Sec. Sys. v. Iola, 700 F.3d 65, 105 (3d Cir. 2012).

With respect to the first element, "the object of the alleged scheme or artifice to defraud must be a traditionally recognized property right." United States v. Al Hedaithy, 392 F.3d 580, 590 (3d Cir. 2004) (stating that this rule "is embodied in a trilogy of Supreme Court cases," including McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), and Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000)). Moreover, that traditionally recognized property right must belong to the victim. See Cleveland, 531 U.S. at 15, 121 S.Ct. 365 ("[F]or purposes of the mail fraud statute, the thing obtained must be property in the hands of the victim."). In other words, the mail and wire fraud statutes require a scheme to defraud a victim of money or property, not just a scheme that results in the malefactors obtaining money or property from a different source. See United States v. Henry, 29 F.3d 112, 116 (3d Cir. 1994) (citing McNally, 483 U.S. at 360, 107 S.Ct. 2875).

The Court holds that McLaughlin has failed to allege that Defendants engaged in a scheme to defraud him of money or property. The Amended Complaint asserts that, as a result of Defendants' participation in "the phony Producer's Choice scheme," McLaughlin "has been the victim of numerous failures-to-hire." (ECF No. 41, ¶ 190). The RICO Case Statement further states that McLaughlin has suffered "significant" "income loss," while Defendants have "received substantial benefits," including the ability to fill "valuable positions with nepotism and favoritism hires." (ECF No. 45, pp. 31, 37). None of those allegations satisfy the fraud statutes' requirement of a scheme to defraud a victim of money or property. McLaughlin did not suffer any out-of-pocket monetary loss because of the alleged scheme. He states that he suffered income loss, but the income to which he refers was not paid to McLaughlin, nor was it even owing to him. Rather, the income was merely prospective—money that McLaughlin could have earned as a movie driver had he been hired. To the extent that McLaughlin was defrauded of something, then, it was the opportunity to earn money, not his own money. The question thus becomes whether McLaughlin had a traditionally recognized property interest in that opportunity. The answer, based on the facts alleged, is no.

"[T]o determine whether a particular interest is property for purposes of the fraud statutes," courts must "look to whether the law traditionally has recognized and enforced it as a property right." Henry, 29 F.3d at 115. The Court finds that the law has not traditionally recognized and enforced an abstract interest in future employment as a property right.

"Core to the existence of an individual property interest is the requirement that the plaintiff have 'a legitimate claim of entitlement to' the interest at issue that stems from 'an independent source such as state law' or 'rules or understandings that secure certain benefits.'" McKinney v. Univ. of Pittsburgh, 915 F.3d 956, 960 (3d Cir. 2019) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)); see also Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) ("A person's interest is a 'property' interest ... if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit...."). "[I]t is not sufficient that a plaintiff has an 'abstract need or desire' or a 'unilateral expectation' of a particular benefit." Id. (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701).

Here, McLaughlin has not pleaded facts showing a legitimate claim of entitlement to future employment as a movie driver. He does not argue that state law afforded him such an entitlement. Nor does he point to any interactions with the Union or the production companies giving rise to "mutually explicit understandings" that he would be hired.¹⁰ Perry, 408 U.S. at 601, 92 S.Ct. 2694. Instead, he simply asserts that he had the experience and qualifications for such positions. But the Amended Complaint makes it quite clear that the Union and production companies use a "Producer's Choice" system for referrals and hiring, not a seniority system. (ECF No. 41, ¶¶ 37, 101-02). Thus, McLaughlin's qualifications alone did not entitle him to employment as a movie driver. That remains true even if "Producer's Choice" is "phony," "a sham," or "a smokescreen," as McLaughlin alleges, meaning that hiring "is controlled not by the out-of-town producers but by a few select local individuals and the Union." (Id. ¶¶ 32, 97, 154). Under those circumstances, McLaughlin would still need to be hired by the local individuals, who apparently only selected "friends, family, and political allies," not "experienced drivers ... like McLaughlin"—again rendering his qualifications immaterial. (Id. ¶ 154). The Court, therefore, finds that McLaughlin has not alleged a "legitimate claim of entitlement" to employment as a movie driver, but rather only "an abstract need or desire for it" or "a unilateral expectation of it." Roth, 408 U.S. at 577, 92 S.Ct. 2701. The opportunity to work as a movie driver may have been "valuable" to McLaughlin, "but it is not a traditionally recognized, enforceable property right." Henry, 29 F.3d at 114.

10 There are only two instances where McLaughlin alleges that a production company and/or its agent requested that McLaughlin be hired. (ECF No. 41, ¶¶ 60-61, 71-74). But those events occurred outside of the applicable four-year statute of limitations, so they must be discounted. See Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) (holding that civil RICO claims are subject to a four-year statute of limitations); Forbes v. Eagleson, 228 F.3d 471, 484 (3d Cir. 2000) (adopting an "injury discovery rule" for civil RICO claims, meaning that the statute of limitations begins to run "when the plaintiffs knew or should have known of their injury").

In short, McLaughlin has failed to allege that Defendants engaged in a scheme to defraud him of either money or property—an important element of mail and wire fraud. Moreover, it is irrelevant for purposes of the fraud statutes that Defendants allegedly received substantial benefits from their scheme because those benefits did not come from McLaughlin himself. See Henry, 29 F.3d at 116 (citing McNally, 483 U.S. at 360, 107 S.Ct. 2875). For those reasons, the Court concludes that McLaughlin failed to state a claim with respect to the predicate acts of mail and wire fraud. His substantive RICO

claim, therefore, fails with respect to the "racketeering activity" element. The Court will dismiss Count II.

3. The RICO conspiracy claim must be dismissed because McLaughlin did not plead a substantive RICO claim.

As explained above, the Court has concluded that McLaughlin failed to plead a substantive RICO claim under section 1962(c). This is fatal to the RICO conspiracy claim under section 1962(d). See Ins. Brokerage, 618 F.3d at 373 ("[A] § 1962(d) claim must be dismissed if the complaint does not adequately allege 'an endeavor which, if completed, would satisfy all of the elements of a substantive [RICO] offense.'" (quoting Salinas v. United States, 522 U.S. 52, 65, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997))); Lum, 361 F.3d at 227 n.5 (affirming dismissal of a RICO conspiracy claim where "plaintiffs failed to adequately plead a substantive RICO claim"); Rehkop v. Berwick Healthcare Corp., 95 F.3d 285, 290 (3d Cir. 1996) ("[I]n order to state a violation of section 1962(d) for conspiracy to violate subsection (a), (b), or (c), the plaintiff must establish that the defendants violated (or were going to violate) one of those subsections."); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1191 (3d Cir. 1993) ("Any claim under section 1962(d) based on a conspiracy to violate the other subsections of section 1962 necessarily must fail if the substantive claims are themselves deficient."). The Court will dismiss Count III.

4. Conclusion—Counts II and III

The Court will grant Defendants' Motions to Dismiss Counts II and III. McLaughlin's substantive RICO claim fails because he did not sufficiently plead the "racketeering activity" of mail and wire fraud. Due to the deficiency of that substantive claim, his RICO conspiracy claim fails, too. Counts II and III will be dismissed.¹¹

11 The Court will not address Defendants' remaining arguments concerning the particularity of McLaughlin's pleadings of fraud, the statute of limitations, or the sufficiency of McLaughlin's allegations with respect to other elements of the substantive RICO claim (e.g., "enterprise" and "pattern").

C. Counts IV, V, VI, VII, VIII, IX, and X — ADEA Retaliation (Against CBS, TriStar, and Union) and Age Discrimination (Against TriStar and Union); PHRA Retaliation and Age Discrimination (Against Union and Roland)

Counts IV, V, VI, VII, VIII, IX, and X allege age discrimination and retaliation in violation of the ADEA and the PHRA.¹² (ECF No. 41, ¶¶ 204-87). See 29 U.S.C. § 623(a)(1) (prohibiting age discrimination by employers); 43 P.S. § 955(a) (same); 29 U.S.C. § 623(c) (prohibiting age discrimination by labor organizations); 43 P.S. § 955(c) (same); 29 U.S.C. § 623(d) (prohibiting retaliation by employers and labor organizations); 43 P.S. § 955(d) (same); see also 29 U.S.C. § 626(c)(1) (providing civil cause of action for violations of ADEA); 43 P.S. § 962(c)(1) (same for violations of PHRA). The Court will consider each count below, along with Defendants' respective arguments. The Court will grant Defendants' Motions to Dismiss with respect to Counts IV, V, and X (as against Roland) and deny them with respect to Counts VI, VII, VIII, IX, and X (as against the Union). 1. ADEA and PHRA Background

12 "The same legal standard applies to both the ADEA and the PHRA and therefore it is proper to address them collectively." Kautz v. Met-Pro Corp., 412 F.3d 463, 466 n.1 (3d Cir. 2005).

The ADEA and the PHRA contain "analogous provision[s]" with respect to age discrimination and retaliation. Simpson v. Kay Jewelers, 142 F.3d 639, 644 n.5 (3d Cir. 1998). First, the statutes bar age discrimination by employers. The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Similarly, the PHRA makes it unlawful for any employer, "because of the ... age ... of any individual or independent contractor, to refuse to hire or employ or contract with, ... or to otherwise discriminate against such individual or independent contractor with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract, if the individual or independent contractor is the best able and most competent to perform the services required." 43 P.S. § 955(a). Second, the statutes prohibit age discrimination by labor organizations. The ADEA makes it unlawful for a labor organization to (1) "discriminate against[] any individual because of his age," (2) "classify or fail or refuse to refer for employment any individual[] in any way which would deprive or tend to deprive any individual of employment opportunities ... because of such individual's age," or (3) "cause or attempt to cause an employer to discriminate against an individual" because of his age. 29 U.S.C. § 623(c). The PHRA, in turn, makes it unlawful for a labor organization, "because of the ... age ... of any individual ... to discriminate against such individuals with respect to hire, tenure, terms, conditions or privileges of employment or any other matter, directly or indirectly, related to employment." 43 P.S. § 955(c). Third, the statutes prohibit retaliation by employers and labor organizations. The ADEA makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment, ... or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by [section 623], or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under [the ADEA]." 29 U.S.C. § 623(d). Likewise, the PHRA makes it unlawful for any person, employer, or labor organization "to discriminate in any manner against any individual because such individual has opposed any practice forbidden by [the PHRA], or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under [the PHRA]." 43 P.S. § 955(d).

Age discrimination claims under the ADEA and PHRA are subject to the burden-shifting framework of McDonnell Douglas, at least where the plaintiff relies on circumstantial evidence of discrimination. See Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015); Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 512 (3d Cir. 2004); Simpson, 142 F.3d at 644 n.5. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of age discrimination, which creates an "inference of unlawful discrimination." Willis, 808 F.3d at 644 (citation omitted). The plaintiff must show that he or she (1) is at least forty years of age, (2) suffered an adverse employment decision, (3) is qualified for the position, and (4) the position was filled

by a sufficiently younger person to create an inference of age discrimination. Id. Second, the burden of production shifts to the employer to prove a legitimate, nondiscriminatory reason for the adverse employment decision. Id. Third, the plaintiff must show that the employer's articulated reason was a pretext, and the actual reason was discrimination. Id. at 644-45; see also Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) ("[T]he plaintiff must convince the factfinder 'both that the reason was false, and that discrimination was the real reason.'" (citation omitted)). As to the latter showing, the plaintiff need not prove that "age was the sole cause of the challenged decision." Miller v. CIGNA Corp., 47 F.3d 586, 595 (3d Cir. 1995). Instead, he or she must demonstrate "by a preponderance of the evidence that there [was] a 'but-for' causal connection between the plaintiff's age and the employer's adverse action—i.e., that age actually played a role in the employer's decisionmaking process and had a determinative influence on the outcome of that process." Id. at 595-96 (cleaned up); see also Gross v. FBL Fin. Servs., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). To do so, the plaintiff may point to evidence showing "that the employer has previously discriminated against [him or] her, that the employer has discriminated against other persons within the plaintiff's protected class or within another protected class, or that the employer has treated more favorably similarly situated persons not within the protected class." Simpson, 142 F.3d at 645.

Retaliation claims under the ADEA and PHRA based on circumstantial evidence are likewise subject to the McDonnell Douglas framework. See Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015). The plaintiff must first establish a prima facie case of retaliation by showing: (1) protected employee activity; (2) adverse action by the employer after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action. Id. To establish a causal connection, a plaintiff may point to an "unusually suggestive" temporal proximity between the protected activity and the adverse action. Id. at 196 (citation omitted). Alternatively, a plaintiff may rely on "any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action." Id. If the plaintiff makes these showings, the burden of production shifts to the employer, who must present a legitimate, nonretaliatory reason for the adverse action. Id. at 193. If the employer does so, the burden shifts back to the plaintiff to show that the employer's articulated reason was false, and the real reason was retaliation. Id.

Both the ADEA and the PHRA supply a civil cause of action. See 29 U.S.C. § 626(c)(1); 43 P.S. § 962(c)(1). Prior to bringing suit, however, a plaintiff must satisfy the statutes' administrative exhaustion requirements. See 29 U.S.C. § 626(d)(1); 43 P.S. §§ 959(a), 962(c)(1). Specifically, a plaintiff must file a charge of discrimination with the EEOC and the PHRC. The charge must be filed with the PHRC within 180 days of "the alleged act of discrimination," 43 P.S. § 959(h), and with the EEOC within 300 days of "the alleged unlawful practice," 29 U.S.C. §§ 626(d)(1)(B), § 633(b); Colgan v. Fisher Sci. Co., 935 F.2d 1407, 1414 (3d Cir. 1991) ("[A] plaintiff in a deferral state such as Pennsylvania is entitled to the extended period of 300 days." (cleaned up)). A particular claim is deemed exhausted if it is "fairly within the scope of [1] the prior EEOC complaint, or [2] the investigation

arising therefrom." Simko v. U.S. Steel Corp., 992 F.3d 198, 207 (3d Cir. 2021) (quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984)).¹³ This is a "highly fact specific" inquiry, and courts must "careful[ly] examin[e] ... the nature of the relevant claims." Id.

13 Though Simko involved a claim under the Americans with Disabilities Act, the long-standing test for exhaustion that it recites applies equally to claims under the ADEA and PHRA. See, e.g., Kopko v. Lehigh Valley Health Network, 776 F. App'x 768, 773 (3d Cir. 2019).

With respect to an ADEA claim, a plaintiff must wait at least sixty days after filing the charge with the EEOC to bring suit. 29 U.S.C. § 626(d)(1); see also Fed. Express Corp. v. Holowecki, 552 U.S. 389, 392, 404, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) (stating that the ADEA sets "a waiting period during which the employee cannot file suit" and "does not condition the individual's right to sue upon the agency taking any action"). The ability to file a lawsuit under the ADEA is not conditioned on the plaintiff's receipt of a right to sue letter, see Holowecki, 552 U.S. at 404, 128 S.Ct. 1147, but if the EEOC issues such a letter, the plaintiff must initiate suit "within 90 days after the date of the receipt of such notice," 29 U.S.C. § 626(e).

PHRA claims are subject to different timing requirements. Once a charge is filed with the PHRC, the agency "has exclusive jurisdiction over the claim for a period of one year in order to investigate and, if possible, conciliate the matter." Burgh v. Borough Council of Montrose, 251 F.3d 465, 471 (3d Cir. 2001) (citing Clay v. Advanced Comput. Applications, 522 Pa. 86, 559 A.2d 917, 920 (1989)); see also 43 P.S. § 962(c)(1). Once that one-year period has expired—and without need of a right to sue letter—the plaintiff may proceed to court. See Burgh, 251 F.3d at 471 ("[N]otice of the right to sue is not required."). If the PHRC notifies the plaintiff that it is "closing the complaint," he or she must file suit "within two years after the date of notice." 43 P.S. § 962(c)(2).

2. Count IV

Count IV asserts that CBS—through its "hiring agent/employee" Roland—retaliated against McLaughlin in violation of the ADEA by failing to hire him as a movie driver for CBS's production of the television series One Dollar. (ECF No. 41, ¶¶ 201-16). Specifically, McLaughlin alleges that he engaged in protected activity by (1) "fil[ing] an EEOC charge in 2012 accusing Roland of age discrimination," (2) filing "a federal lawsuit in 2015 accusing Roland of age discrimination," and (3) "submit[ing] a complaint in writing to the Union in 2015 accusing Roland of both age discrimination and retaliation." (ECF No. 62, p. 7; ECF No. 41, ¶¶ 62, 66, 78-79, 205). He states that "Roland was aware of [his] prior protected conduct" and that, in retaliation, "Roland refused to hire [him]" for the One Dollar production in March/April 2018. (ECF No. 41, ¶¶ 14, 105-06, 207, 210). McLaughlin allegedly filed a pro se charge of discrimination and retaliation with the EEOC against CBS and Roland on January 4, 2019. (Id. ¶¶ 14, 119).¹⁴ CBS moves to dismiss Count IV on the ground that McLaughlin has failed to state a plausible claim for retaliation under the ADEA. (ECF No. 53, pp. 12-17). It argues that the claim fails with respect to all three of the prima facie elements as well as the third step of the McDonnell Douglas framework. (Id.). The Court will grant CBS's Motion to Dismiss Count IV.

14 McLaughlin asserts that he never received a response from the EEOC, despite him sending a follow-up letter on March 20, 2019. (ECF No. 41, ¶ 15). He believes that "this charge was not properly processed by the EEOC based in whole or in part due to a government shutdown." (Id.). For its part, CBS maintains that it "never received a charge of discrimination filed by [McLaughlin] from the EEOC and, prior to this litigation, was completely unaware that [he] had attempted to file such a charge." (ECF No. 53, p. 13). Nevertheless, the Court need not inquire into the sufficiency or the timeliness of this charge because the ADEA's exhaustion requirement is a "non-jurisdictional prerequisite," Ruehl v. Viacom, Inc., 500 F.3d 375, 384 (3d Cir. 2007), and CBS has not raised it as an affirmative defense at this time.

a. McLaughlin failed to show a causal connection between his protected activity and CBS's failure to hire him as a movie driver.

In seeking to hold CBS liable for retaliation under the ADEA, McLaughlin relies on Roland's actions and knowledge based on his alleged status as CBS's agent/employee. Courts generally hold that the ADEA incorporates respondeat superior liability. See 29 U.S.C. § 630(b) (defining "employer" to include "any agent of such a person"); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir. 1994) ("[W]e read § 630(b) as an unremarkable expression of respondeat superior—that discriminatory personnel actions taken by an employer's agent may create liability for the employer."); Miller v. Maxwell's Int'l, 991 F.2d 583, 587 (9th Cir. 1993) ("[T]he obvious purpose of this [agent] provision was to incorporate respondeat superior liability into the statute."); see also 8 Lex K. Larson, Employment Discrimination § 121.04 (2d ed. 2022 update) ("[T]he agency provision is given force as authorizing respondeat superior liability."). This means that, under the ADEA, "[t]he discriminatory actions of an agent 'may be imputed back to a principal to render the principal liable for its agent's statutory violations.'" Barbara Lindemann, Age Discrimination in Employment Law § 3.I.C.3 (2d ed. 2021 update) (citation omitted). For the doctrine of respondeat superior to apply, an employee must have acted within the scope of his or her employment, meaning that the employee "perform[ed] work assigned by the employer or engag[ed] in a course of conduct subject to the employer's control." Restatement (Third) of Agency §§ 2.04, 7.07(2) (Am. L. Inst. 2006); see also Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003) ("[T]raditional vicarious liability rules ordinarily make principals or employers vicariously liable for acts of their agents or employees in the scope of their authority or employment.").

The Court finds that McLaughlin has sufficiently pleaded that Roland served as CBS's agent on One Dollar and that he acted within the scope of his employment when he hired, or failed to hire, movie drivers. (ECF No. 41, ¶¶ 106, 206). As a general matter, then, CBS can be held liable under the ADEA for Roland's failure to hire McLaughlin in March or April of 2018 (provided that all of the elements of retaliation are met). But that does not mean that any and all of Roland's prior actions—pre-dating his employment with CBS—can form the basis of McLaughlin's retaliation claim against CBS. See Restatement (Third) of Agency § 2.04 cmt. b (explaining that the respondeat superior doctrine is "limited to the employment relationship and to conduct falling within the scope of that relationship").

With that necessary background, the Court turns to the question of whether McLaughlin has stated a claim of retaliation against CBS. The third element of a prima facie claim of retaliation requires a plaintiff to show a causal connection between the employee's protected activity

and the employer's adverse action. Daniels, 776 F.3d at 193. A plaintiff "cannot establish that there was a causal connection without some evidence that the individuals responsible for the adverse action knew of the plaintiff's protected conduct at the time they acted." Id. at 196. Upon a sufficient allegation of the employer's knowledge of the employee's protected activity, the requisite causal link can generally be demonstrated in two ways. First, a plaintiff may point to an "unusually suggestive" temporal proximity between the protected activity and the adverse action. Id. (citation omitted). Alternatively, a plaintiff may rely on "any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action." Id.

The Court holds that McLaughlin failed to demonstrate a causal connection between his protected activity and CBS's failure to hire him as a movie driver for the One Dollar production. There was no unusually suggestive temporal proximity because three years passed between McLaughlin's latest protected activity in May 2015 and his failure to be hired in March/April 2018. Though "there is no bright line rule as to what constitutes unduly suggestive temporal proximity," LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007), a gap of three years is certainly insufficient, see, e.g., Daniels, 776 F.3d at 198 (rejecting ten-month gap); LeBoon, 503 F.3d at 233 (rejecting three-month gap); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2007) (rejecting five-month gap). Aside from timing, the circumstances as a whole do not establish a casual connection. McLaughlin argues that there was "intervening antagonism by the employer," Daniels, 776 F.3d at 196, because Roland previously retaliated against him by failing to hire him for a 2015 production called Banshee. (ECF No. 62, p. 10). The Court, however, declines to impute that antagonism to CBS, as it pre-dates Roland's employment with CBS by three years. In addition, even if it could be imputed to CBS, a single instance of antagonism is generally insufficient to show causation. See, e.g., Abramson v. William Paterson Coll., 260 F.3d 265, 288 (3d Cir. 2001) (referring to "evidence of ongoing antagonism" to support "the causal link necessary for retaliation" (emphasis added)); Hibbard v. Penn-Trafford Sch. Dist., 2014 WL 640253, at *19 (W.D. Pa. Feb. 19, 2014) (holding that "one antagonistic act" does not establish "a pattern of antagonism").

McLaughlin also argues that the One Dollar failure-to-hire was "Roland's first opportunity to retaliate against McLaughlin." (ECF No. 62, p. 9) (citing Lipschultz v. Holy Family Univ., 2017 WL 1331731, at *9 (E.D. Pa. Feb. 17, 2017)). But this assertion appears only in McLaughlin's brief, not in the Amended Complaint. See Katchur v. Thomas Jefferson Univ., 354 F. Supp. 3d 655, 671 (E.D. Pa. 2019) (rejecting plaintiff's "first opportunity to retaliate" argument where the complaint did not so allege); see also Voneida v. Pennsylvania, 508 F. App'x 152, 155 (3d Cir. 2012) ("[S]tatements in a brief are not a substitute for the allegations in the complaint."); Seeds of Peace Collective v. City of Pittsburgh, 453 F. App'x 211, 215 n.3 (3d Cir. 2011) ("[W]e do not consider factual allegations made in [the plaintiff's] brief but not pleaded in the complaint."); Hackensack Riverkeeper, Inc. v. Del. Ostego Corp., 450 F. Supp. 2d 467, 488 (D.N.J. 2006) ("A court is limited on a motion to dismiss to facts contained and alleged in the Complaint and may not consider facts raised for the first time by parties in a legal brief."). Moreover, the allegations that do

appear in the Amended Complaint suggest that Roland had many opportunities, even if indirectly, to retaliate against McLaughlin between 2015 and 2018. (ECF No. 41, ¶ 90) (alleging that "Roland conspired with Teamster officials Rossi and Ceoffe to blacklist him"); (id. ¶ 109) (alleging that Union officials "had conspired with local coordinators and captains including Roland ... to blacklist him").

Finally, McLaughlin argues that "Roland's prior justification for not hiring McLaughlin was false and a cover-up for age discrimination." (ECF No. 52, p. 10). In the Amended Complaint, he alleges that "Roland previously told federal investigators that McLaughlin was not qualified to drive ... a 'specialized' truck" on One Dollar. (ECF No. 41, ¶ 106). McLaughlin maintains that this reason was false because he had driven such a truck "many times," including on a trip with Roland. (Id.). Under certain circumstances, inconsistencies or discrepancies in an employer's stated reason for an adverse employment action can "constitute evidence of [a] causal link." Abramson, 260 F.3d at 289. But not so here. Immediately after alleging that Roland gave a false reason for not hiring McLaughlin, the Amended Complaint states that Roland hired his friends and girlfriend instead. (ECF No. 41, ¶¶ 106-07, 109). Thus, the facts alleged support an inference of nepotism and favoritism, not an "inference of retaliatory animus." LeBoon, 503 F.3d at 233.

For those reasons, the Court concludes that McLaughlin failed to show a causal connection between his protected activity and CBS's failure to hire him as a movie driver. He thus cannot satisfy the third element of a prima facie claim of retaliation. The Court need not address any of the remaining elements. Count IV will be dismissed.

3. Counts V and VI

Count V asserts that TriStar—through its "hiring agents/employees" Kraus and Conforti—retaliated against McLaughlin in violation of the ADEA by failing to hire him as a movie driver for TriStar's production of the movie A Beautiful Day in the Neighborhood ("A Beautiful Day"). (ECF No. 41, ¶¶ 217-28). Like in Count IV against CBS, in Count V, McLaughlin alleges that he engaged in protected activity by "fil[ing] an EEOC charge, submitt[ing] a complaint letter to the Union, and litigat[ing] a lawsuit ... alleging age discrimination and/or retaliation." (ECF No. 68, p. 19; ECF No. 41, ¶ 218). However, unlike in Count IV, McLaughlin does not clarify the dates or circumstances of the protected activity that is relevant to Count V. After reviewing the Amended Complaint, the Court finds that McLaughlin could be referring to any of the following activities: (1) reporting to the Union in 2011/2012 that Kraus hired younger, inexperienced drivers for the production of Batman; (2) filing EEOC charges in 2012 and federal lawsuits in 2015 against M. Scott, Roland, Summit Entertainment, 20th Century Fox, and Boss Production complaining of age discrimination; (3) complaining to the Union in May 2015 about Roland engaging in age discrimination and retaliation; (4) complaining to the Teamsters in June 2015 about age discrimination by M. Scott; and (5) complaining to the producer of Fences in March 2016 that Conforti discriminated against him. (ECF No. 41, ¶¶ 51, 62, 66, 78-79, 84, 85).¹⁵ McLaughlin alleges that

15 The Court deliberately does not include McLaughlin's allegation that he complained to the Union at some unnamed time (presumably between March/April and August/September 2018) about Kraus and others blacklisting him "in order to secure highly desirable movie driving jobs for themselves, their friends, and family members." (ECF No. 41, ¶ 109). Though that complaint names Kraus, it does not constitute protected activity because it complains of nepotism and favoritism, not age discrimination. See Daniels, 776 F.3d at 193 (stating that to constitute protected activity, "the opposition [must be] to discrimination based on a protected category, such as age").

"Kraus and Conforti were aware of [his] prior protected conduct" and that they "refused to hire him" as a movie driver for A Beautiful Day in August/September 2018. (Id. ¶¶ 111, 220, 223). Count VI follows directly from Count V, alleging that TriStar —acting through Kraus and Conforti—discriminated against McLaughlin based on age in violation of the ADEA when it failed to hire him as a movie driver for A Beautiful Day. (ECF No. 41, ¶¶ 229-37).

On July 1, 2019, McLaughlin filed an EEOC questionnaire against TriStar, Kraus, and Conforti asserting age discrimination and retaliation. (Id. ¶¶ 17, 137). That was followed by the filing of a charge of discrimination and retaliation on November 25, 2019. (Id. ¶¶ 18, 137). The EEOC issued a right to sue letter on April 1, 2021. (Id. ¶ 20).

TriStar moves to dismiss Count V on the ground that McLaughlin failed to state a prima facie claim of retaliation under the ADEA. (ECF No. 55, pp. 23-25). TriStar similarly argues that Count VI should be dismissed because McLaughlin failed to state a prima facie case of age discrimination under the ADEA. (Id. at 20-23). Only the former argument succeeds. The Court will grant TriStar's Motion to Dismiss Count V, but it will deny TriStar's Motion to Dismiss Count VI.

a. McLaughlin failed to state a prima facie claim of retaliation against TriStar because the allegations do not establish a causal connection between his protected activity and TriStar's failure to hire him as a movie driver.

For the same reasons articulated above with respect to Count IV against CBS (see supra III.C.2.a), the Court concludes that Count V against TriStar must be dismissed. McLaughlin may have sufficiently pleaded that Kraus and Conforti were TriStar's agents/employees on the production of A Beautiful Day and, thus, that TriStar could be responsible for their failure to hire McLaughlin as a movie driver. (ECF No. 41, ¶¶ 111, 219). But he has not sufficiently pleaded facts that show a causal connection between his protected activity and his failure to be hired. Given that the gap between McLaughlin's latest protected activity (March 2016) and his failure to be hired (August/September 2018) was over two years, there was no unusually suggestive temporal proximity. In addition, there are no other factual allegations, considered as a whole, that support an inference of causation. McLaughlin argues in his brief that Kraus and Conforti retaliated against him at their first opportunity. (ECF No. 68, p. 19). The Court disregards that argument because it is not alleged in the Amended Complaint. McLaughlin also argues that Kraus and Conforti engaged in "pretext and antagonism." (Id. at 20). He specifically refers to Kraus and Conforti's failure to hire him for the 2014 production of Concussion. (ECF No. 41, ¶ 65). But that incident cannot be imputed to TriStar because it did not occur during the course of Kraus and Conforti's employment. McLaughlin also refers to Kraus's failure to respond to the Union's September 2018 request that he explain why he did not hire McLaughlin for A Beautiful Day. (Id. ¶¶ 113, 117). That lack of response, however, does not show an inconsistency or discrepancy in Kraus's reasoning for not hiring McLaughlin. In short, McLaughlin has not pleaded facts that give rise to an inference

of retaliatory animus, and, therefore, cannot satisfy the third element of a prima facie claim of retaliation. The Court will dismiss Count V.

b. McLaughlin has stated a prima facie claim of age discrimination against TriStar.

A prima facie claim of age discrimination requires proof that the plaintiff (1) is at least forty years of age, (2) suffered an adverse employment decision, (3) is qualified for the position, and (4) the position was filled by a sufficiently younger person to create an inference of age discrimination. Willis, 808 F.3d at 644. The Court finds that McLaughlin has satisfied each of these elements. First, he is a member of a protected class under the ADEA because he was sixty-six years old in 2018. (ECF No. 41, ¶ 22). Second, he suffered an adverse employment decision when he was not hired as a movie driver for TriStar's production of A Beautiful Day. (Id. ¶¶ 111, 232). TriStar challenges this conclusion, arguing that McLaughlin never applied for a position. (ECF No. 55, pp. 21-22). At this stage, however, the Court must accept as true McLaughlin's allegation that he did, in fact, apply. (ECF No. 41, ¶ 111). Third, he was qualified for the position because he had a Class A commercial driver's license and at least ten years of experience working as a movie driver, including experience driving "almost every piece of movie equipment." (Id. ¶¶ 1, 24-26, 231). Fourth, instead of hiring McLaughlin, TriStar hired "substantially younger drivers" who were "less qualified" than him. (Id. ¶¶ 111, 233). TriStar disputes this by pointing to evidence outside the pleadings—namely its position statement in response to McLaughlin's EEOC charge. (ECF No. 55, pp. 22-23). The Court declines to consider that extrinsic evidence at this stage.¹⁶ The Court, therefore, finds that McLaughlin has pleaded a prima facie claim of age discrimination against TriStar. Count VI survives dismissal. See Sorgini v. Wissahickon Sch. Dist., 274 F. Supp. 3d 291, 297 (E.D. Pa. 2017) ("[I]f a plaintiff can allege the prima facie case required by the first step of McDonnell Douglas, the plaintiff will survive a motion to dismiss and no further inquiry under McDonnell Douglas is required at this stage.").

16 Regardless of McLaughlin's brief mention of TriStar's position statement in the Amended Complaint, (ECF No. 41, ¶ 137), that document is not "integral to" McLaughlin's claims, Burlington, 114 F.3d at 1426, nor are his claims against TriStar "based on the document," Pension Benefit, 998 F.2d at 1196. To the contrary, the position statement merely contains TriStar's version of the facts, and at the motion to dismiss stage, the Court must accept McLaughlin's version, which is presented in the Amended Complaint.

4. Counts VII, VIII, IX, and X (Against Union)

Count VII asserts that the Union retaliated against McLaughlin in violation of the ADEA by failing to refer him for employment as a movie driver and/or by causing employers not to hire him for three productions, including I'm Your Woman (October 2019), Sweet Girl (November 2019), and American Rust (early 2020 and March 2021). (ECF No. 41, ¶¶ 135-36, 138, 147, 238-50). Count IX makes the same claim of retaliation under the PHRA, though it is limited to McLaughlin's failure to be hired for American Rust. (Id. ¶¶ 262-75). Count VIII alleges that the Union discriminated against McLaughlin based on age in violation of the ADEA when it failed to refer him and/or caused him not to be hired for I'm Your Woman, Sweet Girl, and American Rust. (Id. ¶¶ 251-61). Count X asserts the same claim of age discrimination under the PHRA, but, again, it is limited to McLaughlin's failure to be hired for American Rust. (Id. ¶¶ 276-87). On June 25, 2020, McLaughlin cross-filed a charge of age discrimination and retaliation with the EEOC and PHRC against the Union (and others). (Id. ¶¶ 19, 142; ECF No. 66-1).¹⁷ The charge expressly mentions McLaughlin's failure to be hired on the productions of I'm Your Woman and Sweet Girl. (ECF No. 66-1, p. 8). It also refers to his failure to be hired on American Rust, though it does not name the production. (Id.). The EEOC issued a right to sue letter on April 28, 2021. (ECF No. 41, ¶ 20).

17 The Court may consider the EEOC/PHRC charge because it is a public record, see Pension Benefit, 998 F.2d at 1196, and because it is integral to and explicitly relied upon in the Amended Complaint, see Burlington, 114 F.3d at 1426. See, e.g., Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (in reviewing a dismissal under Rule 12(b)(6), considering "the formal charge" filed with the EEOC); Wormack v. Shinseki, 2010 WL 2650430, at *1 n.1 (W.D. Pa. July 1, 2010) ("[I]n the Third Circuit, it is well settled that a court may consider administrative documents, such as a plaintiff's EEOC charges and public records without converting the motion to dismiss to a motion for summary judgment.").

The Union moves to dismiss Counts VII, VIII, IX, and X based on two grounds. (ECF No. 51, pp. 13-18). First, the Union contends that McLaughlin failed to exhaust internal union remedies. Second, the Union argues that the claims are barred because McLaughlin failed to timely file his charge with the EEOC and PHRC. Both arguments fall short. The Court will deny the Union's Motion to Dismiss Counts VII, VIII, IX, and X.¹⁸

18 The Court will not address whether McLaughlin has stated prima facie claims of retaliation and discrimination against the Union because the Union has not raised that as a basis for dismissal (unlike CBS and TriStar, above). See Lee v. Park, 720 F. App'x 663, 666 (3d Cir. 2017) ("[I]t is the responsibility of neither the District Court nor this Court to make the parties' arguments for them; therefore, we will not engage in a freewheeling investigation into [a legal issue] without meaningful briefing on the subject."); Hunt Optics & Imaging, Inc. v. Greene, 2010 WL 3303792, at *1 (W.D. Pa. Aug. 19, 2010) ("[I]t is the parties' duty, not the courts', to present legal authority and arguments in support of a motion.").

a. McLaughlin was not required to exhaust internal union remedies.

The Union first argues that Counts VII, VIII, IX, and X should be dismissed because McLaughlin failed to exhaust his intra-union administrative remedies, as provided in the Union Constitution. (ECF No. 51, pp. 13-15, 17-18). The Union thus makes the same argument as it did with respect to McLaughlin's LMRDA claim at Count I. But as explained above (see supra III.A.4), the requirement that a union member exhaust internal remedies prior to bringing suit against a union stems from a provision of the LMRDA. See 29 U.S.C. § 411(a)(4) ("[A]ny such member may be required to exhaust reasonable hearing procedures ... within [a labor] organization, before instituting legal or administrative proceedings against such organizations or any officer thereof."). The requirement of internal exhaustion, therefore, applies to LMRDA claims, not any and all claims against a union. The Union has pointed to no precedent —nor can the Court find any precedent —requiring exhaustion of internal union remedies prior to bringing ADEA or PHRA claims against a union. See Martinez v. Int'l Bhd. of Elec. Workers, 352 F. App'x 737, 739-41 (3d Cir. 2009) (dismissing LMRDA claim based on failure to exhaust internal union remedies, but not applying that same analysis to ADEA and PHRA claims). The Court, therefore, concludes that McLaughlin was not required to exhaust the Union's internal remedies

with respect to his ADEA and PHRA claims. Moreover, even if he was, the Court would find internal exhaustion to be futile for the same reasons as it did with respect to the LMRDA claim.

b. McLaughlin timely filed his administrative charge with the EEOC and PHRC.

The Union next argues that Counts VII, VIII, IX, and X are time-barred based on McLaughlin's failure to file his administrative charge within the statutory periods. (ECF No. 51, pp. 15-18). McLaughlin cross-filed his administrative charge of age discrimination and retaliation with the EEOC and PHRC on June 25, 2020. (ECF No. 66-1, pp. 2-9). As to the ADEA claims, McLaughlin's charge was timely filed with respect to acts of discrimination or retaliation that occurred on or after August 30, 2019—i.e., 300 days prior to the filing. See 29 U.S.C. §§ 626(d)(1)(B), § 633(b). As to the PHRA claims, the charge was timely filed with respect to acts of discrimination or retaliation that occurred on or after December 28, 2019—i.e., 180 days prior to the filing. See 43 P.S. § 959(h).

The Court concludes that McLaughlin timely filed his EEOC/PHRC charge with respect to the ADEA and PHRA claims against the Union. The ADEA claims concern McLaughlin's failure to be hired as a movie driver for I'm Your Woman (October 2019), Sweet Girl (November 2019), and American Rust (early 2020 and March 2021). (ECF No. 41, ¶¶ 135-36, 138, 147). McLaughlin filed his charge with the EEOC within 300 days of those alleged unlawful acts. The PHRA claims, in turn, concern only his failure to be hired for American Rust. The charge was filed with the PHRC within 180 days of the initial adverse hiring decision. McLaughlin, therefore, complied with the statutory periods for filing his administrative charge. He also complied with the statutory periods for filing the present lawsuit—he initiated suit on June 28, 2021, within ninety days after receiving a right to sue letter from the EEOC on April 28, 2021, and more than one year after filing his charge with the PHRC on June 25, 2020. See 29 U.S.C. § 626(e); 43 P.S. § 962(c)(1). The Court finds that McLaughlin has satisfied the exhaustion requirements with respect to his ADEA and PHRA claims against the Union. Counts VII, VIII, IX, and X (as against the Union) survive dismissal.

5. Counts IX and X (Against Roland)

Counts IX and X allege that Roland retaliated and discriminated against McLaughlin in violation of the PHRA by failing to hire him for American Rust. (ECF No. 41, ¶¶ 262-87). Roland argues that Counts IX and X should be dismissed for two reasons. First, he argues that McLaughlin failed to exhaust his administrative remedies because Roland was not a named party in the PHRC charge. (ECF No. 49, pp. 7-9). Second, Roland argues that he does not qualify as an "employer" under the PHRA. (ECF No. 71, pp. 13-14). The first argument falls short, and the latter argument succeeds only with respect to the PHRA discrimination claim. The Court will deny Roland's Motion to Dismiss Count IX,¹⁹ and it will grant Roland's Motion to Dismiss Count X.

19 As with the ADEA and PHRA claims against the Union, the Court will not address whether McLaughlin has stated a prima facie claim of retaliation against Roland because he has not raised that as a ground for dismissal.

a. McLaughlin properly exhausted his PHRA claims against Roland.

Roland first argues that McLaughlin failed to satisfy the PHRA's exhaustion requirement because he did not

name Roland in the PHRC charge. (ECF No. 49, pp. 7-9). "A PHRA action ordinarily may be brought only against a party named in a PHRC charge." Rodriguez v. CP Dev., Inc., 2021 WL 3037712, at *11 (W.D. Pa. July 19, 2021) (citing 43 P.S. § 959(a)). However, "courts do not narrowly interpret this 'naming' requirement to apply only to the caption of the administrative charge." Vnuk v. Berwick Hosp. Co., 2015 WL 4984974, at *5 (M.D. Pa. Aug. 19, 2015). Rather, naming a person in the body of the charge is generally sufficient. See, e.g., Rodriguez, 2021 WL 3037712, at *11 ("[A] party need not be named in the caption so long as he is named in the body of the charge."); Vnuk, 2015 WL 4984974, at *5; Hitchens v. Greater Pittsburgh Cmty. Food Bank, 2006 WL 3051901, at *3 (W.D. Pa. Oct. 23, 2006); Zarazed v. Spar Mgmt. Servs., Inc., 2006 WL 224050, at *6 (E.D. Pa. Jan. 27, 2006); Kunwar v. Simco, 135 F. Supp. 2d 649, 654 (E.D. Pa. 2001); Glickstein v. Neshaminy Sch. Dis., 1999 WL 58578, at *6 (E.D. Pa. Jan. 26, 1999). Here, Roland was not named in the caption of McLaughlin's PHRC charge. But he was named numerous times in the body of the charge (although his name was misspelled as "Rolland"). (ECF No. 66-1, pp. 5-8). Moreover, the administrative charge refers specifically to Roland's failure to hire McLaughlin for American Rust—described as an "early 2020 ... film for which Mr. Rolland was to serve as transportation coordinator," but which was "halted due to the outbreak of COVID-19." (Id. at 8-9); (see also ECF No. 41, ¶ 138) (stating that "'American Rust' was supposed to start filming ... in early 2020" with "Roland [as] the Coordinator," but "filming was postponed due to the pandemic"). The Court, therefore, concludes that McLaughlin has complied with the PHRA's naming requirement. It further concludes that McLaughlin's PHRA claims against Roland were "fairly within the scope" of his PHRC charge, or at the very least, "the investigation arising therefrom." Simko, 992 F.3d at 207. This satisfies the PHRA's exhaustion requirement with respect to Counts IX and X against Roland.

b. The PHRA age discrimination claim against Roland must be dismissed because he is not an "employer."

Roland next argues that he is not a proper defendant for McLaughlin's PHRA claims because he is not an "employer." (ECF No. 71, pp. 13-14).²⁰ The discrimination provision of the PHRA applies to "any employer," 43 P.S. § 955(a), while the retaliation provision applies to "any person" (in addition to any "employer, employment agency or labor organization"), id. § 955(d). The statute defines "employer" to include "any person employing four or more persons within the Commonwealth [of Pennsylvania]." Id. § 954(b). It further defines "person" to include "one or more individuals," along with any "agent" or "employe[e]." Id. § 954(a).

20 The Court exercises its discretion to consider this argument, even though it was first raised in a reply brief, because it concerns a dispositive issue of law. See Sabert Corp. v. PWP Indus., Inc., 2015 WL 5007838, at *1 n.3 (D.N.J. Aug. 20, 2015) ("Even though a party generally may not raise a new argument for the first time in a reply brief, the trial court has discretion to consider new arguments.").

Roland clearly constitutes a "person" under the PHRA—in addition to being an "individual[]," he is alleged to be an "agent" or "employe[e]" of various production companies. For that reason, there is no doubt that Roland is a proper defendant with respect to the PHRA retaliation claim (Count IX), as the statute's retaliation provision expressly applies to "any person." Id. § 955(d); see also Clinkscales

v. Children's Hosp. of Phila., 2007 WL 3355604, at *7 (E.D. Pa. Nov. 9, 2007) ("In cases of alleged retaliation, the PHRA does permit individual liability."); Wein v. Sun Co., 936 F. Supp. 282, 283 (E.D. Pa. 1996) ("[U]nder the plain meaning of the language of the Pennsylvania statute, ... an individual ... may be held personally accountable for retaliatory discrimination."); cf. Dici v. Pennsylvania, 91 F.3d 542, 552-53 (3d Cir. 1996) (holding that a supervisor was a proper defendant under the PHRA's aiding and abetting provision, 43 P.S. § 955(e), because he was a "person").

But Roland is not a proper defendant for a PHRA discrimination claim, as he does not constitute an "employer." Nowhere in the Amended Complaint does McLaughlin allege that Roland "employ[ed] four or more persons." Id. § 954(b). Not only is the Amended Complaint entirely devoid of numbers, but it also contains allegations that are directly opposed to a finding that Roland himself employed anyone. Rather, as relevant to Count X, it states that Roland served as a Transportation Coordinator for American Rust and that he made hiring decisions with respect to the production's trucking and transportation needs. (ECF No. 41, ¶¶ 138, 283). The Court infers that Roland was employed by Showtime, the producer of American Rust. (Id. ¶ 138). Thus, Showtime was the employer, Roland was Showtime's employee or agent, and any persons hired by Roland would likewise have been employees of Showtime. The Court thus concludes that Roland does not meet the PHRA's definition of "employer"—though he is a "person," he did not "employ[] four or more persons." 43 P.S. § 954(b); see also Koslow v. Pennsylvania, 302 F.3d 161, 181 (3d Cir. 2002) (rejecting the plaintiff's argument that certain defendants were liable under the PHRA's discrimination provision as "agents" of his employer because "[n]o Pennsylvania authority supports [that] interpretation of the PHRA"). He is not a proper defendant for a PHRA discrimination claim, so the Court will dismiss Count X as against Roland.

6. Conclusion—Counts IV, V, VI, VII, VIII, IX, and X

The Court will grant Defendants' Motions to Dismiss with respect to Counts IV, V, and X (as against Roland) and deny them with respect to Counts VI, VII, VIII, IX, and X (as against the Union). Counts IV and V will be dismissed because they fail to establish the requisite causal connection to state a claim under the ADEA for retaliation against CBS or TriStar. Count X will be dismissed with respect to Roland because he is not a proper defendant for a PHRA discrimination claim. The remaining counts survive dismissal. Count VI states a prima facie claim of age discrimination against TriStar. Counts VII, VIII, IX, and X have been successfully exhausted—there was no requirement that McLaughlin exhaust internal union remedies; the administrative charge was timely filed; and Roland was properly named in the body of the charge.

D. Count XI — NLRA Breach of Duty of Fair Representation (Against Union)

Count XI alleges that the Union breached its duty of fair representation under the NLRA by "failing or refusing to refer him for employment" and by "causing employers not to hire him for retaliatory reasons." (ECF No. 41, ¶¶ 288-302). See, e.g., 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 271, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009) ("[T]he NLRA has been interpreted to impose a 'duty of fair representation' on labor unions."); Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 743, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988) (describing the

duty of fair representation as being "judicially implied"). The Union argues that Count XI should be dismissed because (1) the Court lacks jurisdiction over the NLRA claim and (2) McLaughlin failed to bring the claim within the applicable statute of limitations. (ECF No. 51, pp. 18-20). Both arguments fall short. The Court will deny the Union's Motion to Dismiss Count XI.

1. NLRA Background

"[A] labor organization has a statutory duty of fair representation under the [NLRA]." Breininger, 493 U.S. at 73, 110 S.Ct. 424. See generally 29 U.S.C. §§ 151-169. This duty is "implied from [a union's] status under § 9(a) of the NLRA as the exclusive representative of the employees in [a bargaining] unit." Marquez v. Screen Actors Guild, 525 U.S. 33, 44, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998); see also 29 U.S.C. § 159(a). A union must "serve the interests of all members without hostility or discrimination toward any, [] exercise its discretion with complete good faith and honesty, and [] avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Accordingly, "a union breaches the duty of fair representation when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith." Marquez, 525 U.S. at 44, 119 S.Ct. 292. "In the hiring hall context, ... an employee may bring a claim solely against the union based on its wrongful refusal to refer him for work." Breininger, 493 U.S. at 82, 110 S.Ct. 424; see also O'Rourke, 847 F. Supp. at 1221 ("[T]he allegation that a union discriminated against a dissident member by refusing to refer him for employment states a claim for breach of the duty of fair representation that is cognizable in federal court.").

2. The Court has jurisdiction over McLaughlin's NLRA claim.

The Union first argues that the Court lacks jurisdiction over McLaughlin's NLRA claim. (ECF No. 51, pp. 18-20). It relies on a doctrine known as "Garmon preemption," which stems from the Supreme Court's decision in Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). That case held that, "[w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board."²¹ Garmon, 359 U.S. at 245, 79 S.Ct. 773. In other words, "[n]either state nor federal courts possess jurisdiction over claims" based on "activity that the NLRA protects, prohibits, or arguably protects or prohibits." Breininger, 493 U.S. at 74, 110 S.Ct. 424; Wis. Dep't of Indus., Labor & Human Rels. v. Gould, Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986); see also Voilas v. GMC, 170 F.3d 367, 378 (3d Cir. 1999) ("Garmon preemption protects the exclusive jurisdiction of the NLRB over unfair labor practice proceedings.").

21 Section 7 of the NLRA protects employees' rights "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining." 29 U.S.C. § 157. Section 8 of the NLRA prohibits employers and labor organizations from engaging in "unfair labor practices." Id. § 158.

The Union contends that Garmon controls with respect to Count XI, arguing that McLaughlin's "assertions that Local 249 engaged in unfair labor practices regarding the operation of the hiring hall are not properly before this Court" and "must be deferred to the NLRB." (ECF No. 51, p. 19). That argument fails. Following its decision in Garmon, the Supreme

Court has held numerous times that "Garmon's pre-emption rule does not extend to suits alleging a breach of the duty of fair representation." Breininger, 493 U.S. at 74, 110 S.Ct. 424; see also Marquez, 525 U.S. at 49, 119 S.Ct. 292 ("[W]hen a plaintiff alleges a breach of the duty of fair representation, this claim is cognizable in the first instance in federal court."); Vaca, 386 U.S. at 188, 87 S.Ct. 903 ("[T]he unique role played by the duty of fair representation doctrine in the scheme of federal labor laws ... render[s] the Garmon pre-emption doctrine inapplicable."). In doing so, the Supreme Court explained that federal courts are not deprived of jurisdiction over fair representation claims merely because "a breach of the duty of fair representation might also be an unfair labor practice." Breininger, 493 U.S. at 76, 110 S.Ct. 424. The Supreme Court, moreover, expressly rejected a special rule (i.e., an exception to the exception) that would apply Garmon to "fair representation complaints arising out of the operation of union hiring halls." Id. It is clear, then, that Garmon preemption is inapplicable to McLaughlin's duty of fair representation claim.²² The Court holds that it has jurisdiction over Count XI. See id. at 83, 110 S.Ct. 424 ("We have always assumed that independent federal jurisdiction exists over fair representation claims because the duty is implied from the grant of exclusive representation status, and the claims therefore 'arise under' the NLRA.").

22 "Employees, of course, may not circumvent the primary jurisdiction of the NLRB simply by casting statutory claims as violations of the union's duty of fair representation." Beck, 487 U.S. at 743, 108 S.Ct. 2641; see also Marquez, 525 U.S. at 49, 119 S.Ct. 292 ("The ritualistic incantation of the phrase 'duty of fair representation' is insufficient to invoke the primary jurisdiction of federal courts."). But there is no contention that McLaughlin has done that here. Indeed, the Union recognizes that McLaughlin is alleging that it "breached its duty of fair representation in violation of the NLRA by acting with discriminatory intent and bad faith by blocking [his] access to movie and/or television production work." (ECF No. 51, p. 18). That has all the hallmarks of a true duty of fair representation claim—e.g., allegations not just that "the union violated the statute," but that the union's conduct was "arbitrary, discriminatory, or in bad faith." Marquez, 525 U.S. at 50, 119 S.Ct. 292.

3. The NLRA claim is not time-barred, but it is limited in scope.

The Union next argues that Count XI is barred by the applicable statute of limitations. (ECF No. 51, p. 20). The NLRA does not expressly set forth a statute of limitations for a claim alleging a breach of the duty of fair representation—understandably so, given that such a claim is itself implicit in the statute. See DelCostello, 462 U.S. at 158, 103 S.Ct. 2281. As explained above (see supra III.A.3), when Congress "fails to supply an express statute of limitations" for a federal cause of action, courts must generally "apply the most closely analogous statute of limitations under state law." Reed, 488 U.S. at 323, 109 S.Ct. 621 (quoting DelCostello, 462 U.S. at 158, 103 S.Ct. 2281). However, there is "a closely circumscribed exception to [that] general rule." Id. at 324, 109 S.Ct. 621. "When a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking," courts should decline to borrow the state rule and should instead apply the federal rule. DelCostello, 462 U.S. at 172, 103 S.Ct. 2281.

The Supreme Court applied that exception in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The

plaintiffs in DelCostello were union members who sued both their employer and their union, alleging that the employer breached the collective bargaining agreement by discharging them—a claim under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185—and that the union breached the duty of fair representation "by mishandling the ensuing grievance-and-arbitration proceedings" —a claim under the NLRA. Id. at 154, 164, 103 S.Ct. 2281. Rather than borrowing a state statute of limitations for these "hybrid § 301/fair representation claim[s]," the Supreme Court adopted the six-month statute of limitations found in section 10(b) of the NLRA, 29 U.S.C. § 160(b), which governs unfair labor practice claims. Id. at 155, 165, 103 S.Ct. 2281. The Supreme Court explained that, practically speaking, the plaintiffs' "hybrid" claims were "inextricably interdependent." Id. at 164-65, 103 S.Ct. 2281. To prevail against either the employer or the union (and no matter whether they "sue[d] one, the other, or both"), the plaintiffs "must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the [u]nion." Id. at 165, 103 S.Ct. 2281 (citation omitted). Accordingly, their suit constituted "a direct challenge to the private settlement of disputes under the collective-bargaining agreement." Id. (cleaned up). The Supreme Court thus held that the federal statute of limitations was more "apt than any of the suggested state-law parallels" because it was "actually designed to accommodate a balance of interests very similar to that at stake here"—namely, between "the national interests in stable bargaining relationships and finality of private settlements" and a union member's interest in "setting aside what he views as an unjust settlement under the collective-bargaining system." Id. at 169, 171, 103 S.Ct. 2281 (citation omitted).

In this case, the Union relies on DelCostello for the proposition that McLaughlin's NLRA claim is subject to section 10(b)'s six-month statute of limitations. (ECF No. 51, p. 20). McLaughlin, for reasons unknown, does not challenge that conclusion. (ECF No. 64, p. 19). But there is a fundamental problem with the parties' analysis (or rather, lack thereof): DelCostello only applies to hybrid claims, and neither party makes any argument regarding whether McLaughlin's claim is or is not hybrid in nature. That distinction is key, as the Third Circuit has twice held, subsequent to DelCostello, that a district court erred by applying section 10(b)'s six-month statute of limitations to a non-hybrid claim. See Bullock, 435 F.3d at 300-01; Brenner, 927 F.2d at 1293-95. Both Brenner and Bullock involved allegations that a union breached its duty of fair representation by suspending job referrals from a hiring hall and, significantly, did not involve any allegations that an employer breached a collective bargaining agreement. In each case, the Third Circuit held that "DelCostello was inapposite" and remanded for the district court to determine the most closely analogous state statute of limitations. Bullock, 435 F.3d at 300-01; Brenner, 927 F.2d at 1295. The Third Circuit reasoned that, "[b]ecause the plaintiffs were only asserting that their union wrongfully refused to refer them from its hiring hall," Bullock, 435 F.3d at 300-01, each dispute was "entirely internal to the union" and would "have no more than an indirect influence on the union's ability to negotiate effectively with those employers who hire [] through the hiring hall," Brenner, 927 F.2d at 1295. As such, "the [federal] interest in the rapid resolution of labor disputes"—which underscores section 10(b)'s statute of limitations—did not "outweigh the union member's interest in vindicating his

rights." Brenner, 927 F.2d at 1295; see also Bullock, 435 F.3d at 301. For those reasons, the Third Circuit turned to state, rather than federal, law for the applicable statute of limitations.

The Court finds that Brenner and Bullock are controlling here. Nowhere in the Amended Complaint does McLaughlin assert an LMRA claim against an employer for breach of a collective bargaining agreement.²³ Rather, in Count XI, McLaughlin asserts solely that the Union breached its duty of fair representation by blacklisting him from referrals for movie driver positions. Unlike in DelCostello, that claim is not dependent upon an LMRA claim against an employer, as McLaughlin need not show that an employer breached a collective bargaining agreement in order to show that the Union violated its duty of fair representation. McLaughlin's NLRA claim is, therefore, non-hybrid, making DelCostello inapplicable. Furthermore, based on the similarity of the facts alleged, this case is indistinguishable from Brenner and Bullock.

23 McLaughlin does raise claims against potential employers—including claims under RICO and the ADEA and PHRA—but none of those claims can be said to arise under section 301 of the LMRA because there is no allegation that the employers violated any collective bargaining agreement. See 29 U.S.C. § 185.

Pursuant to those cases, the Court must borrow the most closely analogous state statute of limitations. The Court does not have the benefit of any briefing on this issue, and relevant caselaw is sparse. At least two district courts within the Third Circuit have applied state personal injury statutes of limitation to non-hybrid duty of fair representation claims. See, e.g., Cromwell v. Int'l Union, 2010 WL 5175038, at *5 (D.V.I. Dec. 6, 2010); Morris v. Scardelletti, 1995 WL 120224, at *2 (E.D. Pa. Mar. 14, 1995). Another has applied the state statute of limitations for breach of fiduciary duty. See, e.g., Kilpatrick v. Sheet Metal Workers Int'l Ass'n Loc. Union No. 19, 1996 WL 635691, at *2-3 (E.D. Pa. Oct. 30, 1996). The Court need not determine which is more analogous, as Pennsylvania has adopted the same two-year limitations period for personal injury claims and breach of fiduciary duty claims. See 42 Pa. C.S. § 5524(2), (7); Maillie v. Greater Del. Valley Health Care, 156 Pa.Cmwlth. 582, 628 A.2d 528, 532 (1993) (stating that 42 Pa. C.S. § 5524(7) "provides a two-year statute of limitations for commencing proceedings based upon ... breach of a fiduciary duty"); Doner v. Jowitt & Rodgers Co., 299 Pa.Super. 492, 445 A.2d 1237, 1239 & n.2 (1982) ("The statute of limitations applicable to a claim for personal injuries ... [is] two years ...." (citing 42 Pa. C.S. § 5524(2))). Accordingly, McLaughlin's NLRA claim is subject to a two-year statute of limitations.

For the same reasons as in Count I (see supra III.A.3), the Court will apply the discovery rule, rather than the continuing violation doctrine, to determine the timeliness of McLaughlin's allegations in Count XI.²⁴ Under the discovery rule, "[t]he limitations period for a fair representation claim begins to run when the plaintiff knows or reasonably should know of the acts contributing to the union's wrongdoing in failing to adequately represent

24 Just as with his LMRDA claim, McLaughlin has pleaded a series of discrete acts that are individually actionable under the NLRA. Each instance of the Union failing to refer McLaughlin for a movie driver position or causing him not to be hired states a claim for breach of the duty of fair representation, so long as the Union's conduct was arbitrary, discriminatory, or in bad faith. The continuing violation doctrine is, therefore, inapplicable, and the default discovery rule applies.

the member's interests." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 593 (3d Cir. 2005). The clock thus began to run each time McLaughlin knew or should have known of the Union's blacklisting activities. Just as in Count I, then, Count XI is timely with respect to allegations of blacklisting that occurred on or after June 28, 2019—two years prior to the filing of this lawsuit. (See ECF No. 41, ¶¶ 126-28, 135-36, 138, 144-45, 147, 149, 151-52).²⁵ The Court holds that McLaughlin's NLRA claim is not time-barred.

25 All earlier allegations of blacklisting fall outside the statute of limitations. (See ECF No. 41, ¶¶ 60, 63-65, 70-74, 83, 85-86, 105-06, 111, 116).

4. Conclusion—Count XI

The Court will deny the Union's Motion to Dismiss Count XI. The NLRA claim is not subject to the exclusive jurisdiction of the NLRB, and it is not barred by the applicable statute of limitations. Count XI survives dismissal.

E. Count XII — PA Common Law Interference with Prospective Employment (Against Union, M. Scott, Roland, Kraus, and Conforti)

Finally, in Count XII, McLaughlin asserts that certain Defendants violated Pennsylvania common law by intentionally interfering with his prospective employment as a movie driver. (ECF No. 41, ¶¶ 303-13). Defendants raise multiple arguments in support of dismissal. First, they contend that Count XII is barred by the applicable statute of limitations. (ECF No. 51, p. 22; ECF No. 55, pp. 26-27). Second, Defendants maintain that McLaughlin failed to state a claim upon which relief can be granted for at least two reasons. (ECF No. 49, pp. 10-11; ECF No. 51, pp. 20-21; ECF No. 55, pp. 25-26). Third, they argue that McLaughlin's state law claim is preempted by the NLRA. (ECF No. 51, pp. 21-22; ECF No. 49, pp. 11-13). Fourth, they argue that the Court should decline to exercise supplemental jurisdiction over the state law claim. (ECF No. 49, p. 13). The first two arguments prove dispositive. The Court will grant Defendants' Motions to Dismiss Count XII.

1. Pennsylvania Common Law Background

Pennsylvania has long recognized "an action in tort for an intentional, unprivileged interference with contractual relations." Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175, 1182 (1978) (quoting Birl v. Phila. Elec. Co., 402 Pa. 297, 167 A.2d 472, 474 (1960)). To state a claim for intentional interference with prospective contractual relations, a plaintiff must show: (1) the existence of a prospective contractual relationship between the plaintiff and a third party; (2) intentional and improper action by the defendant that is specifically intended to prevent a prospective relationship from occurring; (3) the absence of privilege or justification for the defendant's actions; and (4) actual legal damage as a result of the defendant's conduct. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 208, 412 A.2d 466 (1979); Strickland v. Univ. of Scranton, 700 A.2d 979, 985 (Pa. Super. 1997); see also Crivelli v. GMC, 215 F.3d 386, 394 (3d Cir. 2000) (stating that "Pennsylvania has expressly adopted the Restatement (Second) of Torts, which states that a necessary element of this tort is improper conduct by the alleged tortfeasor" (citing Adler, 393 A.2d at 1183; Restatement (Second) of Torts §§ 766-67 (Am. L. Inst. 1979))).

As to the first element, the term "prospective contractual relationship" refers to "something less than a contractual

right" and "something more than a mere hope." Thompson, 488 Pa. at 209, 412 A.2d 466. It does not require "certainties," but rather "reasonable likelihood or probability." Id. (quoting Glenn v. Point Park Coll., 441 Pa. 474, 272 A.2d 895, 898-99 (1971)). In other words, the plaintiff must show that, "but for the wrongful acts of the defendant," there was a "reasonable probability" that a contractual relationship would have formed. Id. (quoting Glenn, 272 A.2d at 898-99). This is an "objective standard" which must be supported with "adequate proof." Glenn, 272 A.2d at 899.

The second element requires purposeful conduct along with "a sufficient allegation of specific intent." Id. at 899 ("The defendant must not only have intended the interference, but must have acted in part at least for the purpose of accomplishing it."). The plaintiff need not show that the defendant acted with "ill-will" or "malevolent spite," but instead must show that he or she acted with "an intention to interfere with the plaintiff's prospective contractual relation." Yaindl v. Ingersoll-Rand Co. Standard Pump-Aldrich Div., 281 Pa.Super. 560, 422 A.2d 611, 622 n.11 (1980). The second element also requires that the defendant's conduct be "improper." Crivelli, 215 F.3d at 394 (citing Adler, 393 A.2d at 1183). To determine the propriety of the defendant's conduct, courts must consider: (1) the nature of the actor's conduct; (2) the actor's motive; (3) the interests of the other with which the actor's conduct interferes; (4) the interests sought to be advanced by the actor; (5) the proximity or remoteness of the actor's conduct to interference; and (6) the relationship between the parties. Strickland, 700 A.2d at 985 (citing Restatement (Second) of Torts § 767).

The final two elements are more straightforward. As to the third element, the plaintiff must show, "as part of his prima facie case," that "the defendant's conduct was not justified" or privileged. Triffin v. Janssen, 426 Pa.Super. 57, 626 A.2d 571, 574 n.3 (1993); see also Yaindl, 422 A.2d at 625 n.15 ("Pennsylvania ... follow[s] the minority rule by requiring that the lack of justification be pleaded by the plaintiff."). A defendant's conduct is privileged if (1) he has a legally protected interest, (2) he acts or threatens to act to protect the interest, and (3) the act or threat to act utilizes proper means. Ruffing v. 84 Lumber Co., 410 Pa.Super. 459, 600 A.2d 545, 548 (1991); see also Glenn, 272 A.2d at 899 (stating that "privileged conduct" may include "interferences which are sanctioned by the 'rules of the game' which society has adopted" (cleaned up)). With respect to the fourth element, the plaintiff must show "injury or damage resulting from the allegedly wrongful act." Glenn, 272 A.2d at 900.

2. McLaughlin's tortious interference claim is not time-barred, but it is limited in scope.

Defendants first argue that Count XII is barred by the applicable statute of limitations. (ECF No. 51, p. 22; ECF No. 55, pp. 26-27). Pennsylvania imposes a two-year statute of limitations upon claims for intentional interference with contractual relations. See 42 Pa. C.S. § 5524(7); Maverick Steel Co. v. Dick Corp., 54 A.3d 352, 355 (Pa. Super. 2012).²⁶

26 The Court must apply Pennsylvania's statute of limitations to McLaughlin's state law claim, over which the Court has supplemental jurisdiction. See Sköld v. Galderma Labs., L.P., 99 F. Supp. 3d 585, 596 (E.D. Pa. 2015) ("Absent a borrowing statute, a federal court exercising supplemental jurisdiction applies the forum state's statute of limitations."); cf. Lafferty v. Gito St. Riel, 495 F.3d 72, 76 (3d Cir. 2007) ("[A] federal court must apply the substantive laws of its forum state in diversity actions, and these include state statutes of limitations." (citing Guaranty Trust Co. v. York, 326 U.S. 99, 110, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938))).

The statute begins to run when the "cause of action accrues," that is, "when an injury is inflicted and the corresponding right to institute a suit for damages arises." Gleason v. Borough of Moosic, 609 Pa. 353, 15 A.3d 479, 484 (2011); Bednar v. Marino, 435 Pa.Super. 417, 646 A.2d 573, 577 (1994). Applying those principles to this case means that the two-year statute of limitations began to run for McLaughlin each time Defendants' blacklisting resulted in his failure to be hired as a movie driver. As with Count I (see supra III.A.3) and Count XI (see supra III.D.3), McLaughlin's allegations of blacklisting that occurred on or after June 28, 2019—two years prior to the filing of this lawsuit—render Count XII timely with respect to each of the named Defendants. (See ECF No. 41, ¶¶ 126-28, 135-36, 138, 144-45, 147, 149, 151-52).²⁷ The Court, therefore, holds that McLaughlin's tortious interference claim is not time-barred.

27 However, any allegations of blacklisting that pre-date June 28, 2019, are untimely. (See ECF No. 41, ¶¶ 60, 63-65, 70-74, 83, 85-86, 105-06, 111, 116).

3. McLaughlin failed to state a claim upon which relief can be granted because his allegations do not establish a prospective employment relationship between him and any production company.

Defendants next contend that McLaughlin failed to state a claim upon which relief can be granted. Specifically, they argue that McLaughlin's allegations are insufficient to establish a "prospective employment relationship" between him and any production company. (ECF No. 49, pp. 10-11; ECF No. 51, p. 21). The individual Defendants also argue that Count XII fails because "they are not alleged to have been third parties" to McLaughlin's prospective employment contracts. (ECF No. 55, pp. 25-26). Both arguments challenge the sufficiency of the Amended Complaint with respect to the first element of a tortious interference claim—the existence of a prospective contractual relationship between McLaughlin and a third party. The Court finds that Defendants' first argument succeeds and, therefore, need not address the second argument.

A prospective contractual relationship refers to "something less than a contractual right" and "something more than a mere hope." Thompson, 488 Pa. at 209, 412 A.2d 466. The plaintiff must show a "reasonable probability" that a contract would have arisen absent the defendant's interference. Id.; Glenn, 272 A.2d at 898-99. McLaughlin has failed to make that showing here. He alleges that Defendants "engaged in purposeful action to prevent McLaughlin from being hired as a driver for most Pittsburgh-based television/motion picture productions over the past decade." (ECF No. 41, ¶ 310). McLaughlin further alleges that he "should have been hired" as a movie driver "[d]ue to his prior experience and seniority." (Id. ¶ 309). But that is not enough to give rise to a prospective contractual relationship under Pennsylvania law. By pointing to his qualifications and asserting, without any factual support, that he "should have been hired," McLaughlin is alleging nothing more than a mere hope of future employment—perhaps a good hope, but a hope nonetheless. McLaughlin may have been qualified for employment as a movie driver, but his qualifications

alone do not establish a reasonable probability that he would have been hired absent the alleged blacklisting because there may have been many qualified applicants. Instead, McLaughlin must show "something more" that elevates his hope of employment to a reasonable probability of employment. See Thompson, 488 Pa. at 209, 412 A.2d 466.

A careful reading of the Amended Complaint reveals only two instances of the required "something more"—namely, when a production company and/or its agent specifically requested that McLaughlin be hired, but certain Defendants interfered and blocked his hiring. (ECF No. 41, ¶¶ 60-61, 71-74). However, both of those instances fall outside the two-year statute of limitations, as they occurred in 2011 and 2015. Those untimely allegations cannot support McLaughlin's tortious interference claim, and McLaughlin does not make any similar factual averments with respect to his timely allegations of blacklisting. Absent those, the Court finds that the Amended Complaint fails to set forth sufficient facts to establish a prospective employment relationship between McLaughlin and any production company—an essential element of his tort claim. For that reason, the Court will dismiss Count XII.

4. Conclusion—Count XII

The Court will grant Defendants' Motions to Dismiss Count XII. McLaughlin's tortious interference claim is timely —at least with respect to allegations of blacklisting in 2019, 2020, and 2021. Nevertheless, those timely allegations are not coupled with sufficient facts to show a reasonable probability that McLaughlin would have been hired as a movie driver absent Defendants' interference. McLaughlin has, therefore, failed to state a claim for intentional interference with prospective employment. Count XII will be dismissed.²⁸

28 The Court need not address the individual Defendants' argument that Count XII fails because they were not third parties to McLaughlin's prospective employment contracts. Nor need the Court address Defendants' remaining arguments concerning NLRA preemption and supplemental jurisdiction.

IV. CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part Defendants' Motions to Dismiss. (ECF Nos. 48, 50, 52, 54). The motions will be denied with respect to Counts I, VI, VII, VIII, IX, X (as against the Union), and XI. The motions will be granted with respect to Counts II, III, IV, V, X (as against Roland), and XII, and those counts will be dismissed. An Order of Court will follow.